exv10w14



 




Exhibit 10.14




Execution Copy















REGISTRATION RIGHTS AGREEMENT




by and among




NRG ENERGY, INC.




and




THE HOLDERS NAMED HEREIN













Dated as of December 5, 2003




































 












Table of Contents




	 	 	 	 	 	 	 
	 	 	 	 	Page
	1.

	 	Definitions
	 	 	1	 
	2.

	 	Securities Act Registration on Request
	 	 	5	 
	

	 	(a) Initiating Request
	 	 	5	 
	

	 	(b) Registration of Other Securities
	 	 	7	 
	

	 	(c) Registration Statement Form
	 	 	7	 
	

	 	(d) Effective Registration Statement
	 	 	8	 
	

	 	(e) Selection of Underwriters
	 	 	8	 
	

	 	(f) Priority in Requested Registration
	 	 	9	 
	3.

	 	Piggyback Registration
	 	 	9	 
	4.

	 	Expenses
	 	 	10	 
	5.

	 	Registration Procedures
	 	 	10	 
	6.

	 	Underwritten Offerings
	 	 	15	 
	

	 	(a) Requested Underwritten Offerings
	 	 	15	 
	

	 	(b) Piggyback Underwritten Offerings: Priority
	 	 	15	 
	

	 	(c) Participation in Underwritten Registrations
	 	 	17	 
	

	 	(d) Holdback Agreements
	 	 	17	 
	7.

	 	Preparation; Confidentiality
	 	 	18	 
	8.

	 	Postponements
	 	 	20	 
	9.

	 	Indemnification
	 	 	21	 
	

	 	(a) Indemnification by the Company
	 	 	21	 
	

	 	(b) Indemnification by the Offerors and Sellers
	 	 	22	 
	

	 	(c) Notices of Losses, etc.
	 	 	22	 
	

	 	(d) Contribution
	 	 	23	 
	

	 	(e) Other Indemnification
	 	 	23	 
	

	 	(f) Indemnification Payments
	 	 	23	 
	10.

	 	Permitted Securities
	 	 	23	 
	11.

	 	Adjustments Affecting Registrable Common Stock
	 	 	24	 
	12.

	 	Rule 144 and Rule 144A
	 	 	24	 
	13.

	 	Amendments and Waivers
	 	 	24	 
	14.

	 	Nominees for Beneficial Owners
	 	 	24	 







i









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	15.

	 	Assignment
	 	 	24	 
	16.

	 	Restrictions on Transfer
	 	 	25	 
	17.

	 	Notice of Transfer
	 	 	25	 
	18.

	 	Calculation of Percentage or Number of Shares of Registrable Common Stock
	 	 	26	 
	19.

	 	Termination of Registration Rights
	 	 	26	 
	20.

	 	Miscellaneous
	 	 	26	 
	

	 	(a) Further Assurances
	 	 	27	 
	

	 	(b) Headings
	 	 	27	 
	

	 	(c) Conflicting Instructions
	 	 	27	 
	

	 	(d) Remedies
	 	 	27	 
	

	 	(e) Entire Agreement
	 	 	27	 
	

	 	(f) Notices
	 	 	27	 
	

	 	(g) Governing Law
	 	 	28	 
	

	 	(h) Severability
	 	 	28	 
	

	 	(i) Counterparts
	 	 	28	 







SCHEDULES:




SCHEDULE A – JOINDER AGREEMENT




SCHEDULE B – ELECTION FORM




ii









 








REGISTRATION RIGHTS AGREEMENT




     REGISTRATION RIGHTS AGREEMENT (this “Agreement”) dated as of December 5,
2003 and effective as of the Effective Date (as hereinafter defined), by and
among NRG Energy, Inc., a Delaware corporation (the “Company”), and each Holder
(as hereinafter defined) of Registrable Common Stock (as hereinafter defined)
who is either (i) an Original Record Holder (as hereinafter defined), (ii) an
Original Other Holder (as hereinafter defined) who elects in writing to become
a party to this Agreement or (iii) any other Person (as hereinafter defined)
who becomes a party pursuant to the terms of this Agreement by entering into a
Joinder Agreement (as hereinafter defined).



     In consideration of the premises and the mutual agreements set forth
herein, the parties hereto hereby agree as follows:



1. Definitions. Unless otherwise
defined herein, capitalized terms used herein and in the recitals above shall
have the following meanings:




     “10% Holder” means, as of any date of determination, any Holder which owns
10% or more of the Company’s Common Stock then outstanding.



     “Affiliate” of a Person means any Person that directly, or indirectly
through one or more intermediaries, controls, or is controlled by, or is under
common control with, such other Person. For purposes of this definition,
“control” means the ability of one Person to direct the management and policies
of another Person. For purposes of this Agreement, each of MattlinPatterson
Global Opportunities Partners, L.P. and MattlinPatterson Global Opportunities
Partners (Bermuda), L.P. shall be an Affiliate of the other. In addition, with
respect to each of MattlinPatterson Global Opportunities Partners, L.P. and
MattlinPatterson Global Opportunities Partners (Bermuda), L.P., the term
“Affiliate” shall also include its general partner, investment manager, any
entity with the same general partner or investment manager as MattlinPatterson
Global Opportunities Partners, L.P or MattlinPatterson Global Opportunities
Partners (Bermuda), L.P. (as the case may be), and any Person under the direct
or indirect control of MattlinPatterson Global Partners LLC or
MattlinPatterson Global Advisers LLC and the general partner(s) and investment
manager(s) of any such Person, if any.



     “Bankruptcy Code” means Title 11 of the United States Code.



     “Business Day” means any day except a Saturday, Sunday or other day on
which commercial banks in New York City or Minneapolis are authorized or
required by law to be closed.



     “Commission” means the U.S. Securities and Exchange Commission.



     “Common Stock” means the shares of common stock, $.01 par value per share,
of the Company, as adjusted to reflect any merger, consolidation,
recapitalization, reclassification, split-up, stock dividend, rights offering
or reverse stock split made, declared or effected with respect to the Common
Stock.



     “Company Indemnitee” has the meaning set forth in Section 9(a) hereof.



 









 





     “Confidential Material” means all notices delivered by the Company under
this Agreement, including, without limitation, notices delivered by the Company
pursuant to Section 2 and/or Section 3 (each, an “Offering Notice”) and any and
all other information, in any form or medium, written or oral, concerning or
relating to the Company (whether prepared by the Company, its Representatives
or otherwise, and irrespective of the form or means of communication and which
prior to the delivery of an Offering Notice is labeled or otherwise identified
as confidential) that is furnished to a Holder of Registrable Common Stock or
its Representative (or to a Person who was a Holder who has not notified the
Company that it is no longer a Holder pursuant to Section 17) by or on behalf
of the Company, including without limitation all such oral and written
information relating to financial statements, projections, evaluations, plans,
programs, customers, suppliers, facilities, equipment and other assets,
products, processes, marketing, research and development, trade secrets,
know-how, patent applications that that have not been published, technology and
other confidential information and intellectual property of the Company.
During the period beginning on the date of delivery of an Offering Notice and
ending on the date that the registration referred to therein either becomes
effective or is abandoned, all information provided to the Holders of
Registrable Common Stock, who elect to participate in the offering referred to
therein, in connection with such offering shall be deemed to be Confidential
Material, whether or not labeled or otherwise identified as Confidential
Information. “Confidential Material” shall not include information that: (a)
is or becomes available to the public generally, other than as a result of
disclosure by the relevant Holder or one of the Representatives of such Holder
in breach of the terms of this Agreement, or (b) becomes available to the
relevant Holder from a source other than the Company or one of the
Representatives of such Holder, including without limitation prior to the date
hereof, provided that, the Holder reasonably believes that such source is not
bound by a confidentiality agreement with or does not have a contractual, legal
or fiduciary obligation of confidentiality to the Company or any other Person
with respect to such information.



     “Effective Date” means the effective date of the Plan pursuant to the
terms thereof.



     “Equity Transfer” has the meaning set forth in Section 6(d) hereof.



     “Exchange Act” means the Securities Exchange Act of 1934, as amended, and
the rules and regulations thereunder, or any similar or successor statute.



     “Expenses” means all expenses incident to the Company’s performance of or
compliance with its obligations under this Agreement, including, without
limitation, all registration, filing, listing, stock exchange and NASD fees
(including, without limitation, all fees and expenses of any “qualified
independent underwriter” required by the rules of the NASD), all fees and
expenses of complying with state securities or blue sky laws (including the
reasonable fees, disbursements and other charges of counsel for the
underwriters in connection with blue sky filings), all word processing,
duplicating and printing expenses, messenger, telephone and delivery expenses,
all rating agency fees, the fees, disbursements and other charges of counsel
for the Company and of its independent public accountants, including the
expenses incurred in connection with any special audits or comfort letters
required by or incident to such performance
and compliance, the fees and expenses incurred in connection with the
listing of the securities to be registered on each securities exchange or
national market system on which similar securities



2









 





issued by the Company are
then listed, the reasonable fees and disbursements of one law firm (per
registration statement prepared) representing the Selling Holders (selected by
the Selling Holders holding a majority of the shares of Registrable Common
Stock covered by such registration), the fees and expenses of any special
experts retained by the Company in connection with such registration, and the
fees and expenses of other Persons retained by the Company, but excluding
underwriting discounts and commissions and applicable transfer taxes, if any,
which discounts, commissions and transfer taxes shall be borne by the Selling
Holders in all cases; provided that, in any case where Expenses are not to be
borne by the Company, such Expenses shall not include salaries of Company
personnel or general overhead expenses of the Company, auditing fees, premiums
or other expenses relating to liability insurance required by underwriters or
other expenses for the preparation of financial statements or other data
normally prepared by the Company in the ordinary course of its business or
which the Company would have incurred in any event.




     “Holdback Period” has the meaning set forth in Section 6(d) hereof.



