EXHIBIT 4.3
REGISTRATION RIGHTS AGREEMENT
DATED AS OF
APRIL __, 2005
BY AND AMONG
INTERNATIONAL COAL GROUP, INC.,
ICG HOLDCO, INC.
AND
THE HOLDERS IDENTIFIED HEREIN
TABLE OF CONTENTS
PAGE
ARTICLE I. DEFINITIONS AND CERTAIN INTERPRETATIVE MATTERS................... 1
1.1 Definitions...................................................... 1
ARTICLE II. DEMAND REGISTRATION.............................................. 4
2.1 Right to Demand Registration..................................... 4
2.2 Blackout Period.................................................. 5
2.3 Effective Demand Registrations................................... 6
2.4 Revocation of Demand Registration................................ 6
2.5 Continuous Effectiveness of Registration Statement............... 6
2.6 Underwritten Demand Registration................................. 7
ARTICLE III. PIGGYBACK REGISTRATION........................................... 7
3.1 Right to Piggyback............................................... 7
3.2 Priority on Piggyback Registrations.............................. 7
3.3 Withdrawal of Piggyback Registration............................. 8
ARTICLE IV. PROCEDURES AND EXPENSES.......................................... 9
4.1 Registration Procedures.......................................... 9
4.2 Information from Holders......................................... 11
4.3 Suspension of Disposition........................................ 12
4.4 Registration Expenses............................................ 13
ARTICLE V. INDEMNIFICATION.................................................. 13
5.1 Indemnification by the Company................................... 13
5.2 Indemnification by Holders....................................... 14
5.3 Conduct of Indemnification Proceedings........................... 14
5.4 Contribution, etc................................................ 15
ARTICLE VI. RULE 144......................................................... 16
ARTICLE VII. PARTICIPATION IN UNDERWRITTEN OFFERINGS.......................... 16
ARTICLE VIII. MISCELLANEOUS................................................... 16
8.1 Notices.......................................................... 16
8.2 Confidentiality.................................................. 17
8.3 Assignment....................................................... 17
8.4 No Third-Party Beneficiaries..................................... 17
-i-
TABLE OF CONTENTS
(continued)
PAGE
8.5 Entire Agreement................................................. 18
8.6 Amendment and Waiver............................................. 18
8.7 Counterparts..................................................... 18
8.8 Severability..................................................... 18
8.9 Governing Law.................................................... 18
8.10 Specific Performance............................................. 18
8.11 Further Assurances............................................... 18
8.12 Consummation of Mergers.......................................... 18
-ii-
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of April ,
2005, is made by and among International Coal Group, Inc., a Delaware
corporation (the "Company"), ICG Holdco, Inc., a Delaware corporation ("Holdco")
and wholly-owned subsidiary of the Company and the Holders listed on the
signature pages hereto or as may be updated from time to time on Schedule A.
RECITALS
A. In connection with the consummation of the purchase by the Company
of certain assets of Horizon Natural Resources Company and certain of its
subsidiaries, (i) WLR Coal Holdings, LLC ("WLR Holdings"), a wholly owned
subsidiary of WLR, was issued an aggregate of 10,804,172 shares (the "WLR
Shares") of the common stock ("Common Stock") of the Company and (ii) the
Investors were each issued the aggregate number of shares of Common Stock
indicated on the signature page hereof (all such shares of Common Stock, the
"Investor Shares").
B. As a result of the merger on December 1, 2004, of WLR Holdings with
and into the Company, the WLR Shares were transferred to WLR.
C. In connection with the business combination agreements with each of
Anker Coal Group, Inc. and CoalQuest Development, LLC executed on March 31,
2005, the Company agreed to merge with an indirect subsidiary of Holdco thereby
becoming an indirect subsidiary of Holdco and making Holdco the parent holding
company.
C. Pursuant to that certain Standby Funding Commitment (the
"Commitment") dated as of July 8, 2004 among WLR Holdings, the Company and the
Investors, the Company agreed to enter into a registration rights agreement on
the terms set forth in therein
AGREEMENTS
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements contained herein and in the Commitment, and intending to be legally
bound hereby, the parties hereto hereby agree as follows:
Article I. Definitions and Certain Interpretative Matters
1.1 Definitions. For purposes of this Agreement, the following terms
have the following meanings:
(a) "Advice": As defined in Section 4.3.
(b) "Affiliate": As defined in Rule 12b-2 under the Exchange Act.
(c) "Agreement": As defined in the introductory paragraph hereof.
(d) "Blackout Period": Any period during which, in accordance with
Section 2.2, the Company is not required to effect the filing of a Registration
Statement or is entitled to postpone the preparation, filing or effectiveness or
suspend the effectiveness of a Registration Statement.
(e) "Business Day": Any day, other than a Saturday or Sunday, on
which national banking institutions in New York, New York, are open.
(f) "Certificate of Incorporation": The Amended and Restated
Certificate of Incorporation of the Company, as amended from time to time.
(g) "Commitment": As defined in Recital C.
(h) "Common Stock": As defined in Recital A.
(i) "Company": As defined in the introductory paragraph hereof.
(j) "Exchange Act": The Securities Exchange Act of 1934, as
amended.
(k) "Filing Date": (i) With respect to a Registration Statement to
be filed on Form S-1 (or any applicable successor form) in connection with an
Initial Public Offering, not later than 180 days after receipt by the Company of
a request for such Registration Statement, (ii) with respect to a Registration
Statement to be filed on S-1 (or any applicable successor form) in connection
with a Public Offering other than an Initial Public Offering or on Form S-3 (or
any applicable successor form), not later than 90 days after receipt by the
Company of a request for such Registration Statement and (iii) with respect to a
Registration Statement to be filed other than on Form S-1 or Form S-3 (or any
applicable successor form), not later than 120 days after receipt by the Company
of a request for such Registration Statement.
(l) "Holdco": As defined in the introductory paragraph hereof.
(m) "Holders": WLR or one of its Affiliates or an Investor or one
of its Affiliates, in each case if such Affiliate becomes the owner of
Registrable Securities and has become a party to this Agreement.