     “Holder” means, as of any date of determination, (a) any Original Record
Holder or Original Other Holder who owns at least 1% of the Company’s Common
Stock on the date of determination, or (b) any Person who (i) acquired at least
1% of the Company’s Common Stock then outstanding from an Original Record
Holder or Original Other Holder, (ii) owns at least 10% of the Company’s Common
Stock then outstanding and (iii) has delivered to the Company a Joinder
Agreement in accordance with Section 15.



     “Holder Indemnitee” has the meaning set forth in Section 9(b) hereof.



     “Initiating Holder” means at the time of any Initiating Request a 10%
Holder.



     “Initiating Holder Group” means Holders (not including any 10% Holder)
which collectively own 10% or more of the Company’s Common Stock outstanding at
the time of delivery of an Initiating Request.



     “Initiating Request” has the meaning set forth in Section 2(a) hereof.



     “Joinder Agreement” has the meaning set forth in Section 15 hereof.



     “Loss” and “Losses” have the meanings set forth in Section 9(a) hereof.



     “Material Adverse Change” means (a) any general suspension of trading in
securities on any national securities exchange or in the over-the-counter
market in the United States of America; (b) the declaration of a banking
moratorium or any suspension of payments in respect of banks in the United
States of America; (c) the commencement of war, armed hostilities, terrorism or
other national or international calamity involving the United States of
America; (d) any other limitation (whether or not voluntary) imposed by any
governmental authority of the United States of America, which materially
affects the extension of credit by U.S. banks or other financial institutions;
(e) any material adverse change in the business, condition (financial or
otherwise) or prospects of the Company and its subsidiaries, taken as a
whole (provided that, if the registration is with respect to an
underwritten offering, in no event shall any such change be deemed to be a
Material Adverse Change if the offering price remains



3









 





within the range
originally advised by the underwriter); or (f) a 20% or more decline in the Dow
Jones Industrial Average, the Standard and Poor’s Index of 500 Industrial
Companies or the Dow Jones Utilities Index, in each case from the date of an
Initiating Request.




     “NASD” means the National Association of Securities Dealers, Inc.



     “Non-withdrawing Holders” has the meaning set forth in Section 2(a)(ii)(D)
hereof.



     “Offering Documents” has the meaning set forth in Section 9(a) hereof.



     “Original Other Holder” means any Person (other than Cede & Co. and the
escrow agent for the Disputed Claims Reserve (as defined in the Plan)) who (a)
shall own beneficially and/or of record, in each case together with such
Person’s Affiliates, at least 1,000,000 shares of the Common Stock as of the
Effective Date (immediately after giving effect to the initial issuance of
shares of Common Stock pursuant to the Plan and assuming for this purpose that
such shares were initially issued on the Effective Date), (b) delivers written
notice to the Company in the form of Schedule B attached hereto, signed by such
Person and each of its Affiliates (if any), and elects in such notice to become
a party to this Agreement and (c) continues to own at least 1,000,000 shares of
Common Stock as of the date of such notice.



     “Original Record Holder” means any Person (other than Cede & Co. and the
escrow agent for the Disputed Claims Reserve (as defined in the Plan)) who
shall own of record (excluding any ownership by such Person’s Affiliates) at
least 1,000,000 shares of Common Stock as of the Effective Date (immediately
after giving effect to the initial issuance of shares of Common Stock pursuant
to the Plan and assuming for this purpose that such shares were initially
issued on the Effective Date).



     “Permitted Securities” has the meaning set forth in Section 2(b) hereof.



     “Person” means any individual, corporation, partnership, limited liability
company, firm, joint venture, association, joint stock company, trust,
unincorporated organization, governmental or regulatory body or subdivision
thereof or other entity.



     “Piggyback Registration” has the meaning set forth in Section 3 hereof.



     “Piggyback Requesting Holder” has the meaning set forth in Section 3
hereof.



     “Plan” means the Plan of Reorganization under Chapter 11 of the Bankruptcy
Code for the Company and certain of its domestic subsidiaries, as the same may
be amended, modified or supplemented from time to time in accordance with the
terms thereof.



     “Public Offering” means a public offering and sale of Common Stock
pursuant to an effective registration statement (other than a registration
statement on Form S-4 or Form S-8 or any successor or similar forms) under the
Securities Act.



     “Registrable Common Stock” means any of the Common Stock owned by the
Holders from time to time; provided, however, that a share of Common Stock will
cease to be




4










 





Registrable Common Stock when (a) a registration statement covering
such Registrable Common Stock has been declared effective and such Registrable
Common Stock has been sold pursuant to such effective registration statement,
or (b) such Registrable Common Stock has been Transferred to a Person who is
not (and does not become as a result of such Transfer) a Holder.




     “Representative” has the meaning set forth in Section 7(b) hereof.



     “Securities Act” means the Securities Act of 1933, as amended, and the
rules and regulations thereunder, or any similar or successor statute.



     “Selling Holder” means a Holder who is selling Registrable Common Stock
requested to be registered pursuant to Section 2(a) or Section 3 hereof.



     “Transfer” means any transfer, sale, assignment, pledge, hypothecation or
other disposition of any interest. “Transferor” and “Transferee” have
correlative meanings.



     “Withdrawal Notice” has the meaning set forth in Section 19 hereof.



     In this Agreement, all references to “ownership” of Common Stock or
Registrable Common Stock shall be deemed to mean the beneficial ownership of
Common Stock or Registrable Common Stock, unless otherwise specified.




	2.	 	Securities Act Registration on Request.





     (a) Initiating Request. At any
time and from time to time after the first anniversary following the Effective
Date and if the Company’s obligations hereunder have not terminated pursuant to
and in accordance with the terms of Section 19 hereof, any Initiating Holder or
Initiating Holder Group may make a written request (the “Initiating Request”)
for the registration with the Commission under the Securities Act of all or
part of the Registrable Common Stock owned by such Initiating Holder or
Initiating Holder Group; provided, however, such request shall specify the
number of shares to be disposed of by such Initiating Holder or Initiating
Holder Group and the proposed plan of distribution therefor. Upon the receipt
of any Initiating Request for registration pursuant to this Section 2(a), the
Company shall promptly (and in any event within 10 Business Days after receipt
of the Initiating Request) notify in writing all other Holders of the receipt
of such request and will use its reasonable best efforts to effect, at the
earliest practicable date, such registration under the Securities Act of:




	 	(i)	 	the Registrable Common Stock which the Company
has been so requested to register by such Initiating Holder or
Initiating Holder Group, and
	 
	 	(ii)	 	all other Registrable Common Stock which the
Company has been requested to register by any other Holders by
written request (provided that, if such Holder shall specify
in such request that it does not wish to receive any
Confidential Material, except as set forth in such request,
then the Company shall not deliver to such Holder any such
Confidential Material) given to the Company within 30 days
after the giving of written notice by the Company to such
other Holders of the Initiating Request,




5









 











all to the extent necessary to permit the disposition (in accordance with
Section 2(c) hereof) of the Registrable Common Stock so to be registered;
provided that,





	 	(A)	 	(i) any Initiating Holder shall be
permitted to make an Initiating Request on up to two
occasions and (ii) any Initiating Holder Group shall be
permitted to make an Initiating Request on one occasion
only; provided, however, that if at any time there
ceases to be a 10% Holder and at least one of the two
written requests provided for in clause (i) of this
paragraph (A) has not been used, any Initiating Holder
Group shall have the right to make an additional
Initiating Request and the number of Initiating Requests
referenced in clause (i) of this paragraph (A) shall be
permanently reduced to one; provided further that, the
Company shall not be required to effect more than a
total of three registrations pursuant to this Section
2(a) for all Holders;
	 
	 	(B)	 	the Company shall not be required to
effect such registration pursuant to this Section 2(a)
unless the disposition of the Registrable Common Stock
shall be conducted through an underwritten offering on a
“firm commitment” basis, unless the Initiating Request
is made by (i) an Initiating Holder who is a 10% Holder,
or (ii) an Initiating Holder Group, a member of which
was but is no longer a 10% Holder but is an “affiliate”
of the Company for purposes of Rule 144 under the
Securities Act;
	 
	 	(C)	 	if the Company shall have previously
effected a registration pursuant to this Section 2(a) or
shall have previously effected a registration of which
notice has been given to the Holders pursuant to Section
3 hereof, the Company shall not be required to effect
any registration pursuant to this Section 2(a) until a
period of 180 days shall have elapsed from the date on
which the previous such registration ceased to be
effective;
	 
	 	(D)	 	any Initiating Holder or Initiating
Holder Group (at the request of those members of such
Initiating Holder Group owning a majority of the shares
of Registrable Common Stock owned by all members of such
Initiating Holder Group) whose Registrable Common Stock
was to be included in any registration pursuant to this
Section 2(a), by written notice to the Company, may
withdraw its Initiating Request. Upon receipt of such withdrawal
notice (except as otherwise provided in sub-clause
(x)), the Company shall not effect such registration
and such registration shall not count as one of the
permitted registrations pursuant to paragraph (A)
above; provided that (x) if the members of an
Initiating Holder Group that have not requested
withdrawal of an Initiating Request collectively own
and wish the Company to register the offering of 10% or
more of the Company’s Common Stock outstanding at the
time of




6









 












	 	 	 	delivery of the Initiating Request (the
“Non-withdrawing Holders”), the Company shall effect a
registration that includes only such shares of Common
Stock owned by the Non-withdrawing Holders and such
registration shall count as one of the registrations
permitted for an Initiating Holder Group pursuant to
paragraph (A) above; (y) any Initiating Holder may
withdraw its Initiating Request not more than twice and
any Initiating Holder Group may withdraw its Initiating
Request not more than twice (provided further for the
avoidance of doubt that the aggregate number of
withdrawals under this clause (y) by all Initiating
Holder Groups however constituted shall not exceed
two), in either case unless such Initiating Request is
withdrawn for a reason specified in sub-clause (z)(i);
and (z) the Initiating Holder or Initiating Holder
Group shall either (i) elect to pay or reimburse the
Company for all Expenses incurred in connection with
the second registration that is not effected as the
result of an Initiating Request that is withdrawn by
such Initiating Holder or Initiating Holder Group, as
the case may be, pursuant to this paragraph (D), unless
such Initiating Request is withdrawn either (I) at the
request of the Company, (II) because a breach by the
Company of its obligations under this Agreement has
materially and adversely affected the offering, or
(III) within 5 Business Days following the occurrence
of a Material Adverse Change, in which case the Company
shall pay all Expenses incurred in connection with such
registration, or (ii) have the withdrawn Initiating
Request count as one of the permitted registrations
pursuant to paragraph (A) above; and
	 
	 	(E)	 	the Company shall not be required to
effect any registration to be effected pursuant to this
Section 2(a) unless at least 10% of the shares of
Registrable Common Stock outstanding at the time of such
request is to be included in such registration.





     (b) Registration of Other Securities. Whenever the Company shall effect a registration pursuant to Section
2(a) hereof, no securities other than (i) Registrable Common Stock, (ii)
subject to Section 2(f), Common Stock to be sold by the Company for its own
account, and (iii) Common Stock or other capital stock issued in connection
with equity investments in the Company or its subsidiaries or acquisitions (such Common Stock or other capital stock, which shall not
include Common Stock outstanding on the Effective Date, is referred to as
“Permitted Securities”) for which the Company’s board of directors has approved
of the granting of such registration rights shall be included among the
securities covered by such registration, unless otherwise approved by the
Holders owning a majority of the shares of Registrable Common Stock covered by
such registration, which approval shall not be unreasonably withheld.



     (c) Registration Statement Form.
Registrations under Section 2(a) hereof shall be on such appropriate
registration form prescribed by the Commission under the Securities Act as



7









 





shall be selected by the Company and which form shall be available for the sale
of the Registrable Common Stock to be registered thereunder in accordance with
the intended method of distribution thereof. The Company agrees to include in
any such registration statement filed pursuant to Section 2(a) hereof all
information which counsel for the Selling Holders holding a majority of the
shares of Registrable Common Stock covered by such registration effected
pursuant hereto shall advise is legally required to be included. The Company
may, if permitted by law, effect any registration requested under this Section
2 by the filing of a registration statement on Form S-3 (or any successor or
similar short form registration statement); provided, however, that in the case
of an underwritten offering, if the managing underwriters advise the Company
that in their opinion the use of another permitted form is of material
importance to the success of the offering, then the Company shall effect such
registration on such other permitted form.




     (d) Effective Registration Statement. Except as set forth in Section 2(a)(ii)(D), a registration requested
pursuant to Section 2(a) hereof shall not be deemed to have been effected:




	 	(i)	 	unless a registration statement with respect
thereto has been declared effective by the Commission and
remains effective in compliance with the provisions of the
Securities Act and the laws of any state or other jurisdiction
applicable to the disposition of Registrable Common Stock
covered by such registration statement until the earlier of
(x) such time as all of such Registrable Common Stock has been
disposed of in accordance with such registration statement,
(y) there shall cease to be any Registrable Common Stock or
(z) 120 days after such registration statement is declared
effective;
	 
	 	(ii)	 	if, after it has become effective, such
registration is interfered with by any stop order, injunction
or other order or requirement of the Commission or other
governmental or regulatory agency or court for any reason
other than a violation of applicable law solely by any Selling
Holder and has not thereafter become effective; or
	 
	 	(iii)	 	if, in the case of an underwritten offering, the
conditions to closing specified in an underwriting agreement
to which the Company is a party
are not satisfied or waived other than solely by reason of
any breach or failure by any Selling Holder, or are not
otherwise waived.





      The Holders to be included in a registration statement may at any time
terminate a request for registration made pursuant to Section 2(a) in
accordance with Section 2(a)(ii)(D).



     (e) Selection of Underwriters.
The underwriter or underwriters of each underwritten offering of the
Registrable Common Stock to be registered pursuant to Section 2(a) hereof shall
be selected by the Company (provided that, the managing underwriter must be a
“bulge bracket” investment banking firm), subject to (i) if a 10% Holder or
former 10% Holder is not the Initiating Holder or a member of the Initiating
Holder Group, the approval of the Selling Holders owning a majority of the
shares of Registrable Common Stock to be registered which approval shall not be
unreasonably withheld or delayed, or (ii) if a 10% Holder or former 10% Holder
is



8









 





the Initiating Holder or a member of the Initiating Holder Group, the
approval of such 10% Holder or such former 10% Holder which approval may be
withheld in its sole discretion; provided, however, that in any event the
Company shall be satisfied that the terms of such underwriting engagement are
commercially reasonable market terms.



     (f) Priority in Requested Registration. If the managing underwriter of an underwritten offering pursuant to
Section 2(a) shall advise the Company (in which case, the Company shall use
reasonable efforts to advise the Selling Holders) that, in its judgment, the
number and type of securities proposed to be included in such registration
would exceed the number and type of securities which could be sold in such
offering within a price range acceptable to the Company and the Selling Holders
owning at least a majority of the shares of Registrable Common Stock covered by
such registration, then the Company shall include in such registration pursuant
to Section 2(a), to the extent of the number and type of securities which the
Company is so advised can be sold in such offering, (i) first, Registrable
Common Stock requested to be registered by the Selling Holders pursuant to
Section 2(a) hereof, pro rata among the Selling Holders on the basis of the
number of shares of Registrable Common Stock requested to be registered by all
such Selling Holders, (ii) second, Permitted Securities requested to be
registered by the holders of Permitted Securities, pro rata among the holders
of Permitted Securities on the basis of the number of Permitted Securities
requested to be registered by all such holders of Permitted Securities and
(iii) third, securities that the Company proposes to issue and sell for its own
account.



3. Piggyback Registration. If
the Company proposes to file a registration statement under the Securities Act
with respect to an equity offering by the Company (or any offering by the
Company of securities convertible into or exchangeable for equity securities)
for its own account or for the account of any of its respective securityholders
of any class of equity security or security convertible into or exchangeable
for equity securities (other than a registration statement on Form S-4 or S-8
(or any substitute form that may be adopted by the Commission) or a
registration statement to be filed in connection with an exchange offer or
offering of securities solely to the Company’s existing securityholders), then the Company shall give written notice (which notice
shall include a range of expected public offering prices; provided, however, if
the underwriter has not advised the Company of such a range as of the date of
such notice, then the Company shall notify the Holders in writing as promptly
as practicable after it receives such advice from such underwriter) of such
proposed filing to the Holders as soon as reasonably practicable (and in any
event at least 30 days prior to such proposed registration), and such notice
shall offer such Holders the opportunity to register such number of shares of
Registrable Common Stock as each such Holder may request in writing in
accordance with the provisions of this Section 3 (a “Piggyback Registration”).
Upon written request, any Holder receiving notice of such proposed registration
(a “Piggyback Requesting Holder”) made within 30 days after the receipt of any
such notice (10 days if the Company states in such written notice or gives
telephonic notice to the relevant Holder, with written confirmation to follow
promptly thereafter, stating that (a) such registration will be on Form S-3 (or
any successor form) and (b) such shorter period of time is required because of
a planned filing date), which request shall specify the number of shares of
Registrable Common Stock intended to be disposed of by such Piggyback
Requesting Holder (provided that, if such Holder shall specify in such request
that it does not wish to receive any Confidential Material, except as set forth
in such request, then the Company shall not deliver to such Holder any such
Confidential Material), the Company shall, subject to




9









 








Section 6(b) hereof, be
obligated to permit the Registrable Common Stock requested to be included in a
Piggyback Registration to be included on the same terms and conditions as any
similar securities of the Company included therein, unless (i) the managing
underwriter of an underwritten offering pursuant to this Section 3 has
determined that the inclusion of such Registrable Common Stock would have a
material adverse effect on the offering, and (ii) the Holders of a majority of
the shares of Registrable Common Stock approve of such exclusion; provided
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 shall determine for any
reason not to register or to delay registration of such securities, the Company
shall give written notice of such determination to each Piggyback Requesting
Holder and (i) in the case of a determination not to register, shall be
relieved of its obligation to register any Registrable Common Stock in
connection with such registration (but not from any obligation of the Company
to pay the Expenses in connection therewith), without prejudice, however, to
the rights of any Holder to include Registrable Common Stock in any future
registration (or registrations) pursuant to this Section 3 or to cause such
registration to be effected as a registration under Section 2(a) hereof, as the
case may be, and (ii) in the case of a determination to delay registering,
shall be permitted to delay in each case registering any Registrable Common
Stock, for the same period as the delay in registering such other securities.
Notwithstanding the foregoing, prior to the date on which the securities to be
sold in such offering are priced, if the managing underwriter (if an
underwritten offering) notifies the Company of a change in the price range at
which it believes the securities will be sold from the price range the Company
previously provided to such Piggyback Requesting Holders, the Company shall so
advise the Piggyback Requesting Holders, and each Piggyback Requesting Holder
shall then have the right irrevocably to withdraw its request to have its
Registrable Common Stock included in such registration by delivery of written
notice of such withdrawal to the Company within five Business Days after having
received such notice from the Company, without prejudice, however, to the
rights of any Holder to include Registrable Common Stock in any future
registration (or registrations) pursuant to this Section 3 or to cause such registration to be effected as a registration
under Section 2(a) hereof, as the case may be.




     No registration effected under this Section 3 shall relieve the Company of
its obligation to effect any registration upon request under Section 2(a)
hereof and no registration effected pursuant to this Section 3 shall be deemed
to have been effected pursuant to Section 2(a) hereof.



4. Expenses. Except as otherwise
provided in clause (z) of Section 2(a)(ii)(D) and the final paragraph of
Section 5, the Company shall pay all Expenses in connection with any
registration initiated pursuant to Sections 2(a) or 3 hereof, whether or not
such registration shall become effective and whether or not all or any portion
of the shares of Registrable Common Stock originally requested to be included
in such registration are ultimately included in such registration.