(n) "Initial Public Offering": means the Company's first Public
Offering.
(o) "Indemnified Party": As defined in Section 5.3.
(p) "Indemnifying Party": As defined in Section 5.3.
(q) "Investor": The initial Holders other than WLR.
(r) "Investor Shares": As defined in Recital A.
(s) "Losses": As defined in Section 5.1.
(t) "NYSE": The New York Stock Exchange
2
(u) "Other Holders" Any Person having rights to participate in a
registration of the Company's securities.
(v) "Person": Any individual, corporation, general or limited
partnership, limited liability company, joint venture, trust or other entity or
association, including without limitation any governmental authority.
(w) "Piggyback Notice": As defined in Section 3.1.
(x) "Piggyback Registration": As defined in Section 3.1.
(y) "Prospectus": The prospectus included in the applicable
Registration Statement, as supplemented by any and all prospectus supplements
and as amended by any and all amendments (including post-effective amendments)
and including all material incorporated by reference or deemed to be
incorporated by reference in such prospectus.
(z) "Public Offering": means any primary public offering of Common
Stock by the Company pursuant to an effective Registration Statement under the
Securities Act, other than pursuant to a registration statement in Form S-4 or
S-8 or any successor or similar form.
(aa) "Registrable Securities": (i) the WLR Shares and the Investor
Shares and (ii) any securities paid, issued or distributed in respect of any
such shares by way of stock dividend, stock split or distribution, or in
connection with a combination of shares, recapitalization, reorganization,
merger or consolidation, or otherwise; provided, however, that as to any
Registrable Securities, such securities will irrevocably cease to constitute
"Registrable Securities" upon the earliest to occur of: (A) the date on which
the securities are disposed of pursuant to an effective registration statement
under the Securities Act; (B) the date on which the securities are distributed
to the public pursuant to Rule 144 (or any successor provision) under the
Securities Act; (C) the date on which the securities may be freely sold publicly
without either registration under the Securities Act or compliance with any
restrictions, including without limitation restrictions as to volume or manner
of sales, under Rule 144(k) (or any successor provision); (D) the date on which
the securities have been transferred to any Person other than a Holder; or (E)
the date on which the securities cease to be outstanding.
(bb) "Registration Expenses": As defined in Section 4.4.
(cc) "Registration Statement": Any registration statement of the
Company under the Securities Act that covers any of the Registrable Securities
pursuant to the provisions of this Agreement, including the related Prospectus,
all amendments and supplements to such registration statement (including
post-effective amendments), and all exhibits and all materials incorporated by
reference or deemed to be incorporated by reference in such registration
statement.
(dd) "Required Period": With respect to a "shelf registration"
requested pursuant to Section 2.1(b), two years following the first day of
effectiveness of such Registration Statement, and with respect to any other
Registration Statement, (a) at any time following the first anniversary of the
Effective Date and on or before the fifth anniversary of the date of this
Agreement, 180 days following the first day of effectiveness of such
Registration Statement and
3
(b) at any time following the fifth anniversary of the date of this Agreement,
90 days following the first day of effectiveness of such Registration Statement.
(ee) "Rule 144": Rule 144 promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
(ff) "SEC": The Securities and Exchange Commission.
(gg) "Securities Act": The Securities Act of 1933, as amended.
(hh) "Underwritten Registration" or "Underwritten Offering": A
registration in which securities of the Company are sold to an underwriter for
reoffering to the public.
(ii) "WLR": WLR Recovery Fund II, L.P.
(jj) Certain Interpretative Matters. Unless the context otherwise
requires, (a) all references to Articles or Sections are to Articles or Sections
of this Agreement, (b) each term defined in this Agreement has the meaning
assigned to it, (c) all uses of "herein," "hereto," "hereof" and words similar
thereto in this Agreement refer to this Agreement in its entirety, and not
solely to the Article, Section or provision in which it appears, (d) "or" is
disjunctive but not necessarily exclusive, and (e) words in the singular include
the plural and vice versa. Unless otherwise specified, the use of the term "day"
will be deemed to be a calendar day and not a Business Day.
Article II. Demand Registration
2.1 Right to Demand Registration.
(a) At any time and from time to time, WLR or any Investor or
group of Investors representing 20% of all Registrable Securities may request in
writing that the Company effect the registration of all or part of such Holders'
Registrable Securities with the SEC under and in accordance with the provisions
of the Securities Act (which written request will specify (i) the then current
name and address of such Holder or Holders, (ii) the aggregate number of shares
of Registrable Securities requested to be registered, (iii) the total number of
shares of Common Stock then held by such Holder or Holders, and (iv) the means
of distribution). The Company will file a Registration Statement covering such
Holder's or Holders' Registrable Securities requested to be registered as
promptly as practicable (and, in any event, by the applicable Filing Date) after
receipt of such request; provided, however, that the Company will not be
required to take any action pursuant to this Article II:
(A) if such request is made by WLR and prior to the date of
such request, the Company has effected three registrations pursuant
to this Article II upon the request of WLR;
(B) if such request is made by an Investor and prior to the
date of such Investor's request, the Company has effected one
registration pursuant to this Article II upon the request of such
Investor;
4
(C) if such request is made by a group of Investors
representing 20% of all Registrable Securities and prior to the date
of such request, the Company has effected two registrations pursuant
to this Article II upon the request of a group of Investors;
(D) if the Company has effected a registration within the
180-day period preceding such request;
(E) if a Registration Statement is effective at the time
such request is made pursuant to which the Holder or Holders that
requested registration could effect the disposition of such Holder's
or Holders' Registrable Securities in the manner requested;
(F) in the case of an Underwritten Offering, if the
Registrable Securities requested to be registered have an aggregate
then-current market value of less than $75.0 million (before
deducting underwriting discounts and commission); or
(G) during the pendency of any Blackout Period.