5. Registration Procedures. If
and whenever the Company is required or elects to effect any registration under
the Securities Act as provided in Sections 2(a) and 3 hereof, the Company
shall, as expeditiously as possible:




10









 









	 	(a)	 	prepare and file with the Commission (promptly and, in the
case of any registration pursuant to Section 2(a), in any event on
or before the date that is (i) 90 days after the end of the period
within which requests may be given to the Company pursuant to
Section 2(a)(ii), or (ii) if, as of such 90th day, the Company does
not have the audited financial statements required to be included in
the registration statement, 30 days after the receipt by the Company
from its independent public accountants of such audited financial
statements, which the Company shall use its reasonable best efforts
to obtain as promptly as practicable) the requisite registration
statement to effect such registration and thereafter use its
reasonable best efforts to cause such registration statement to
become and remain effective; provided, however, that the Company may
discontinue any registration of its securities that are not shares
of Registrable Common Stock (and, under the circumstances specified
in Sections 3 and 8(b) hereof, its securities that are shares of
Registrable Common Stock) at any time prior to the effective date of
the registration statement relating thereto;
	 
	 	(b)	 	prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used
in connection therewith as may be necessary to keep such
registration statement effective and to comply with the provisions
of the Securities Act and the Exchange Act with respect to the
disposition of all Registrable Common Stock covered by such
registration statement until such time as all of such Registrable
Common Stock has been disposed of in accordance with the method of
disposition set forth in such registration statement (subject to
Section 5(a)); provided that, such period need not extend beyond 120
days after the effective date of the registration statement;
	 
	 	(c)	 	furnish to each Selling Holder and each underwriter such
number of copies of such drafts and final conformed versions of such
registration statement and of each such amendment and supplement
thereto (in each case including all exhibits and any documents
incorporated by reference), such number of copies of such drafts and
final versions of the prospectus contained in such registration
statement (including each preliminary prospectus and any summary
prospectus), if any, and any other prospectus filed under Rule 424
under the Securities Act, in conformity with the requirements of the
Securities Act, and such other documents, as the Selling Holders and
underwriters may reasonably request in writing;
	 
	 	(d)	 	use its reasonable best efforts (i) to register or qualify
all Registrable Common Stock and other securities, if any, covered
by such registration statement under such other securities or blue
sky laws of such states or other jurisdictions of the United States
of America as the Selling Holders shall reasonably request in
writing, (ii) to keep such registration or qualification in effect
for so long as such registration statement remains in effect and
(iii) to take any other action that may be necessary or reasonably
advisable to enable such Selling Holders to consummate the
disposition in such jurisdictions of the securities to be sold by
such Selling Holders, except that the Company shall not for any such
purpose be required to qualify generally to do business as a foreign
corporation in any jurisdiction wherein it would not but for the
requirements of this Section 5(d) be




11









 







	 	 	 	obligated to be so qualified,
to subject itself to taxation in such jurisdiction or to consent to
general service of process in any such jurisdiction;
	 
	 	(e)	 	use its reasonable best efforts to cause all Registrable
Common Stock and other securities, if any, covered by such
registration statement to be registered with or approved by such
other federal or state governmental agencies or authorities as may
be necessary in the opinion of counsel to the Company and counsel to
the Selling Holder or Selling Holders to enable the Selling Holder
or Selling Holders thereof to consummate the disposition of such
Registrable Common Stock;
	 
	 	(f)	 	use its reasonable best efforts to obtain and, if obtained,
furnish to each Selling Holder, and each underwriter a signed copy,
addressed to each such underwriter, of:
	 
	 	 	 	     (i) an opinion or opinions of counsel to the Company dated the
effective date of such registration statement (and, if such
registration involves an underwritten offering, dated the date of
the closing under the underwriting agreement), and
	 
	 	 	 	     (ii) a comfort letter or comfort letters, dated the effective
date of such registration statement (and, if such registration
involves an underwritten offering, dated the date of the closing
under the underwriting agreement), from the independent public
accountants who have certified the Company’s financial statements
included or incorporated by reference in such registration
statement,
	 
	 	 	 	     each in customary form, covering such matters of the type
customarily covered by opinions of counsel or comfort letters, as
the case may be, and reasonably satisfactory to the managing
underwriter;






	 	(g)	 	notify each Selling Holder and the managing underwriter or
underwriters, if any, promptly, and confirm such advice promptly in
writing thereafter (i) when the registration statement, the
prospectus or any prospectus supplement related thereto or
post-effective amendment to the registration statement has been
filed and, with respect to the registration statement and any
post-effective amendment, when the same has become effective; (ii)
of any request by the Commission for amendments or supplements to
the registration statement or prospectus or for additional
information; (iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the registration statement or
the initiation of any proceedings by any Person for that purpose;
(iv) if at any time the representations and warranties of the
Company made as contemplated by Section 6(a) ceases to be true and
correct; and (v) of the receipt by the Company of any notification
with respect to the suspension of the qualification of any
Registrable Common Stock for sale under the securities or blue sky
laws of any jurisdiction or the initiation or threat of any
proceeding for such purpose;
	 
	 	(h)	 	promptly notify each Selling Holder and the managing
underwriter or underwriters, if any, at any time when a prospectus
relating thereto is required to






12










 






	 	 	 	be delivered under the Securities Act, upon discovery that, or upon the
happening of any event as a result of which, the prospectus included in
such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances under which they were made
and, at the written request of any such Selling Holder or underwriter, if
any, promptly prepare and furnish to it a reasonable number of copies of
a supplement to or an amendment of such prospectus as may be necessary so
that, as thereafter delivered to the purchasers of such securities, such
prospectus, as supplemented or amended, shall not include an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances under which they were made;
provided that, in the event the Company shall give such notice, the
Company shall extend the period for which such registration shall remain
effective by the number of days during the period of days from and
including the date of the giving of such notice to the date when the
Company shall make available to the Holders such supplemented and amended
prospectus;
	 
	 	(i)	 	use its reasonable best efforts to obtain the withdrawal of
any order suspending the effectiveness of a registration statement
relating to the Registrable Common Stock at the earliest possible
moment;
	 
	 	(j)	 	otherwise comply with all applicable rules and regulations of
the Commission and any other governmental agency or authority having
jurisdiction over the offering, and make available to its security
holders, as soon as reasonably practicable, an earnings statement
covering the period of at least twelve months, which earnings
statement shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 promulgated thereunder, furnish to each
Selling Holder and to the managing underwriter at least 10 days
prior to the filing thereof a copy of any amendment or supplement to
such registration statement or prospectus, and not file any
amendment or supplement thereof which does not comply in all
material respects with the requirements of the Securities Act or the
rules and regulations thereunder;
	 
	 	(k)	 	use its reasonable best efforts to cause all such Registrable
Common Stock covered by a registration statement to be listed or
quoted on each securities exchange or inter-dealer automated
quotation system on which similar securities issued by the Company
are then listed or quoted;
	 
	 	(l)	 	provide and maintain a transfer agent and registrar for the
Registrable Common Stock covered by a registration statement from
and after a date no later than the effective date thereof;
	 
	 	(m)	 	
enter into such agreements (including, in the case of an
underwritten offering, an underwriting agreement in customary form)
and take such other actions as the Selling Holders holding a
majority of the shares of Registrable Common Stock




13









 













	 	 	 	covered by such
registration statement shall reasonably request in order to
expedite or facilitate the disposition of such Registrable Common
Stock, including customary indemnification;
	 
	 	(n)	 	if requested by the managing underwriter or the Selling
Holders holding a majority of the shares of Registrable Common Stock
being sold, promptly incorporate in a prospectus supplement or
post-effective amendment such information as the managing
underwriter or the Selling Holders of a majority of the Registrable
Common Stock being sold, as the case may be, agree should be
included therein relating to the plan of distribution with respect
to such Registrable Common Stock, including without limitation,
information with respect to the number of shares of Registrable
Common Stock being sold to such underwriters, the purchase price
being paid therefor by such underwriters and with respect to any
other terms of the underwritten offering of the Registrable Common
Stock to be sold in such offering; and make all required filings of
such prospectus supplement or post-effective amendment as soon as
notified of the matters to be incorporated in such prospectus
supplement or post-effective amendment;
	 
	 	(o)	 	if requested by the Selling Holders holding a majority of the shares of Registrable Common Stock being sold, cooperate with the
such Selling Holders and the managing underwriter, if any, to
facilitate the timely preparation and delivery of certificates
representing Registrable Common Stock to be sold and not bearing any
restrictive legends, and enable such Registrable Common Stock to be
in such share amounts and registered in such names as the managing
underwriter or, if none, the Selling Holders holding a majority of
the shares of Registrable Common Stock being sold, may request at
least three Business Days prior to any sale of Registrable Common
Stock to the underwriters; and
	 
	 	(p)	 	cause representatives of the Company to participate in any
“road show” or “road shows” reasonably requested by any lead
underwriter of an underwritten offering of Registrable Common Stock.





        As a
condition to the obligations of the Company to complete any
registration pursuant to this Agreement with respect to the Registrable Common
Stock of a Selling Holder, such Selling Holder must furnish to the Company in
writing such information regarding itself and the Registrable Common Stock held
by it as is necessary to effect the registration of such Selling Holder’s
Registrable Common Stock and is requested in writing by the Company. At least
30 days prior to the first anticipated filing date of a registration statement
for any registration under this Agreement, the Company will notify in writing
each Holder of the information referred to in the preceding sentence which the
Company is requesting from that Holder whether or not such Holder has elected
to have any of its Registrable Common Stock included in the registration
statement. If, within 10 days prior to the anticipated filing date, the
Company has not received the requested information from a Holder, then the
Company may file the registration statement without including Registrable
Common Stock of that Holder.



14









 





        Each
Selling Holder agrees that as of the date that a final prospectus is
made available to it for distribution to prospective purchasers of its
Registrable Common Stock it shall cease to distribute copies of any preliminary prospectus prepared in
connection with the offer and sale of such Registrable Common Stock. Each
Selling Holder further agrees that, upon receipt of any notice from the Company
of the happening of any event of the kind described in Section 5(h), such
Selling Holder shall forthwith discontinue such Selling Holder’s disposition of
Registrable Common Stock pursuant to the registration statement relating to
such Registrable Common Stock until such Selling Holder’s receipt of the copies
of the supplemented or amended prospectus contemplated by Section 5(h) and, if
so directed by the Company, shall deliver to the Company (at the Company’s
expense) all copies, other than permanent file copies, then in such Selling
Holder’s possession of the prospectus relating to such Registrable Common Stock
current at the time of receipt of such notice. If any event of the kind
described in Section 5(h) occurs and such event is the fault solely of a
Selling Holder (or Selling Holders), such Selling Holder (or such Selling
Holders) shall pay all Expenses attributable to the preparation, filing and
delivery of any supplemented or amended prospectus contemplated by Section
5(h).




	6.	 	Underwritten Offerings.





     (a) Requested Underwritten Offerings. If requested by the underwriters in connection with a request for a
registration under Section 2(a) hereof, the Company shall enter into a firm
commitment underwriting agreement with such underwriters for such offering,
such agreement to be reasonably satisfactory in substance and form to the
Company and the Selling Holders holding a majority of the shares of Registrable
Common Stock included in such registration, and the underwriters and to contain
such representations and warranties by the Company and such other terms as are
customary in agreements of that type, including, without limitation,
indemnification and contribution to the effect and to the extent provided in
Section 9 hereof.



     (b) Piggyback
Underwritten Offerings: Priority.




	 	(i)	 	If the Company proposes to register any of its
securities under the Securities Act for its own account as
contemplated by Section 3 hereof and such securities are to be
distributed by or through one or more underwriters, and if the
managing underwriter of such underwritten offering shall
advise the Company (in which case, the Company shall use
reasonable efforts to advise the Selling Holders in writing)
that if all the shares of Common Stock requested to be
included in such registration were so included, then in its
judgment, the number and type of securities proposed to be
included in such registration would exceed the number and type
of securities which could be sold in such offering within a
price range acceptable to the Company, then the Company shall
include in such registration pursuant to Section 3, to the
extent of the number and type of securities which the Company
is so advised can be sold in such offering, (A) first,
securities that the Company proposes to issue and sell for its
own account, (B) second, Permitted Securities requested to be
registered by the holders of Permitted Securities and
Registrable Common Stock requested to be registered by
Piggyback Requesting Holders pursuant to Section 3






15









 





	 	 	 	hereof,
pro rata among the holders of Permitted Securities and
Piggyback Requesting Holders on the basis of the number of
shares of Permitted Securities and Registrable Common Stock
requested to be registered by all such holders of Permitted
Securities and Piggyback Requesting Holders, and (C) third,
other securities (other than Registrable Common Stock or
Permitted Securities), if any.
	 
	 	(ii)	 	If the Company proposes to register any Permitted
Securities pursuant to a demand registration right of the
holders of Permitted Securities as contemplated by Section 3
involving an underwritten offering, and if the managing
underwriter of such underwritten offering shall advise the
Company (in which case, the Company shall use reasonable
efforts to advise the Selling Holders in writing) that if all
the shares of Common Stock requested to be included in such
registration were so included, then in its judgment, the
number and type of securities proposed to be included in such
registration would exceed the number and type of securities
which could be sold in such offering within a price range
acceptable to the Company, then the Company shall include in
such registration pursuant to Section 3, to the extent of the
number and type of securities which the Company is so advised
can be sold in such offering, (A) first, Permitted Securities
requested to be registered by the holders of Permitted
Securities pursuant to Section 3 hereof, pro rata among the
holders of Permitted Securities on the basis of the number of shares of Permitted Securities requested to be registered by
all such holders of Permitted Securities, (B) second,
Registrable Common Stock requested to be registered by
Piggyback Requesting Holders pursuant to Section 3 hereof, pro
rata among the Piggyback Requesting Holders on the basis of
the number of shares of Registrable Common Stock requested to
be registered by all such Piggyback Requesting Holders, (C)
third, securities that the Company proposes to issue and sell
for its own account (unless the Holders of a majority of the shares of Registrable Common Stock consent to the inclusion of
the Company’s securities on a pro rata basis with the
Registrable Common Stock requested to be registered by
Piggyback Requesting Holders pursuant to Section 3 hereof),
and (D) fourth, other securities (other than Registrable
Common Stock or Permitted Securities), if any.
	 
	 	(iii)	 	If the Company proposes to register any
securities other than securities described in (i) and (ii)
above, as contemplated by Section 3 involving an underwritten
offering, if the managing underwriter of such underwritten
offering shall advise the Company (in which case, the Company
shall use reasonable efforts to advise the Selling Holders in
writing) that if all the shares of Common Stock requested to
be included in such registration were so included, then in its
judgment, the number and type of securities
proposed to be included in such registration would exceed the
number and type of securities which could be sold in such
offering within a price range acceptable to the Company, then
the Company shall include in such




16









 






	 	 	 	registration pursuant to
Section 3, to the extent of the number and type of securities
which the Company is so advised can be sold in such offering,
(A) first, Permitted Securities requested to be registered by
the holders of Permitted Securities and Registrable Common
Stock requested to be registered by Piggyback Requesting
Holders pursuant to Section 3 hereof, pro rata among the
holders of Permitted Securities and Piggyback Requesting
Holders on the basis of the number of shares of Permitted
Securities and Registrable Common Stock requested to be
registered by all such holders of Permitted Securities and
Piggyback Requesting Holders, (B) second, securities that the
Company proposes to issue and sell for its own account
(unless the Holders of a majority of the shares of
Registrable Common Stock consent to the inclusion of the
Company’s securities on a pro rata basis with the Registrable
Common Stock requested to be registered by Piggyback
Requesting Holders pursuant to Section 3 hereof), and (C)
third, other securities (other than Registrable Common Stock
and Permitted Securities), if any.





     (c) Participation in Underwritten Registrations. The Holders of Registrable Common Stock to be distributed by
underwriters in an underwritten offering contemplated by subsections (a) or (b)
of this Section 6 shall be parties to the underwriting agreement between the
Company and such underwriters. No Holder may participate in any underwritten
registration hereunder unless such Holder (i) agrees to sell such Holder’s
Registrable Common Stock on the basis provided in any such underwriting
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting agreements. The Selling Holders
may, at their option, require that any or all of the representations and
warranties by, and the other agreements on the part of, the Company to and for
the benefit of the underwriters shall also be made to and for the benefit of
such Selling Holders. No Selling Holder shall be required to make any
representation or warranty to or agreement with the Company or the underwriters
other than representations and warranties contained in a writing furnished by
such Selling Holder expressly for use in such registration statement or
agreements regarding such Selling Holder, the Selling Holder’s Registrable
Common Stock and the Selling Holder’s intended method of distribution and any
other representations required by law.




	 	(d)	 	Holdback Agreements.






	 	(i)	 	Each Holder agrees, unless otherwise agreed to by
the managing underwriter for any underwritten offering
pursuant to this Agreement, not to, directly or indirectly,
sell, transfer, make any short sale of, loan or effect any
distribution or other disposition of any interest in any
equity securities of the Company or securities convertible into or
exchangeable or exercisable for equity securities of the
Company, including any sale under Rule 144 under the
Securities Act (each, an “Equity Transfer”), during the
period (the “Holdback Period”) commencing 10 days prior to
the date on which an underwritten registration pursuant to
Sections 2 or 3 hereof has become effective and until (A) 180
days after the effective date of the Company’s first
underwritten registered Public Offering following the




17









 












	 	 	 	Effective Date (or such shorter period as the managing
underwriter of such Public Offering may permit in writing),
or (B) 90 days after the effective date of any subsequent
underwritten registration, except as part of such initial
underwritten registered Public Offering or any subsequent
underwritten registration or to the extent that such Holder
is prohibited by applicable law from agreeing to withhold
securities from sale or is acting in its capacity as a
fiduciary or an investment adviser. Without limiting the
scope of the term “fiduciary,” a holder shall be deemed to be
acting as a fiduciary or an investment adviser if its actions
or the securities proposed to be sold are subject to the
Employee Retirement Income Security Act of 1974, as amended,
the Investment Company Act of 1940, as amended, or the
Investment Advisers Act of 1940, as amended, or if such
securities are held in a separate account under applicable
insurance law or regulation.
	 
	 	(ii)	 	The Company agrees (A) not to sell, make any
short sale of, loan, grant any option for the purchase of
(other than employee stock options), or effect any Public
Offering or distribution of any equity securities of the
Company, or securities convertible into or exchangeable or
exercisable for equity securities of the Company, during the
10 days prior to the date on which any underwritten
registration pursuant to Sections 2 or 3 hereof has become
effective and until 90 days after the effective date of such
underwritten registration, except as part of such underwritten
registration, and (B) to cause each holder of any equity
securities, or securities convertible into or exchangeable or
exercisable for equity securities, in each case, acquired from
the Company at any time on or after the Effective Date (other
than in a Public Offering), to agree not to sell, make any
short sale of, loan, grant any option for the purchase of, or
effect any Public Offering or distribution of such securities,
during such period, unless the managing underwriter for any
underwritten offering pursuant to this Agreement otherwise
agrees.