(b) If a Holder or Holders request that the Company effect a
registration pursuant to this Section 2.1 and the Company is at such time
eligible to use Form S-3, the Holder or Holders making such request may specify
that the requested registration be a "shelf registration" for an offering on a
delayed or continuous basis pursuant to Rule 415 of the Securities Act.
2.2 Blackout Period.
(a) Notwithstanding anything contained in Section 2.1 to the
contrary, if (i) at any time during which Holders may request a registration
pursuant to Section 2.1, the Company files or proposes to file a registration
statement with respect to an offering of equity securities of the Company for
its own account and (ii) with reasonable prior notice (A) the Company (in the
case of an offering that is not an Underwritten Offering) advises the Holders
that the Board of Directors of the Company has determined, in the good faith
exercise of its reasonable business judgment, that a sale or distribution of
Registrable Securities would adversely affect such offering or (B) the managing
underwriter, if any, advises the Company in writing (in which case the Company
will notify the Holders) that a sale or distribution of Registrable Securities
would adversely affect such offering, then the Company will not be obligated to
effect the initial filing of a Registration Statement pursuant to Section 2.1
beginning the 30 days prior to the date the Company in good faith estimates will
be the date of the filing of, and ending on the date which is 90 days following
the effective date of, such registration statement; provided that, if the
registration to be effected under this Article II is the Company's Initial
Public Offering, the Company will not be obligated to effect the initial filing
of a Registration Statement pursuant to Section 2.1 beginning the 90 days prior
to the date the Company in good faith estimates will be the date of the filing
of the Registration Statement.
(b) Notwithstanding anything contained in Section 2.1 to the
contrary, if the Board of Directors of the Company determines, in the good faith
exercise of its reasonable
5
business judgment, that the registration and distribution of Registrable
Securities (i) would materially impede, delay or interfere with any financing,
acquisition, corporate reorganization or other significant transaction, or any
negotiations, discussions or pending proposals with respect thereto, involving
the Company or any of its subsidiaries or (ii) would require disclosure of
non-public material information, the disclosure of which would materially and
adversely affect the Company, the Company will promptly give the Holders written
notice of such determination and will be entitled to postpone the preparation,
filing or effectiveness or suspend the effectiveness of a Registration Statement
for a reasonable period of time not to exceed 90 days.
(c) Notwithstanding anything contained in this Section 2.2 to the
contrary, there will be no more than two Blackout Periods during any consecutive
12-month period during the time in which Holders may request a registration
pursuant to Section 2.1.
2.3 Effective Demand Registrations.
(a) The Company may satisfy its obligations under Section 2.1 by
amending (to the extent permitted by applicable law) any registration statement
previously filed by the Company under the Securities Act so that such amended
registration statement will permit the disposition (in accordance with the
intended methods of disposition specified as aforesaid) of all of the
Registrable Securities for which a demand for registration has been properly
made under Section 2.1. If the Company so amends a previously filed registration
statement, it will be deemed to have effected a registration for purposes of
Section 2.1.
(b) Except as provided in Section 2.4, a registration requested
pursuant to Section 2.1 will not be deemed to be effected for purposes of
Section 2.1 if it has not been declared effective by the SEC or become effective
in accordance with the Securities Act and the rules and regulations thereunder
and kept effective as contemplated by Section 2.5.
2.4 Revocation of Demand Registration. Holders of at least a majority of
the Registrable Securities to be included in a Registration Statement pursuant
to Section 2.1 may, at any time prior to the effective date of the Registration
Statement relating to such registration, revoke its or their request to have
Registrable Securities included therein by providing a written notice to the
Company. In the event such Holders of Registrable Securities revoke such
request, either (i) the Holders of Registrable Securities who revoke such
request shall reimburse the Company for all its out-of-pocket expenses incurred
in the preparation, filing and processing of the Registration Statement or (ii)
the requested registration that has been revoked will be deemed to have been
effected for purposes of Section 2.1; provided, however, that, if such
revocation was based on the Company's failure to comply in any material respect
with its obligations hereunder, such reimbursement will not be required and the
requested registration that has been revoked will not be deemed to have been
effected for purposes of Section 2.1.
2.5 Continuous Effectiveness of Registration Statement. The Company will
use its reasonable best efforts to keep a Registration Statement that has become
effective as contemplated by this Article II continuously effective for (a) at
least the Required Period (subject to extension pursuant to Section 4.3) or (b)
such shorter period that will terminate when all Registrable Securities covered
by such Registration Statement (i) have been sold pursuant to such Registration
Statement or (ii) cease to be Registrable Securities; provided, however, that in
6
no event will such period expire prior to the expiration of the applicable
period referred to in Section 4(3) of the Securities Act and Rule 174
promulgated thereunder.
2.6 Underwritten Demand Registration. In the event that a registration
requested pursuant to Section 2.1 is to be an Underwritten Registration, the
managing underwriter of the Underwritten Offering relating thereto will be
selected, after consultation with the Company, by the Holders of at least a
majority of the Registrable Securities proposed to be included in such
Underwritten Registration. All Holders proposing to distribute their securities
through an Underwritten Offering agree to enter into an underwriting agreement
with the underwriters, provided that the underwriting agreement is in customary
form and reasonably acceptable to the Holders of a majority of the Registrable
Securities to be included in the Underwritten Offering.
Article III. Piggyback Registration
3.1 Right to Piggyback. If at any time, and from time to time, the
Company proposes to file a registration statement under the Securities Act with
respect to an offering of any class of equity securities (other than a
registration statement (a) on Form X-0, Xxxx X-0 or any successor forms thereto
or (b) filed solely in connection with an offering made solely to existing
stockholders or employees of the Company), whether or not for its own account,
then the Company will give written notice (the "Piggyback Notice") of such
proposed filing to the Holders at least 45 days before the anticipated filing
date. Such notice will offer the Holders the opportunity to register such amount
of Registrable Securities as each Holder may request on the same terms and
conditions as the registration of the Company's or Other Holders' securities, as
the case may be (a "Piggyback Registration"). The Company will include in each
Piggyback Registration all Registrable Securities for which the Company has
received written requests for inclusion within 15 days after delivery of the
Piggyback Notice, subject to Section 3.2.
3.2 Priority on Piggyback Registrations. If the Piggyback Registration
is an Underwritten Offering, the Company will cause the managing underwriter of
that proposed offering to permit the Holders that have requested Registrable
Securities to be included in the Piggyback Registration to include all such
Registrable Securities on the same terms and conditions as any similar
securities, if any, of the Company. Notwithstanding the foregoing, if the
managing underwriter or underwriters of such Underwritten Offering advises the
Company and the selling Holders that, in its good faith determination, the total
amount of securities that the Company, such Holders and any Other Holders
propose to include in such offering is such as to materially and adversely
affect the success of such Underwritten Offering, then:
(a) if such Piggyback Registration is a primary registration by
the Company for its own account, the Company will include in such Piggyback
Registration: (i) first, all securities to be offered by the Company; (ii)
second, up to the full amount of securities requested to be included in such
Piggyback Registration by the Holders and any Other Holders having registration
rights on a pari passu basis, allocated pro rata among such holders, on the
basis of the amount of securities requested to be included therein by each such
holder; and (iii) third, up to the full amount of securities requested to be
included in such Piggyback Registration by any Other Holders in accordance with
the priorities, if any, then existing among the Company and the Other Holders so
that the total amount of securities to be included in such Underwritten
7
Offering is the full amount that, in the opinion of such managing underwriter,
can be sold without materially and adversely affecting the success of such
Underwritten Offering; and
(b) if such Piggyback Registration is an underwritten secondary
registration for the account of holders of securities of the Company, the
Company will include in such registration: (i) first, all securities of the
Persons exercising "demand" registration rights requested to be included
therein; (ii) second, up to the full amount securities proposed to be included
in the registration by the Company, (iii) third, up to the full amount of
securities requested to be included in such Piggyback Registration by the
Holders and any Other Holders having registration rights on a pari passu basis,
allocated pro rata among such holders, on the basis of the amount of securities
requested to be included therein by each such holder; and (iv) fourth, up to the
full amount of securities requested to be included in such Piggyback
Registration by the Other Holders in accordance with the priorities, if any,
then existing among the Company and the Other Holders so that the total amount
of securities to be included in such Underwritten Offering is the full amount
that, in the written opinion of such managing underwriter, can be sold without
materially and adversely affecting the success of such Underwritten Offering.
(c) If so requested (pursuant to a timely written notice) by the
managing underwriter in any Underwritten Offering the Holders participating in
such Underwritten Offering will agree not to effect any public sale or
distribution (or any other type of sale as the managing underwriter reasonably
determines is necessary in order to effect the Underwritten Offering) of any
such Registrable Securities, including a sale pursuant to Rule 144 (but
excluding any Registrable Securities included in such Underwritten Offering),
during the 10 days prior to, and during the 90 days (or such additional period
as the managing underwriter reasonably determines is necessary in order to
effect the Underwritten Offering) following, the closing date of such
Underwritten Offering. In the event of such a request, the Company may impose,
during such period, appropriate stop-transfer instructions with respect to the
Registrable Securities subject to such restrictions.
3.3 Withdrawal of Piggyback Registration.
(a) If at any time after giving the Piggyback Notice and prior to
the effective date of the Registration Statement filed in connection with the
Piggyback Registration, the Company determines for any reason not to register or
to delay the Piggyback Registration, the Company may, at its election, give
written notice of its determination to all Holders, and (i) in the case of a
determination not to register, will be relieved of its obligation to register
any Registrable Securities in connection with the abandoned Piggyback
Registration, without prejudice, and (ii) in the case of a determination to
delay the Piggyback Registration, will be permitted to delay the registration
for a period not exceeding 180 days.
(b) Any Holder of Registrable Securities requesting to be included
in a Piggyback Registration may withdraw its request for inclusion by giving
written notice to the Company of its intention to withdraw from that
registration, provided, however, (i) the Holder's request must be made in
writing, in the case of an Underwritten Registration, at least five Business
Days prior to the anticipated effective date of the Registration Statement, or
if the registration is not an Underwritten Registration, at least five Business
Days prior to the
8
anticipated filing date of the Registration Statement covering the Piggyback
Registration, and (ii) the withdrawal will be irrevocable and, after making the
withdrawal, a Holder will no longer have any right to include its Registrable
Securities in that Piggyback Registration.
(c) The Company shall be deemed to have satisfied its obligations
with respect to any Piggyback Registration to any Holder under this Article III
notwithstanding an election to withdraw under this Section 3.3.