	7.	 	Preparation; Confidentiality.






	 	(a)	 	Preparation. In connection with the preparation and filing
of each registration statement under the Securities Act pursuant to
this Agreement, the Company shall (i) give representatives
(designated to the Company in writing) of each Holder or group of
Holders holding at least 20% of the shares of Registrable Common
Stock to be registered under such registration statement, the
underwriters, if any, and one firm of counsel retained on behalf of all underwriters and one
firm of counsel retained on behalf of Holders holding a majority of
the shares of Registrable Common Stock covered by such registration
statement, the reasonable opportunity to participate in the
preparation of such registration statement, each prospectus
included therein or filed with the Commission, and each amendment
thereof or supplement thereto, (ii) upon reasonable advance notice
to the Company, give each of them such reasonable access to all
financial and other records, corporate documents and properties of
the Company and its subsidiaries, as shall be necessary, in the
reasonable opinion of such Holders’ and such




18









 












	 	 	 	underwriters’ counsel,
to conduct a reasonable due diligence investigation for purposes of
the Securities Act, and (iii) upon reasonable advance notice to the
Company, provide such reasonable opportunities to discuss the
business of the Company with its officers, directors, employees and
the independent public accountants who have certified its financial
statements as shall be necessary, in the reasonable opinion of such
Holders’ and such underwriters’ counsel, to conduct a reasonable
due diligence investigation for purposes of the Securities Act.






	(b)	 	Confidentiality.






	 	(i)	 	Each Holder shall and shall cause its directors,
officers, partners, managers, members, employees, advisors,
agents and other representatives, including without limitation
attorneys, accountants, consultants and financial advisors
(collectively, “Representatives”) to maintain the
confidentiality of and not to disclose any Confidential
Material; provided, however, that a Holder may disclose
Confidential Material (A) to such of its Representatives who
need such information in connection with such Holder’s
investment in securities of the Company, or (B) to the extent
required by applicable law, regulation, legal process or court
order.
	 
	 	(ii)	 	Notwithstanding the foregoing, a Holder or its
Representative may disclose to any and all Persons, without
limitation of any kind, the tax treatment and tax structure of
the transactions contemplated hereunder and all materials of
any kind (including opinions or other tax analyses) that are
provided to such Holder or such Representative relating to
such tax treatment and tax structure, except to the extent
necessary to comply with any applicable federal or state
securities laws. This authorization is not intended to permit
disclosure of any other information, including, without
limitation, (A) any portion of any materials to the extent not
related to the tax treatment or tax structure of the
transactions contemplated hereunder, (B) the identities of
participants or potential participants in the transactions
contemplated hereunder, (C) the existence or status of any
negotiations, (D) any pricing or financial information (except
to the extent such pricing or financial information is related
to the tax treatment or tax structure of the transactions
contemplated hereunder), or (E) any other term or detail not
relevant to the tax treatment or the tax structure of the
transactions
contemplated hereunder. Each Holder agrees not to (directly
or indirectly) trade in the Company’s securities in violation
of the applicable federal and state securities laws and
regulations. Each Holder shall not grant access, and the
Company shall not be required to grant access, to
Confidential Material under this Section 7 to any
Representative who will not agree to maintain the
confidentiality (to the same extent a Holder is required to
maintain confidentiality) of any Confidential Material
received from or otherwise made available to it by the
Company or the Holders under this Agreement.






19










 






	 	(iii)	 	Each Holder shall be bound by this Section 7(b)
and shall remain bound until the earlier of (A) the first
anniversary of the date on which such Holder is no longer a
party to this Agreement, and (B) the first date on which the
Confidential Material received by such Holder ceases to be
Confidential Material.






	8.	 	Postponements.






	 	(a)	 	If the Company shall fail to file any registration statement
required to be filed pursuant to a request for registration under
Section 2(a) hereof, the Initiating Holder or Initiating Holder
Group requesting such registration shall have the right to withdraw
the request for registration. Any such withdrawal shall be made by
giving written notice to the Company within 20 days after the date
on which a registration statement would otherwise have been required
to have been filed with the Commission under Section 2(a) hereof
(i.e., 20 days after the date that is 90 days after the conclusion
of the period within which requests for registration may be given to
the Company pursuant to Section 2(a)(ii), or, if, as of such 90th
day, the Company does not have the financial statements required to
be included in the registration statement, 30 days after the receipt
by the Company from its independent public accountants of such
financial statements). In the event of such withdrawal, the request
for registration shall not be counted for purposes of
determining the number of registrations to which Holders are
entitled pursuant to Section 2(a) hereof. The Company shall pay
all Expenses incurred in connection with a request for registration
withdrawn pursuant to this Section 8.
	 
	 	(b)	 	The Company shall not be obligated to file any registration
statement, or file any amendment or supplement to any registration
statement, and may suspend any Selling Holder’s rights to make sales
pursuant to any effective registration statement, at any time when
the Company, in the good faith and reasonably informed judgment of
its Board of Directors, determines that the filing thereof at the
time requested, or the offering of securities pursuant thereto,
would adversely affect a pending or proposed Public Offering of the
Company’s securities, a material financing, or a material
acquisition, merger, recapitalization, consolidation, reorganization
or similar transaction, or negotiations, discussions or pending
proposals with respect thereto. The Company shall promptly give the
Selling Holders written notice that such determination has been made
by the Board of Directors and (if known) an estimate of the
anticipated duration of the delay. The filing of a registration
statement, or any amendment or supplement thereto, by the Company
cannot be deferred, and any Selling Holder’s rights to make sales
pursuant to an effective registration statement cannot be suspended,
pursuant to the provisions of this Section 8(b) for more than 15
days after the abandonment or consummation of any of the foregoing
proposals or transactions. The Company may so defer or suspend the
use of any registration statement on not more than three occasions
in a calendar year and for no more than a total of 90 days in a
calendar year; provided that, after deferring or suspending the use
of any registration statement, the Company may not again defer or
suspend the use of the registration statement until a period of 30
days has elapsed after resumption of the




20









 






	 	 	 	use of the registration
statement. The Company shall promptly notify each Selling Holder of
the expiration or earlier termination of such deferral or suspension
period. If the Company suspends any Selling Holder’s rights to make
sales pursuant hereto, the applicable registration period shall be
extended by the number of days of such suspension.






	9.	 	Indemnification.





     (a) Indemnification by the Company. In connection with any registration statement filed by the Company
pursuant to Sections 2(a) or 3 hereof, the Company agrees to indemnify and hold
harmless to the fullest extent permitted by law each Selling Holder, each other
Person, if any, who controls such Selling Holder within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act, and their
respective stockholders, directors, officers, employees, partners, agents and
Affiliates (each, a “Company Indemnitee” for purposes of this Section 9(a)),
against any losses, claims, damages, liabilities, joint or several, actions or
proceedings, whether commenced or threatened, in respect thereof and whether or
not such Company Indemnitee is a party thereto, and expenses, including,
without limitation, the reasonable fees, disbursements and other charges
of legal counsel and reasonable costs of investigation and defense, to
which such Company Indemnitee may become subject under the Securities Act or
otherwise (collectively, a “Loss” or “Losses”), insofar as such Losses arise
out of or are based upon any untrue statement or alleged untrue statement of
any material fact contained in any registration statement under which such
securities were registered or otherwise offered or sold under the Securities
Act or otherwise, any preliminary prospectus, final prospectus or summary
prospectus related thereto, any amendment or supplement thereto, any exhibits
to the registration statement or documents or other information incorporated by
reference into such registration statement or prospectus (collectively, the
“Offering Documents”), or 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 light of the circumstances in which they were made not
misleading, or any violation by the Company of any federal or state law, rule
or regulation applicable to the Company and relating to action required of or
inaction by the Company in connection with any such registration; provided,
however, the Company shall not be liable to any Company Indemnitee in any such
case 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
such Offering Documents in reliance upon and in conformity with information
furnished by such Company Indemnitee to the Company in a writing duly executed
by such Company Indemnitee specifically stating that it is expressly for use
therein; provided further that, the Company shall not be liable to any Person
who participates as an underwriter in the offering or sale of Registrable
Common Stock or any other Person, if any, who controls (within the meaning of
the Exchange Act) such underwriter, in any such case to the extent that any
such Loss arises out of such Person’s failure to send or give a copy of the
final prospectus (including any documents incorporated by reference therein),
as the same may be then supplemented or amended, to the Person asserting an
untrue statement or alleged untrue statement or omission or alleged omission at
or prior to the written confirmation of the sale of Registrable Common Stock to
such Person if such statement or omission was corrected in such final
prospectus. Such indemnity shall remain in full force and effect regardless of
any investigation made by or on behalf of such Company Indemnitee and shall
survive the transfer of such securities by such Company Indemnitee.



21









 





     (b) Indemnification by the Offerors and Sellers. In connection with any registration statement filed by the
Company pursuant to Sections 2(a) or 3 hereof in which a Selling Holder has
registered for sale Registrable Common Stock, each such Selling Holder,
severally and not jointly, agrees to indemnify and hold harmless to the fullest
extent permitted by law the Company and each of its directors, officers,
employees, agents, partners, stockholders, Affiliates and each other Person, if
any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act and each other seller and such
seller’s directors, officers, employees, agents, partners, stockholders,
Affiliates and each other Person, if any, who controls the seller within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
(each, a “Holder Indemnitee” for purposes of this Section 9(b)), against all
Losses insofar as such Losses arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in any
Offering Documents or 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 light of circumstances in which they were made not misleading,
if such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity
with information furnished by such Selling Holder to the Company in
writing duly executed by such Selling Holder specifically stating that it is
expressly for use therein; provided, however, that the liability of such
indemnifying party under this Section 9(b) shall be limited to the amount of
the net proceeds received by such indemnifying party in the sale of Registrable
Common Stock giving rise to such liability. Such indemnity shall remain in
full force and effect, regardless of any investigation made by or on behalf of
the Holder Indemnitee and shall survive the transfer of such securities by such
indemnifying party.