Article IV. Procedures and Expenses
4.1 Registration Procedures. In connection with the Company's
registration obligations pursuant to Articles II and III, the Company will
effect such registrations to permit the sale of Registrable Securities by a
Holder in accordance with the intended method or methods of disposition thereof,
and pursuant thereto the Company will as promptly as reasonably practicable:
(a) subject to Section 2.1, prepare and file with the SEC a
Registration Statement on an appropriate form under the Securities Act available
for the sale of the Registrable Securities by the selling Holders in accordance
with the intended method or methods of distribution thereof; provided, however,
that the Company will, before filing, furnish to each selling Holder and the
managing underwriter, if any, copies of the Registration Statement or Prospectus
proposed to be filed;
(b) subject to Section 2.5, prepare and file with the SEC any
amendments and post-effective amendments to the Registration Statement as may be
necessary and any supplements to the Prospectus as may be required, in the
opinion of the Company and its counsel, by the rules, regulations or
instructions applicable to the registration form used by the Company or by the
Securities Act or rules and regulations thereunder to keep the Registration
Statement effective until the earlier of (i) all Registrable Securities covered
by the Registration Statement are sold in accordance with the intended plan of
distribution set forth in the Registration Statement or supplement to the
Prospectus or (ii) the termination of the Required Period;
(c) promptly following its actual knowledge thereof, notify the
selling Holders and the managing underwriter, if any,
(i) when a Prospectus or any Prospectus supplement or
amendment has been filed and, with respect to a Registration Statement or
any post-effective amendment, when the Registration Statement has become
effective,
(ii) of any request by the SEC or any other governmental
authority for amendments or supplements to a Registration Statement or
related Prospectus or for additional information,
(iii) of the issuance by the SEC or any other governmental
authority of any stop order suspending the effectiveness of a Registration
Statement or the initiation of any proceedings for that purpose,
9
(iv) of the receipt by the Company of any written
notification with respect to the suspension of the qualification or
exemption from qualification of any of the Registrable Securities for sale
in any jurisdiction or the initiation or threatening of any proceeding for
such purpose,
(v) of the occurrence of any event which makes any statement
made in the Registration Statement or Prospectus untrue in any material
respect or which requires the making of any changes in a Registration
Statement or Prospectus or other documents so that it will not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, and
(vi) of the Company's reasonable determination that a
post-effective amendment to a Registration Statement would be appropriate;
(d) use its reasonable best efforts to obtain the withdrawal of
any order suspending the effectiveness of a Registration Statement, or the
lifting of any suspension of the qualification or exemption from qualification
of any of the Registrable Securities for sale in any jurisdiction, at the
earliest practicable date;
(e) furnish to each selling Holder and the managing underwriter,
if any, at least one conformed copy of the Registration Statement and any
post-effective amendment thereto, including financial statements (but excluding
all schedules, all documents incorporated or deemed incorporated therein by
reference and all exhibits);
(f) prior to any public offering of Registrable Securities,
register or qualify or cooperate with the selling Holders, the managing
underwriter, if any, and their respective counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale under the
securities or blue sky laws of such jurisdictions within the United States as
the selling Holders or the managing underwriter reasonably request in writing
and maintain each registration or qualification (or exemption therefrom)
effective during the period such Registration Statement is required to be kept
effective; provided, however, the Company will not be required to qualify
generally to do business in any jurisdiction in which it is not then so
qualified or take any action which would subject it to general service of
process or taxation in any jurisdiction in which it is not then so subject;
(g) as promptly as practicable upon the occurrence of any event
contemplated by Section 4.1(c)(v) or 4.1(c)(vi) hereof, prepare a supplement or
post-effective amendment to each Registration Statement or a supplement to the
related Prospectus, or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Securities being sold thereunder,
such Prospectus will not contain an untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading;
(h) in the case of an Underwritten Offering, enter into customary
and reasonable agreements (including an underwriting agreement) and take all
other actions
10
reasonably necessary or desirable to expedite or facilitate the disposition of
the Registrable Securities, and in connection therewith:
(i) use its reasonable best efforts to obtain opinions of
counsel to the Company and updates thereof (which counsel and opinions (in
form, scope and substance) are reasonably satisfactory to the managing
underwriter, if any, and each selling Holder addressed to each selling
Holder and the managing underwriter covering the matters customarily
covered in opinions requested in Underwritten Offerings and such other
matters as may be reasonably requested by any selling Holder or any
underwriter, and
(ii) use its reasonable best efforts to obtain "comfort"
letters and updates thereof from the independent certified public
accountants of the Company addressed to the each selling Holder and the
managing underwriter covering the matters customarily covered in "comfort"
letters in connection with Underwritten Offerings;
(i) upon reasonable notice and at reasonable times during normal
business hours, make available for inspection by a representative of each
selling Holder and any underwriter participating in any disposition of
Registrable Securities and any attorney or accountant retained by any selling
Holder or any underwriter, all financial and other records, pertinent corporate
documents and properties of the Company, and cause the officers, directors and
employees of the Company to supply all information reasonably requested by any
such representative, underwriter, attorney or accountant in connection with the
Registration Statement; and
(j) use its reasonable best efforts to comply with all applicable
rules and regulations of the SEC relating to such registration and make
generally available to its security holders earning statements satisfying the
provisions of Section 11(a) of the Securities Act, provided that the Company
will be deemed to have complied with this Section 4(j) if it has satisfied the
provisions of Rule 158 under the Securities Act (or any similar rule promulgated
under the Securities Act).
4.2 Information from Holders.
(a) The Company may require each selling Holder that has requested
inclusion of its Registrable Securities in any Registration Statement to furnish
to the Company such information regarding such Holder and its plan and method of
distribution of such Registrable Securities as the Company may, from time to
time, reasonably request in writing. The Company may refuse to proceed with the
registration of such Holder's Registrable Securities if such Holder unreasonably
fails to furnish such information within a reasonable time after receiving such
request.
(b) Each selling Holder will as expeditiously as possible (i)
notify the Company of the occurrence of any event that makes any statement made
in a Registration Statement or Prospectus regarding such selling Holder untrue
in any material respect or that requires the making of any changes in a
Registration Statement or Prospectus so that, in such regard, it will not
contain any untrue statement of a material fact or omit any material fact
11
required to be stated therein or necessary to make the statements not misleading
and (ii) provide the Company with such information as may be required to enable
the Company to prepare a supplement or post-effective amendment to any such
Registration Statement or a supplement to such Prospectus.
(c) With respect to any Registration Statement for an Underwritten
Offering, the inclusion of a Holder's Registrable Securities therein will be
conditioned upon such Holder's participation in such Underwritten Offering and
the execution and delivery by such Holder of an underwriting agreement in form,
scope and substance as is customary in Underwritten Offerings.
4.3 Suspension of Disposition.
(a) Each selling Holder will be deemed to have agreed that, upon
receipt of any notice from the Company of the occurrence of any event of the
kind described in Section 4.1(c)(ii), 4.1(c)(iii), 4.1(c)(iv), 4.1(c)(v) or
4.1(c)(vi), such Holder will discontinue disposition of Registrable Securities
covered by a Registration Statement or Prospectus until such Holder's receipt of
the copies of the supplemented or amended Prospectus contemplated by Section
4.1(g) or until it is advised in writing (the "Advice") by the Company that the
use of the applicable Prospectus may be resumed and have received copies of any
additional or supplemental filings that are incorporated or deemed to be
incorporated by reference in such Prospectus. In the event the Company shall
give any such notice, the period of time for which a Registration Statement must
remain effective as set forth in Section 2.5 will be extended by the number of
days during the time period from and including the date of the giving of such
notice to and including the date when each seller of Registrable Securities
covered by such Registration Statement has received (i) the copies of the
supplemented or amended Prospectus contemplated by Section 4.1(g) or (ii) the
Advice.
(b) Each selling Holder will be deemed to have agreed that, upon
receipt of any notice from the Company of the happening of an event specified in
Section 2.2(b), disclosure of which would be required in the Registration
Statement and the Board of Directors of the Company has determined in the good
faith exercise of its reasonable business judgment that disclosure would
adversely affect the Company, such selling Holder will discontinue disposition
of Registrable Securities covered by a Registration Statement or Prospectus
until the earlier to occur of the Holder receives (i) copies of a supplemented
or amended Prospectus describing the event giving rise to the aforementioned
suspension or (ii) (A) notice in writing from the Company that the use of the
applicable Prospectus may be resumed and (B) copies of any additional or
supplemental filings that are incorporated or deemed to be incorporated by
reference in such Prospectus; provided, however, that the periods during which
the offer and sale of Registrable Securities is discontinued shall not exceed
two 90-day periods during any 12-month period. In the event the Company gives
any such notice, the period of time for which a Registration Statement must
remain effective as set forth in Section 2.1 will be extended by the number of
days during the time period from and including the date of giving of such notice
to and including the date when each seller of Registrable Securities covered by
such Registration Statement receives (i) a supplemented or amended Prospectus
describing the event giving rise to the aforementioned suspension or (ii) notice
from the Company that use of the applicable Prospectus may resume.
12
4.4 Registration Expenses.
(a) Subject to Section 2.4, all fees and expenses incurred by the
Company in complying with Articles II, III and Section 4.1 ("Registration
Expenses") will be borne by the Company. These fees and expenses will include
without limitation (i) all registration and filing fees (including without
limitation fees and expenses (x) with respect to filings required to be made
with the National Association of Securities Dealers, Inc. and (y) of compliance
with securities or blue sky laws (including without limitation reasonable fees
and disbursements of counsel for the underwriters and selling Holders in
connection with blue sky qualifications of the Registrable Securities and
determination of the eligibility of the Registrable Securities for investment
under the laws of such jurisdictions as the managing underwriter or
underwriters, if any, or the selling Holders may designate)), (ii) printing
expenses (including without limitation the expenses of printing certificates for
securities in a form eligible for deposit with The Depository Trust Company and
of printing Prospectuses if the printing of Prospectuses is requested by the
selling Holders), (iii) fees and disbursements of counsel for the Company, (iv)
reasonable fees and disbursements (not to exceed $50,000) of one counsel for all
selling Holders collectively (which counsel will be selected by the Holders
holding a majority of the securities sought to be included in the Registration
Statement), (v) fees and disbursements of all independent certified public
accountants referred to in Section 4.1(h)(iii) (including the expenses of any
special audit and "comfort" letters required by or incident to such performance)
and (vi) fees and expenses of all other Persons retained by the Company. In
addition, the Company will pay its internal expenses (including without
limitation all salaries and expenses of its officers and employees performing
legal or accounting duties), the expense of any annual audit, and the fees and
expenses incurred in connection with the listing of the securities to be
registered on each securities exchange, if any, on which similar securities
issued by the Company are then listed or the quotation of such securities on
NYSE if similar securities issued by the Company are then quoted on NYSE.
(b) Notwithstanding anything contained herein to the contrary, (i)
all costs and fees of counsel (except as specifically set forth in Section
4.4(a)) and experts retained by the selling Holders and (ii) all underwriting
fees, discounts, selling commissions and stock transfer taxes applicable to the
sale of Registrable Securities will be borne by the Holder owning such
Registrable Securities.
(c) Notwithstanding anything contained herein to the contrary,
each selling Holder may have its own separate counsel in connection with the
registration of any of its Registrable Securities, which counsel may participate
therein to the full extent provided herein; provided, however, that all fees and
expenses of such separate counsel will be paid for by such selling Holder.
Article V. Indemnification
5.1 Indemnification by the Company. The Company will indemnify and hold
harmless, to the fullest extent permitted by law, each Holder owning Registrable
Securities registered pursuant to this Agreement, its officers, directors,
agents and employees, each Person who controls such Holder (within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act) and the
officers, directors, owners, agents and employees of any such
13
controlling Person, from and against all losses, claims, damages, liabilities,
costs (including without limitation reasonable attorneys' fees and
disbursements) and expenses (collectively, "Losses") arising out of or based
upon any untrue or alleged untrue statement of a material fact contained or
incorporated by reference in any Registration Statement, Prospectus or
preliminary prospectus, or arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as the
same are based solely upon information furnished in writing to the Company by or
on behalf of such Holder expressly for use therein; provided, however, that the
Company will not be liable to any Holder to the extent that any Losses arise out
of or are based upon an untrue statement or alleged untrue statement or omission
or alleged omission made in any preliminary prospectus if either (i) (A) such
Holder failed to send or deliver a copy of the Prospectus with or prior to the
delivery of written confirmation of the sale by such Holder of a Registrable
Security to the Person asserting the claim from which such Losses arise and (B)
the Prospectus would have corrected such untrue statement or alleged untrue
statement or such omission or alleged omission or (ii) the untrue statement or
alleged untrue statement or omission or alleged omission is corrected in an
amendment or supplement to the Prospectus previously furnished by or on behalf
of the Company, if the Holder was furnished with copies of the Prospectus as so
amended or supplemented and the Holder thereafter failed to deliver such
Prospectus as so amended or supplemented prior to or concurrently with the sale
of a Registrable Security to the Person asserting the claim from which such
Losses arise.