     (c) Notices
of Losses, etc.. Promptly after receipt by an indemnified party of written notice of the
commencement of any action or proceeding involving a Loss referred to in
Sections 9(a) and (b), such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party, give written notice to the
latter of the commencement of such action; provided, however, that the failure
of any indemnified party to give notice as provided herein shall not relieve
the indemnifying party of its obligations under Sections 9(a) and (b), except
to the extent that the indemnifying party is materially and actually prejudiced
by such failure to give notice. In case any such action is brought against an
indemnified party, the indemnifying party shall be entitled to participate in
and, unless in such indemnified party’s reasonable judgment a conflict of
interest between such indemnified and indemnifying parties may exist in respect
of such Loss, to assume and control the defense thereof, in each case at its
own expense, jointly with any other indemnifying party similarly notified, to
the extent that it may wish, with counsel reasonably satisfactory to such
indemnified party, and after its assumption of the defense thereof, the
indemnifying party shall not be liable to such indemnified party for any legal
or other expenses subsequently incurred by the latter in connection with the
defense thereof other than reasonable costs of investigation, unless in such
indemnified party’s reasonable judgment a conflict of interest between such
indemnified and indemnifying parties arises in respect of such claim after the
assumption of the defense thereof. No indemnifying party shall be liable for
any settlement of any such action or proceeding effected without its written
consent, which shall not be unreasonably withheld. No indemnifying party
shall, without the consent of the indemnified party (which consent shall not be
unreasonably withheld), 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 a release from all
liability in respect of such



22









 





Loss or which requires action on the part of such
indemnified party or otherwise subjects the indemnified party to any obligation
or restriction to which it would not otherwise be subject.




     (d) Contribution. If the
indemnification provided for in this Section 9 shall for any reason be
unavailable to an indemnified party under Sections 9(a) or (b) in respect of
any Loss, then, in lieu of the amount paid or payable under Sections 9(a) or
(b), the indemnified party and the indemnifying party under Sections 9(a) or
(b) shall contribute to the aggregate Losses (including legal or other expenses
reasonably incurred in connection with investigating the same) (i) in such
proportion as is appropriate to reflect the relative fault of the Company and
the prospective Selling Holders which resulted in such Loss or action in
respect thereof, with respect to the statements, omissions or actions which
resulted in such Loss or action in respect thereof, as well as any other
relevant equitable considerations, or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as shall be
appropriate to reflect the relative benefits received by the Company, on the
one hand, and such prospective Selling Holders, on the other hand, from their
sale of Registrable Common Stock; provided that, for purposes of this clause
(ii), the relative benefits received by the prospective Selling Holders shall
be deemed not to exceed the net proceeds received by such Selling Holders. 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 obligations, if
any, of the Selling Holders to contribute as provided in this Section 9(d) are
several in proportion to the relative value of their respective Registrable
Common Stock covered by such registration statement and not joint. In
addition, no Person shall be obligated to contribute hereunder any amounts in
payment for any settlement of any action or Loss effected without such Person’s
consent (provided that such consent shall not be unreasonably withheld).



     (e) Other Indemnification. The
Company and each Holder who has registered for sale shares of its Registrable
Common Stock shall, with respect to any required registration or other
qualification of securities under any Federal or state law or regulation of any
governmental authority other than the Securities Act, indemnify Holder
Indemnitees and Company Indemnitees, respectively, against Losses, or, to the
extent that indemnification shall be unavailable to a Holder Indemnitee or
Company Indemnitee, contribute to the aggregate Losses of such Holder
Indemnitee or Company Indemnitee in a manner similar to that specified in the
preceding subsections of this Section 9 (with appropriate modifications).



     (f) Indemnification Payments. The indemnification and contribution required by this Section 9 shall be made
by periodic payments of the amount thereof during the course of any
investigation or defense, as and when any Loss is incurred and is due and
payable.



10. Permitted Securities. The
Company’s Board of Directors is expressly permitted to enter into agreements
which provide to any holder of newly issued shares of the Company’s Common
Stock rights, which are either pari passu or senior to any Holder’s rights
under this Agreement, with respect to the registration of such Common Stock
under the Securities Act; provided that, the performance of the obligations of
the Company pursuant to such agreement shall not violate or directly conflict
with any of the rights provided to the Holders or the obligations of the
Company under this Agreement; provided, however, such Common Stock was issued
in connection with an acquisition consummated by the Company or a new equity
investment made




23









 








by such holder in the Company; provided further that, the
registration rights shall only relate to the Common Stock issued in connection
with such acquisition or investment and not to all of the Company’s Common
Stock owned from time to time by the holders thereof. Except as expressly
authorized in this Section 10, the Company shall not grant any registration
rights to any Person which are pari passu or senior to the registration rights
granted hereby, without the prior consent of the Holders owning a majority of
the Registrable Common Stock then outstanding.




11. Adjustments Affecting Registrable Common Stock. In the event of a reorganization, recapitalization, stock
split, reverse stock split, stock dividend, combination of shares, merger,
consolidation, distribution of assets, or any other change in the corporate
structure or securities of the Company, the Company shall make such equitable
adjustments as it deems appropriate in the number and kind of shares of
Registrable Common Stock held by the Holders.




12. Rule 144 and Rule 144A. The
Company shall take all actions necessary to enable Holders to sell Registrable
Common Stock without registration under the Securities Act within the
limitation of the exemptions provided by (i) Rule 144 under the Securities Act,
as such Rule may be amended from time to time, (ii) Rule 144A under the
Securities Act, as such Rule may be amended from time to time, or (iii) any
similar rules or regulations hereafter adopted by the Commission, including,
without limiting the generality of the foregoing, filing on a timely basis all
reports required to be filed under the Exchange Act. Upon the written request
of any Holder, the Company shall deliver to such Holder a written statement as
to whether the Company has complied with such requirements.




13. Amendments and Waivers. Any
provision of this Agreement may be amended, modified or waived if, but only if,
the written consent to such amendment, modification or waiver has been obtained
from (i) except as provided in clauses (ii) and (iii) below, the Holder or
Holders of at least a majority of the shares of Registrable Common Stock then
outstanding and held by all Holders, (ii) in the case of any amendment,
modification or waiver of any provision of Section 4 or Section 9 hereof or
this Section 13 or any provisions as to the number of requests for registration
to which holders of Registrable Common Stock are entitled under Section 2 or
Section 3 hereof, the written consent of each Holder so affected, or (iii) in
the case of any other amendment, modification or waiver which materially and
adversely alters any right and/or obligation under this Agreement of any
Holder, the Holder or Holders of at least 75% of the shares of Registrable
Common Stock then outstanding and held by all Holders.




14. Nominees for Beneficial Owners. In the event that any Registrable Common Stock is held by a nominee for
the beneficial owner thereof, the beneficial owner thereof may, at its election
in writing delivered to the Company, be treated as the Holder of such
Registrable Common Stock for purposes of any request or other action by any
Holder or Holders pursuant to this Agreement or any determination of the number
or percentage of shares of Registrable Common Stock held by any Holder or
Holders contemplated by this Agreement. If the beneficial owner of any
Registrable Common Stock so elects, the Company may require assurances
reasonably satisfactory to it of such owner’s beneficial ownership of such
Registrable Common Stock.




15. Assignment. The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, successors and
permitted assigns. Any




24









 








Holder may assign to any Transferee (as permitted under
applicable law) of its Registrable Common Stock its rights and obligations
under this Agreement; provided that, each of the following conditions must be
satisfied prior to any Transfer: (i) such Transferee shall agree in writing by
executing a written joinder agreement in the form attached hereto as Schedule A
(the “Joinder Agreement”) prior to the Transfer to be bound by this Agreement
as if it were an original party hereto; and (ii) after giving effect to the
Transfer, the Transferee would be a 10% Holder, whereupon such assignee shall
for all purposes be deemed to be a Holder under this Agreement. Except as
provided above or otherwise permitted by this Agreement, neither this Agreement
nor any right, remedy, obligation or liability arising hereunder or by reason
hereof shall be assignable by any Holder without the prior written consent of
the other parties hereto. The Company may not assign this Agreement or any
right, remedy, obligation or liability arising hereunder or by reason hereof.




16. Restrictions on Transfer. Each certificate held by a 10% Holder on the Effective Date shall bear the
following legend:





	 	 	 	“THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE
ORIGINALLY ISSUED ON DECEMBER 23, 2003 PURSUANT TO THE JOINT
PLAN OF REORGANIZATION UNDER CHAPTER 11 OF THE BANKRUPTCY
CODE OF NRG ENERGY, INC. (THE “COMPANY”) AND CERTAIN OF ITS
SUBSIDIARIES, DATED AS OF OCTOBER 10, 2003 AND CONFIRMED BY
THE BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
ON NOVEMBER 24, 2003. THESE SECURITIES WERE ISSUED PURSUANT
TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENT OF SECTION
5 OF THE SECURITIES ACT OF 1933, AS AMENDED, (THE “ACT”)
PROVIDED BY SECTION 1145 OF THE BANKRUPTCY CODE, 11 U.S.C. §
1145, AND HAVE NOT BEEN REGISTERED UNDER THE ACT, AND TO THE
EXTENT THAT THE HOLDER OF THESE SECURITIES IS AN
“UNDERWRITER,” AS DEFINED IN SECTION 1145(b)(1) OF THE
BANKRUPTCY CODE, THESE SECURITIES MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT OR AN EXEMPTION FROM REGISTRATION
THEREUNDER.”





     Upon the delivery by a 10% Holder to the Company of an opinion of counsel
satisfactory to the Company that the securities represented thereby are no
longer subject to the restrictions set forth in §1145(b) of the Bankruptcy
Code, the Company shall remove such legend on all such certificates held by
such 10% Holder.



17. Notice of Transfer. Upon the request of the Company at any time and from time to time, each
Original Record Holder, each Original Other Holder, each Holder of Registrable
Common Stock and each party to this Agreement shall promptly (and in any event
within 8 Business Days) provide a written certification to the Company of (a)
the number of shares of Common Stock owned beneficially or of record by such
Person and each of its Affiliates, and (b) for requests sent by the Company
within 60 days after the expiration of a Holdback Period and referring to




25









 








such
Holdback Period, its compliance with the Equity Transfer restrictions set forth
in Section 6(d), including information regarding each Equity Transfer made by
such Person during such Holdback Period (including, without limitation, the
dates of each such Equity Transfer).