5.2 Indemnification by Holders. Each Holder (severally and not jointly)
will indemnify and hold harmless, to the fullest extent permitted by law, the
Company, its officers, directors, agents and employees, each Person who controls
the Company (within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act), and the directors, officers, owners, agents and
employees of any such controlling Person, from and against all Losses, as
incurred, arising out of or based upon any untrue or alleged untrue statement of
a material fact contained or incorporated by reference in any Registration
Statement, Prospectus or preliminary prospectus, or arising out of or based upon
any omission or alleged omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading, to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with information so furnished in writing by or on behalf of such
Holder to the Company expressly for use in such Registration Statement,
Prospectus or preliminary prospectus. In no event will the liability of any
Holder be greater in amount than the dollar amount of the net proceeds received
by such Holder upon the sale of the Registrable Securities giving rise to such
indemnification obligation.
5.3 Conduct of Indemnification Proceedings. If any Person becomes
entitled to indemnity hereunder (an "Indemnified Party"), such Indemnified Party
will give prompt notice to the party from which indemnity is sought (the
"Indemnifying Party") of any claim or of the commencement of any action or
proceeding with respect to which the Indemnified Party seeks indemnification or
contribution pursuant hereto; provided, however, that the failure to so notify
the Indemnifying Party will not relieve the Indemnifying Party from any
obligation or liability except to the extent that the Indemnifying Party has
been prejudiced materially by such failure. If such an action or proceeding is
brought against the Indemnified Party, the Indemnifying Party will be entitled
to participate therein and, to the extent it may elect by written notice
delivered to the Indemnified Party promptly after receiving the notice referred
to in the immediately
14
preceding sentence, to assume the defense thereof with counsel reasonably
satisfactory to the Indemnified Party. Notwithstanding the foregoing, the
Indemnified Party will have the right to employ its own counsel in any such
case, but the fees and expenses of that counsel will be at the expense of the
Indemnified Party unless (i) the employment of the counsel has been authorized
in writing by the Indemnifying Party, (ii) the Indemnifying Party has not
employed counsel (reasonably satisfactory to the Indemnified Party) to take
charge of such action or proceeding within a reasonable time after notice of
commencement thereof, or (iii) the Indemnified Party reasonably concludes, based
upon the opinion of counsel, that there may be defenses or actions available to
it which are different from or in addition to those available to the
Indemnifying Party which, if the Indemnifying Party and the Indemnified Party
were to be represented by the same counsel, could result in a conflict of
interest for such counsel or materially prejudice the prosecution of defenses or
actions available to the Indemnified Party. If any of the events specified in
clause (i), (ii) or (iii) of the immediately preceding sentence are applicable,
then the reasonable fees and expenses of separate counsel for the Indemnified
Party will be borne by the Indemnifying Party; provided, however, that in no
event will the Indemnifying Party be liable for the fees and expenses of more
than one separate firm for all Indemnified Parties. If, in any case, the
Indemnified Party employs separate counsel, the Indemnifying Party will not have
the right to direct the defense of the action or proceeding on behalf of the
Indemnified Party. All fees and expenses required to be paid to the Indemnified
Party pursuant to this Article V will be paid periodically during the course of
the investigation or defense, as and when reasonably itemized bills therefor are
delivered to the Indemnifying Party in respect of any particular Loss that is
incurred. Notwithstanding anything contained in this Section 5.3 to the
contrary, an Indemnifying Party will not be liable for the settlement of any
action or proceeding effected without its prior written consent. The
Indemnifying Party will not, without the consent of the Indemnified Party (which
consent will not be unreasonably withheld), consent to entry of any judgment or
enter into any settlement or otherwise seek to terminate any action or
proceeding in which any Indemnified Party is or could be a party and as to which
indemnification or contribution could be sought by such Indemnified Party under
this Article V, unless such judgment, settlement or other termination provides
solely for the payment of money and includes as an unconditional term thereof
the giving by the claimant or plaintiff to such Indemnified Party of a release,
in form and substance reasonably satisfactory to the Indemnified Party, from all
liability in respect of such claim or litigation for which such Indemnified
Party would be entitled to indemnification hereunder.
5.4 Contribution, etc.
(a) If the indemnification provided for in this Article V is
unavailable to an Indemnified Party under Section 5.1 or 5.2 in respect of any
Losses or is insufficient to hold the Indemnified Party harmless, then each
applicable Indemnifying Party (severally and not jointly), in lieu of
indemnifying the Indemnified Party, will contribute to the amount paid or
payable by the Indemnified Party as a result of the Losses, in such proportion
as is appropriate to reflect the relative fault of the Indemnifying Party or
Indemnifying Parties, on the one hand, and the Indemnified Party, on the other
hand, in connection with the actions, statements or omissions that resulted in
the Losses as well as any other relevant equitable considerations. The relative
fault of the Indemnifying Party or Indemnifying Parties, on the one hand, and
the Indemnified Party, on the other hand, will be determined by reference to,
among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission
15
or alleged omission of a material fact, has been taken or made by, or related to
information supplied by, the Indemnifying Party or Indemnifying Parties or the
Indemnified Party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action, statement or
omission. The amount paid or payable by a party as a result of any Losses will
be deemed to include any legal or other fees or expenses incurred by such party
in connection with any action or proceeding.
(b) The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 5.4 were determined by pro
rata allocation or by any other method of allocation that does not take into
account the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding anything contained in this Section 5.4 to the
contrary, an Indemnifying Party that is a selling Holder will not be required to
contribute any amount in excess of the amount by which the total price at which
the Registrable Securities were sold by the selling Holder to the public exceeds
the amount of any damages which such selling Holder has, in the aggregate,
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
will be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
Article VI. Rule 144
Upon consummation of a Public Offering, the Company will file all reports
required to be filed by it under the Securities Act and the Exchange Act and
will cooperate with any Holder to the extent required from time to time to
enable such Holder to sell its Registrable Securities without registration under
the Securities Act within the limitations of the exemptions provided by Rule 144
(or any successor provision). Upon the request of any Holder, the Company will
deliver to such Holder a written statement as to whether it has complied with
such filing requirements. Notwithstanding the foregoing, nothing in this Article
VI will require the Company to register any securities, or file any reports,
under the Exchange Act if such registration or filing is not required under the
Exchange Act.
Article VII. Participation in Underwritten Offerings
Notwithstanding anything contained herein to the contrary, no Person may
participate in any Underwritten Offering pursuant to a registration hereunder
unless that Person (a) agrees to sell its securities on the basis provided in
any underwriting arrangements approved by the Persons entitled hereunder to
approve such arrangements and (b) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements.
Article VIII. Miscellaneous
8.1 Notices. All notices, requests, claims, demands and other
communications hereunder will be in writing and will be given or made by
delivery in person, by overnight courier, by facsimile transmission, by
electronic transmission or by registered or certified mail (postage prepaid,
return receipt requested) to the respective parties at the following addresses
(or at such other address for a party specified in a notice given in accordance
with this Section 8.1):
16
(a) If to the Company:
International Coal Group, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile: 000-000-0000
Attention: Chief Financial Officer
with a copy to:
Xxxxx Day
000 X. 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: 212-755-7306
Attention: Xxxxx X. Xxxxxxxx
(b) If to a Holder, to such Holder's address on file with the
Company's transfer agent.
All such notices and communications will be deemed to have been delivered or
given upon receipt, if delivered personally, by electronic transmission or by
overnight courier; when receipt is acknowledged, if sent by facsimile
transmission and three Business Days after being deposited in the mail, if
mailed.
8.2 Confidentiality. Each Holder will, and will cause its officers,
directors, employees, legal counsel, accountants, financial advisors and other
representatives to, hold in confidence any material nonpublic information
received by them pursuant to this Agreement, including without limitation any
material nonpublic information included in any Registration Statement or
Prospectus proposed to be filed with the SEC or provided pursuant to Section
4.1(i). This Section 8.2 shall not apply to any information which (a) is or
becomes generally available to the public, (b) was already in the Holder's
possession from a non-confidential source prior to its disclosure by the
Company, or (c) is or becomes available to the Holder on a non-confidential
basis from a source other than the Company, provided that such source is not
known by the Holder to be bound by confidentiality obligations.
8.3 Assignment. None of the parties to this Agreement may assign or
delegate any of its rights or obligations under this Agreement without the prior
written consent of each of the other parties hereto. Notwithstanding the
foregoing, any Affiliate of a Holder that becomes a record owner of WLR Shares
or Investor Shares, as the case may be, shall become a Holder hereunder upon its
delivery to the Company of its executed joinder hereto.
8.4 No Third-Party Beneficiaries. Except as expressly set forth herein,
this Agreement will be binding upon and inure solely to the benefit of the
parties hereto and their respective successors and permitted assigns and nothing
herein, express or implied, is intended to or will confer upon any other Person
any legal or equitable right, benefit or remedy of any nature whatsoever under
or by reason of this Agreement.
17
8.5 Entire Agreement. This Agreement constitutes the entire agreement of
the parties hereto with respect to the subject matter hereof and supersedes all
prior agreements and undertakings, both written and oral, among the parties with
respect to the subject matter hereof.
8.6 Amendment and Waiver. This Agreement may not be amended or modified
or any provision hereof waived except by an instrument in writing signed by all
of the parties to this Agreement.
8.7 Counterparts. This Agreement may be executed by facsimile signature
and in any number of counterparts, each such counterpart to be deemed an
original and all such counterparts, taken together, to constitute one
instrument.
8.8 Severability. If any term or other provision of this Agreement is
invalid, illegal or unenforceable under any law or public policy, all other
terms and provisions of this Agreement will nevertheless remain in full force
and effect. Upon a determination that any term or other provision is invalid,
illegal or unenforceable, the parties hereto will endeavor in good faith to
replace the invalid, illegal or unenforceable provisions with valid, legal and
enforceable provisions the effect of which comes as close as possible to that of
the invalid, illegal or unenforceable provisions.
8.9 Governing Law. This Agreement will be governed by, and construed in
accordance with, the laws of the State of New York, without giving effect to the
principles of conflict of laws thereof.
8.10 Specific Performance. The parties hereto agree that irreparable
damage would occur in the event any provision of this Agreement was not
performed in accordance with the terms hereof and that the parties will be
entitled to specify performance of the terms hereof, in addition to any other
remedy at law or equity.
8.11 Further Assurances. The parties hereto will do such further acts and
things necessary to ensure that the terms of this Agreement are carried out and
observed.
8.12 Consummation of Mergers. Upon the consummation of the mergers as
contemplated by the business combination agreements, the provisions hereof will
apply to Holdco, mutatis mutandis, as they originally applied to the Company and
all references to "Common Stock" herein shall thereinafter refer to the Common
Stock of Holdco, par value $0.01 per share, issued to the Holders in the
mergers.
18
IN WITNESS WHEREOF, each of the parties has executed this Agreement as of
the date first written above.
INTERNATIONAL COAL GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President, Treasurer
and Secretary
ICG HOLDCO, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President, Treasurer
and Secretary
HOLDERS:
WLR RECOVERY FUND II, L.P.
By: /s/ Xxxxxx X. Xxxx
------------------------------------
Name: Xxxxxx X. Xxxx
Title:
Shares: 10,804,172
CONTRARIAN CAPITAL MANAGEMENT LLC
By: /s/ Xxxx Xxxxx
-----------------------------------
Name: Xxxx Xxxxx
Title:
Shares: 15,402,865
GREENLIGHT CAPITAL QUALIFIED, LP
By: Greenlight Capital, LLC, its
general partner
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxx
Title: COO
Shares: 4,768,361
XXXXX TRADING
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: General Counsel
Shares: 7,670,350
XXXXXXX INTERNATIONAL COAL
HOLDINGS INC.
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: General Counsel
Shares: 7,670,349
VARDE COAL INC.
By: /s/ Xxxxxx X. Page
---------------------------------------------
Name: Xxxxxx X. Page
Title: Vice President
15,708,755 Aggregate Shares Issued
9,273,755 Shares of Record on 5/13/05
8,573,755 Shares not under agreement to transfer
Schedule A