18. Calculation of Percentage or Number of Shares of Registrable Common
Stock. For purposes of this
Agreement, all references to a percentage or number of shares of Registrable
Common Stock or Common Stock shall be calculated based upon the number of
shares of Registrable Common Stock or Common Stock, as the case may be,
outstanding at the time such calculation is made and shall exclude any
Registrable Common Stock or Common Stock, as the case may be, owned by the
Company or any subsidiary of the Company. For the purposes of calculating any
percentage or number of shares of Registrable Common Stock or Common Stock as
contemplated by the previous sentence, the terms “10% Holder,” “Holder,”
“Initiating Holder,” “Original Record Holder” and “Original Other Holder” shall
include all Affiliates thereof owning any shares of Registrable Common Stock or
Common Stock, except as contemplated by the definition of the term “Original
Record Holder.”




19. Termination of Registration Rights. The Company’s obligations under Sections 2(a) and 3 hereof to register
Common Stock for sale under the Securities Act shall terminate on the fourth
anniversary of the Effective Date; provided, however, that if on such fourth
anniversary any Holder is a 10% Holder, the Company’s obligations hereunder
shall continue solely with respect to such 10% Holder and shall terminate when
such Holder ceases to be a 10% Holder; provided further that, if the Company
defers any registration and/or suspends any Selling Holder’s rights to make
sales pursuant to Section 8(b), the Company’s obligations under Sections 2(a)
and (3) to register Registrable Common Stock for sale under the Securities Act
shall be extended by the total number of days of all such deferrals and
suspensions. In addition, the Company’s obligations under this Agreement shall
cease with respect to any Person when such Person (i) ceases to be a Holder or
(ii) delivers to the Company a Withdrawal Notice (as hereinafter defined) in
accordance with the provisions of this Section 19. Any Holder may elect, at
any time and from time to time, to cause all (but not less than all) of the
Registrable Common Stock held by such Holder not to be subject to this
Agreement by delivery of a written notice to the Company (a “Withdrawal
Notice”). Upon receipt of a Withdrawal Notice, all such shares shall no longer
be deemed to be Registrable Common Stock and such Holder shall no longer be
bound by or entitled to the benefits of this Agreement; provided that (except
as provided below), no Holder may deliver a Withdrawal Notice during the period
commencing on the date on which the Company sends such Holder written notice of
its intention to effect a registration pursuant to Sections 2 or 3 hereof and
until the earlier of (y) 180 days after the effective date of such registration
or (z) the date on which the Company shall, in accordance with Sections 3 or 8
hereof, not register any securities with respect to which it had given written
notice of its intention to register to such Holder. Notwithstanding any of the foregoing, (i) the
Company’s obligations under Sections 4 and 9, (ii) the Holders’ obligations
under Section 7 and (iii) both the Company and the Holders’ obligations under
Section 6(d) with respect to any registration under either Section 2(a) or
Section (3) which commences prior to the termination of this Agreement shall
survive in accordance with their terms.




20. Miscellaneous.





26










 





     (a) 
Further Assurances. Each of
the parties hereto shall execute such documents and other papers and perform
such further acts as may be reasonably required or advisable to carry out the
provisions of this Agreement and the transactions contemplated hereby.



     (b) Headings. The headings in
this Agreement are for convenience of reference only and shall not control or
affect the meaning or construction of any provisions hereof.



     (c) Conflicting Instructions. If
the Company receives conflicting instructions, notices or elections from two or
more Persons with respect to the same Registrable Common Stock, the Company
will act upon the basis of instructions, notice or election received from the
registered owner of such Registrable Common Stock.



     (d) Remedies. Each Holder, in
addition to being entitled to exercise all rights granted by law, including
recovery of damages, will be entitled to specific performance of its rights
under this Agreement. The parties hereto agree that monetary damages would not
be adequate compensation for any loss incurred by reason of a breach by it of
the provisions of this Agreement and the parties hereto hereby agree to waive
the defense in any action for specific performance that a remedy at law would
be adequate.



     (e) Entire Agreement. This
Agreement constitutes the entire agreement and understanding of the parties
hereto in respect of the subject matter contained herein, and there are no
restrictions, promises, representations, warranties, covenants, or undertakings
with respect to the subject matter hereof, other than those expressly set forth
or referred to herein. This Agreement supersedes all prior agreements and
understandings between the parties hereto with respect to the subject matter
hereof.



     (f) Notices. Any notices or
other communications to be given hereunder by any party to another party shall
be in writing and shall be delivered personally, by telecopy, by certified or
registered mail, postage prepaid, return receipt requested, or by Federal
Express or other comparable delivery service, as follows: (i) if to the
Company, to:



NRG Energy, Inc.

Attention: General Counsel

901 Marquette Avenue

Minneapolis, Minnesota 55402





Tel: (612) 373-5300

Fax: (612) 373-5392





with a copy to:





Kirkland & Ellis LLP

Attention: Margaret A. Gibson, P.C.

200 East Randolph Drive

Chicago, Illinois 60601





Tel: (312) 861-2000

Fax: (312) 861-2200





27









 





(ii) if to a Holder, to the address of such Holder as set forth in the
signature pages hereto, or (iii) to such other address as the party to whom
notice is to be given may provide in a written notice to the other parties
hereto, a copy of which shall be on file with the Secretary of the Company.
Notice shall be effective when delivered if given personally, when receipt is
acknowledged if telecopied, three days after mailing if given by registered or
certified mail as described above, and one Business Day after deposit if given
by Federal Express or comparable delivery service.




     (g) Governing Law. This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York.



     (h) Severability.
Notwithstanding any provision of this Agreement, neither the Company nor any
other party hereto shall be required to take any action which would be in
violation of any applicable Federal or state securities law. The invalidity or
unenforceability of any provision of this Agreement in any jurisdiction shall
not affect the validity, legality or enforceability of any other provision of
this Agreement in such jurisdiction or the validity, legality or enforceability
of this Agreement, including any such provision, in any other jurisdiction, it
being intended that all rights and obligations of the parties hereunder shall
be enforceable to the fullest extent permitted by law.



     (i) Counterparts. This Agreement
may be executed in two or more counterparts, each of which shall be deemed an
original but all of which shall constitute one and the same Agreement.



[REMAINDER OF PAGE LEFT BLANK INTENTIONALLY]




28









 





     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.








	 	 	 	 	 
	

	 	NRG ENERGY, INC.
	 
	

	 	By:	 	 
	

	 	 	 	
 
	

	 	 	 	Name:
	

	 	 	 	Title:







 









 





     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.



	 	 	 	 	 
	 	 	HOLDER:
 
	

	 	By:	 	 
	

	 	 	 	
 
	

	 	 	 	Name:

	

	 	 	 	Title:

	

	 	 	 	 
Number of Shares
of Common Stock Owned:
 
	

	 	 	 	
 
	

	 	 	 	Address:

	

	 	 	 	
 
	

	 	 	 	
 
	

	 	 	 	Telephone
No.:

	

	 	 	 	Facsimile
No.:








 









 





SCHEDULE A




REGISTRATION RIGHTS AGREEMENT




Joinder Agreement




     The undersigned is executing and delivering this Joinder Agreement
pursuant to the Registration Rights Agreement dated as of  
        (as the
same may hereafter be amended, the “Agreement”), among NRG Energy, Inc., a
Delaware corporation (the “Company”), and the other persons named as parties
therein. Capitalized terms used herein and not defined herein have the
meanings set forth in the Agreement.



     By executing and delivering this Joinder Agreement to the Company, the
undersigned hereby agrees to become a party to, to be bound by, and to comply
with the provisions of the Agreement in the same manner as if the undersigned
were a Holder of Registrable Common Stock as an original signatory to the
Agreement, and the undersigned’s            shares of Common Stock shall be included
as Registrable Common Stock under the Agreement.



     Accordingly, the undersigned has executed and delivered this Joinder
Agreement as of the
            day
of      ,  200.



	 	 	 	 	 
	 	 	HOLDER:
	 
	

	 	By:	 	 
	

	 	 	 	
 

	

	 	 	 	Name:
	

	 	 	 	
 

	

	 	 	 	Title:
	

	 	 	 	
 

	

	 	 	 	Number of Shares of Common
Stock Owned:




	

	 	 	 	
 
	

	 	 	 	Address:
	

	 	 	 	
 

	

	 	 	 	
 
	

	 	 	 	
 
	

	 	 	 	Telephone No.:
	

	 	 	 	
 

	

	 	 	 	Facsimile No.:
	

	 	 	 	
 








 









 





SCHEDULE B




ELECTION FORM




	 	 	 
	o	 	I do not wish to be a party to the Registration Rights Agreement
between NRG Energy, Inc., a Delaware corporation (“NRG”), and other
Holders (the “Registration Rights Agreement”). (If you check this box,
skip ahead to the bottom of this Election Form, date and sign it at the
bottom and return it to the addresses listed in the letter above.)






	 	 	 
	o	 	I hereby confirm that I am an Original Record Holder or an
Original Other Holder and that I, and each of my Affiliates (if any) named
below, wish to become parties to the Registration Rights Agreement. (If
you check this box, please complete the remainder of this Election Form,
date and sign it at the bottom and return it to the addresses listed in
the letter above.)






	 	 	 	 	 
	Name and Address of Beneficial Owner

	 	 	 	 
	

	 	 	 	Number of shares
	(Please provide information for you

	 	Contact phone and
	 	of Common Stock
	and
each of your Affiliates, if any)

	 	facsimile
numbers

	 	held beneficially








This Election Form must be completed and signed by you and each of your
Affiliates (if any) listed above. Please use additional pages as necessary.



	 	 	 
	Name of Beneficial Owner:	 	 
	 	 	
 
	By:	 	 
	 	 	
 
	 	 	(authorized signature)
	Printed Name:	 	 
	 	 	
 
	Title:	 	 
	 	 	
 
	Date: