FORM OF REGISTRATION RIGHTS AGREEMENT
Exhibit
10.1
REGISTRATION
RIGHTS AGREEMENT, dated as of [__________], 2008 (this “Agreement”), by and among
Patriot Coal Corporation, a Delaware corporation (the “Company”), ArcLight Energy
Partners Fund I, L.P., a Delaware limited partnership, and ArcLight Energy
Partners Fund II, L.P., a Delaware limited partnership.
W
I T N E S S E T H:
WHEREAS,
Magnum Coal Company, a Delaware corporation (“Target”), the Company, Colt
Merger Corporation, a Delaware corporation and wholly-owned subsidiary of the
Company (“Merger
Subsidiary”) and the Stockholder Representative (as defined below),
entered into an Agreement and Plan of Merger (the “Merger Agreement”) dated as of
[ ], 2008, pursuant to which, among other
things, Merger Subsidiary is being merged with and into Target;
WHEREAS,
the Company and the Shareholders desire to make certain agreements relating to
the registration of Company Securities (as defined below) and certain other
matters.
NOW,
THEREFORE, in consideration of the premises and of the agreements and covenants
set forth herein and in the Merger Agreement, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
ARTICLE
1
DEFINITIONS
Section
1.01.
Definitions. As used in this Agreement, the following terms
shall have the following meanings:
“Affiliate” means, with respect
to any Person, any other Person directly or indirectly controlling, controlled
by, or under common control with such Person, and, for the purposes hereof, the
term “control”
means the power to direct the management and policies of such Person (directly
or indirectly), whether through ownership of securities, by contract or
otherwise (and the terms controlling
and controlled
have the meanings correlative to the foregoing).
“Business Day” means any day,
except a Saturday, Sunday or legal holiday on which banking institutions in The
City of New York are authorized or obligated by law or executive order to
close.
“Common Stock” means the common
stock, par value $0.01 per share, of the Company and any stock into which such
Common Stock may thereafter be converted or exchanged in connection with any
exchange, conversion, stock split, stock dividend, distribution,
recapitalization or similar event of the Company.
“Company Securities” means the
Common Stock (i) issued to Shareholders in connection with the Merger and (ii)
issued in connection with any exchange, conversion, stock split, stock dividend,
distribution, recapitalization or similar event of the Company, with respect to
or in exchange or replacement for, the shares of Common Stock referred to in
clause (i).
“Damages” shall have the
meaning set forth in Section 2.06.
“Delay Notice” shall have the
meaning set forth in Section 2.01(f).
“Demand Registration” shall have the
meaning set forth in Section 2.01(a).
“Exchange Act” means the
Securities Exchange Act of 1934.
“FINRA” means the Financial
Industry Regulatory Authority.
“Governmental Authority” means
any transnational, or domestic or foreign, federal,
state or local governmental authority, department, court, agency or official,
including any political subdivision thereof.
“Indemnified Party” shall have
the meaning set forth in Section 2.08.
“Indemnifying Party” shall have
the meaning set forth in Section 2.08.
“Inspectors” shall have the
meaning set forth in Section 2.05(g).
“Lock-Up Period” shall have the
meaning set forth in Section 2.04.
“Maximum Offering Size” shall
have the meaning set forth in Section 2.01(e).
“Majority Shareholders” shall
mean the holders of a majority of the outstanding Registrable Securities held by
the Shareholders that are party to this Agreement.
“Merger” means the merger of
Merger Subsidiary with and into Target.
“Person” shall mean an
individual, partnership, corporation, business trust, joint stock company,
limited liability company, unincorporated association, joint venture or other
entity of whatever nature.
“Piggyback Registration” shall
have the meaning set forth in Section 2.02(a).
“Public Offering” means an
underwritten public offering of Registrable Securities of the Company pursuant
to an effective registration statement under the Securities Act, other than
pursuant to a registration statement on Form X-0, Xxxx X-0 or any similar or
successor form.
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“Records” shall have the meaning
set forth in Section 2.05(g).
“Registering Shareholders”
shall have the meaning set forth in Section 2.01(a).
“Registrable Securities” means,
at any time, any Company Securities until (i) a registration statement covering
such securities has been declared effective by the SEC and such securities have
been disposed of pursuant to such effective registration statement, (ii) such
securities are sold under circumstances in which all of the applicable
conditions of Rule 144 (or any similar provisions then in force) under the
Securities Act are met, (iii) such securities can be sold under Rule 144 without
limitation, (iv) such securities are otherwise Transferred and such securities
may be resold without subsequent registration under the Securities Act, or (v)
such securities shall have ceased to be outstanding.
“Registration Documents” shall
have the meaning set forth in Section 2.06.
“Registration Expenses” means
any and all expenses incident to the performance of or compliance with any
registration or marketing of securities, including all (i) applicable
registration, filing fees, applicable SEC fees, national securities exchange or
inter-dealer quotation system fees, and all other fees and expenses payable in
connection with the listing of the Registrable Securities, (ii) fees and
expenses of compliance with any securities or “blue sky” laws (including
reasonable fees and disbursements of counsel to the underwriters in connection
with “blue sky” qualifications of the securities registered and determination of
their eligibility for investment under the laws of the various jurisdictions),
(iii) expenses in connection with the preparation, printing, mailing and
delivery of any registration statements, prospectuses and other
documents in connection therewith and any amendments or supplements thereto
(including without limitation word processing, duplicating, telephone and
facsimile expenses, and messenger and delivery expenses), (iv) internal expenses
of the Company (including all salaries and expenses of its officers and
employees performing legal or accounting duties), (v) reasonable fees and
disbursements of counsel for the Company and customary fees and expenses for
independent certified public accountants retained by the Company (including the
expenses relating to any comfort letters or costs associated with the delivery
by independent certified public accountants of any “cold comfort” letters
requested pursuant to Section 2.05(h)), (vi) reasonable fees and expenses of any
special experts retained by the Company in connection with such registration,
(vii) all reasonable fees and expenses of one counsel (separate from counsel to
the Company) for all of the Shareholders participating in the offering selected
by the Majority Shareholders, (viii) fees and expenses in connection with any
review by the FINRA of the underwriting arrangements or other terms of the
offering, and all fees and expenses of any qualified independent underwriter,
including the fees and expenses of any counsel thereto, (ix) transfer agents’
and registrars’ fees and expenses and the fees and expenses of any other agent
appointed in connection with such offering, (x) expenses relating to any analyst
or investor presentations or any “road shows” undertaken in connection with
the registration, marketing or selling of the Registrable Securities and (xi)
all out-of pocket costs and
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expenses
incurred by the Company or its appropriate officers in connection with their
compliance with Section 2.05(m); provided that Registration
Expenses shall not include any underwriting fees, discounts and commissions
attributable to the sale of Registrable Securities. Except as set forth in
clause (viii) above, Registration Expenses shall not include any out-of-pocket
expenses of the Shareholders (or the agents who manage their
accounts).
“Registration Request” shall
have the meaning set forth in Section 2.01.
“Requesting Shareholder” shall
have the meaning set forth in Section 2.01.
“SEC” means the Securities and
Exchange Commission.
“Securities Act” means the
Securities Act of 1933.
“Shareholder” means at any
time, any Person (other than the Company) who shall then be a party to or bound
by this Agreement, so long as such Person shall “beneficially own” (as such term
is defined in Rule 13d-3 of the Exchange Act) any Company
Securities.
“Stockholder Representative”
shall have the meaning assigned to such term in the Merger
Agreement.
“Subsidiary” means any
corporation or other organization, whether incorporated or unincorporated, of
which (i) at least fifty percent (50%) of the securities (or other interests
having by their terms ordinary voting power to elect a majority of the board of
directors or others performing similar functions with respect to such
corporation or other organization) is directly or indirectly owned or controlled
by the relevant Person or
(ii) the
relevant Person (or any other Subsidiary of the relevant Person) is a general
partner.
“Suspension Notice” shall have
the meaning set forth in Section 2.01(f).
“Transfer” means, with respect
to any Company Securities, (i) when used as a verb, to sell, assign, dispose of,
foreclose on a pledge of, or otherwise transfer such Company Securities or any
economic participation or interest therein, whether directly or indirectly, or
agree or commit to do any of the foregoing and (ii) when used as a noun, a
direct or indirect sale, assignment, disposition, foreclosure on a pledge or
other transfer of such Company Securities or any participation or interest
therein or any agreement or commitment to do any of the foregoing.
“Voting Agreement” means the
Voting and Standstill Agreement dated as of March [ ], 2008 by and among the
Company, the Stockholder Representative and the other stockholders parties
thereto.
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Section
1.02. Other Definitional and
Interpretative Provisions. The words “hereof”, “herein” and
“hereunder” and words of like import used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement. Any singular term in this Agreement shall be deemed to
include the plural, and any plural term the singular. Whenever the
words “include”, “includes” or “including” are used in this Agreement, they
shall be deemed to be followed by the words “without limitation”, whether or not
they are in fact followed by those words or words of like
import. “Writing”, “written” and comparable terms refer to printing,
typing and other means of reproducing words (including electronic media) in a
visible form. References to any agreement or contract are to that
agreement or contract as amended, modified or supplemented from time to time in
accordance with the terms hereof and thereof; provided that with respect to
any agreement or contract listed on any schedules hereto, all such amendments,
modifications or supplements must also be listed in the appropriate schedule.
References to any Person include the successors and permitted assigns of that
Person. References from or through any date mean, unless otherwise specified,
from and including or through and including, respectively. References
to any particular statute or law shall be to such statute or law as amended from
time to time, and to the rules and regulations promulgated thereunder and
enforceable interpretations thereof.
ARTICLE 2
REGISTRATION RIGHTS
Section
2.01. Demand
Registration. (a) Subject to Section 2.03, if the Company receives a
request (a “Registration
Request”) from Majority Shareholders requiring that the Company effect
the registration under the Securities Act of all or any portion of the
Registrable Securities (the Shareholders whose Registrable Securities are
requested to be so registered, the “Requesting Shareholders”), and
specifying the intended method of disposition thereof, then the Company shall
promptly give notice of such requested registration (each such registration
shall be referred to herein as a “Demand Registration”) but no
later than 20 Business Days after receipt of the Registration Request to the
other Shareholders; provided
that no Registrable Securities may be sold and no Registration Request
may be made prior to the Initial Lock-up Date (as defined in the Voting
Agreement) and no registration statement shall be required to be filed pursuant
to a Demand Registration prior to November 1, 2008. Thereafter, the
Company shall use all reasonable efforts to effect, as expeditiously as
possible, the registration under the Securities Act and to cause such
registration statement to be declared effective by the SEC, of:
(i) all
Registrable Securities for which the Majority Shareholders have requested
registration under this Section 2.01; and
(ii) all
other Registrable Securities of the same class as those requested to be
registered by the Majority Shareholders that any Shareholders with rights to
request registration under Section 2.02 (all such Shareholders
requesting
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registration,
together with the Requesting Shareholders, and any Shareholders participating
in a Piggyback Registration pursuant to Section 2.02, the “Registering Shareholders”) have requested the
Company to register by request received
by the Company within 10 Business Days after such Shareholders receive
the Company’s notice of the Demand Registration,
all to the
extent necessary to permit the disposition (in accordance with the intended
methods thereof as aforesaid) of the Registrable Securities so to be registered,
subject to the restrictions set forth in Sections 2.01(e) and 2.02(b); provided that, subject to
Section 2.01(d), the Company shall not be obligated to effect more than three
Demand Registrations and provided further that the
Company shall not be obligated to effect a Demand Registration unless the
aggregate proceeds expected to be received from the sale of the Registrable
Securities requested to be included in such Demand Registration equals or
exceeds $50,000,000. The Company shall use all reasonable efforts to
effect the registration of Registrable Securities for distribution in accordance
with the intended method of distribution set forth in a written request
delivered by the Majority Shareholders.
(b)
Promptly after the expiration of the 10-Business Day period referred to in
Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the
identities of the other Registering Shareholders and the number of shares of
Registrable Securities requested to be included therein. At any time
prior to the effective date of the registration statement relating to such
registration, the Majority Shareholders may revoke such request, without
liability to any of the other Registering Shareholders, by providing a notice to
the Company revoking such request; any Shareholder shall have the right to
withdraw its request for inclusion of Registrable Securities in any registration
statement pursuant to Section 2.01(a) at any time prior to the effective date of
such registration statement by giving written notice to the Company of its
request to withdraw. A request, so revoked by the Majority
Shareholder, shall be considered to be a Demand Registration unless (i) such
revocation arose out of the fault of the Company (in which case the Company
shall be obligated to pay all Registration Expenses in connection with such
revoked request), (ii) there occurs an event or series of related events
that has a material adverse effect on the business, assets condition (financial
or otherwise) or results of operations of the Company and its Subsidiaries taken
as a whole or (iii) the Requesting Shareholders reimburse the Company for all
Registration Expenses of such revoked request incurred through the date of such
revocation; provided
that the Majority Shareholders may not utilize this clause (iii) more than
once.
(c) The
Company shall be liable for and pay all Registration Expenses in connection with
any Demand Registration, regardless of whether such Registration is effected,
except as set forth in Section 2.01(b).
(d) A
Demand Registration shall not be deemed to have occurred:
(i) unless
the registration statement relating thereto (A) has become effective under the
Securities Act and (B) has remained effective for a period of at
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least 180
days in aggregate (or such shorter period in which all Registrable Securities of
the Registering Shareholders included in such registration have actually been
sold thereunder); provided that such
registration statement shall not be considered a Demand Registration if, after
such registration statement becomes effective, (1) such registration statement
is interfered with by any stop order, injunction or other order or requirement
of any Governmental Authority and (2) less than 75% of the Registrable
Securities included in such registration statement have been sold
thereunder;
(ii) if
the Maximum Offering Size is reduced in accordance with Section 2.01(e) such
that less than 662/3% of the Registrable Securities
of the Requesting Shareholders sought to be included in such registration are
included; or
(iii) As
permitted pursuant to Section 2.01(b).
(e) If a
Demand Registration involves a Public Offering and the managing underwriter
advises the Company and the Requesting Shareholders in writing that, in its
view, the number of shares of Registrable Securities requested to be included in
such registration (including any securities that the Company proposes to be
included that are not Registrable Securities) exceeds the largest number of
shares that can be sold without having an adverse effect on such offering,
including the price at which such shares can be sold (the “Maximum Offering Size”), the Company
shall include in such registration, in the priority listed below, up to the
Maximum Offering Size:
(i) first,
all Registrable Securities requested to be registered by the Registering
Shareholders (allocated, if necessary for the offering not to exceed the Maximum
Offering Size, pro rata among such entities on the basis of the relative number
of Registrable Securities beneficially owned by each);
(ii) second, any
securities proposed to be registered by the Company; and
(iii)
third, any securities
proposed to be registered for the account of any other
Persons, with such priorities among them as the Company shall
determine.
(f) Upon notice to each Requesting
Shareholder or Registering Shareholder, as the case may be, the Company may
postpone the filing of any registration statement required to be prepared and
filed by it pursuant to this Section 2.01 or suspend efforts to cause such
registration statement to be declared effective (in each case, a “Delay Notice”) or suspend the
disposition of Registrable Securities pursuant to an effective shelf
registration statement and the related prospectus (the “Suspension Notice”) in each
case pursuant to this Section 2.01 on no more than two occasions during any
period of twelve consecutive months for a reasonable time specified in the
notice but not exceeding 90 days in aggregate, if (i) an investment banking firm
of recognized national standing shall
7
advise the
Company
and the Requesting Shareholders in writing that effecting the registration would
materially and adversely affect an offering of securities of such Company the
preparation of which had then been commenced or (ii) the Company reasonably
believes that such registration and offering would require premature disclosure
of any material financing, material corporate reorganization or other material
transaction or other material matter involving the Company. Upon
receipt of any Delay Notice or Suspension Notice, as the case may be, holders of
Registrable Securities selling securities pursuant to an effective registration
statement shall forthwith discontinue use of the prospectus contained in such
registration statement and, if so directed by the Company, each such holder of
Registrable Securities shall deliver to the Company all copies, other than
permanent file copies then in such holder’s possession, of the prospectus then
covering such Registrable Securities current at the time of receipt of such
notice, and, in the event no registration statement has yet been filed, all
drafts of the prospectus covering such Registrable Securities.
(g) Except
in the case of a Public Offering, Registering Shareholders who intend to sell
Registrable Securities pursuant to an effective registration statement must
provide the Company two Business Days' notice prior to effecting such
sale.
Section
2.02. Piggyback
Registration. (a) If the Company proposes to register any Common Stock
under the Securities Act following the Initial Lock-up Date (as defined in the
Voting Agreement) (other than a registration on Form X-0, X-0 or any successor
forms, relating to shares of Common Stock issuable upon exercise of employee
stock options or in connection with any employee benefit or similar plan of the
Company or in connection with a direct or indirect acquisition by the Company of
another Person), whether or not for sale for its own account, the Company shall
at each such time give prompt notice at least 20 Business Days prior to the
anticipated filing date of the registration statement relating to such
registration to each Shareholder, which notice shall set forth such
Shareholder’s rights under this Section 2.02 and shall offer such Shareholder
the opportunity to include in such registration statement the number of
Registrable Securities of the same class or series as those proposed to be
registered as each such Shareholder may request (a “Piggyback Registration”),
subject to the provisions of Section 2.02(b). Upon the request of any
such Shareholder made within 10 Business Days after the receipt of notice from
the Company (which request shall specify the number of Registrable Securities
intended to be registered by such Shareholder), the Company shall use all
reasonable efforts to effect the registration under the Securities Act of all
Registrable Securities that the Company has been so requested to register by all
such Shareholders, to the extent required to permit the disposition of the
Registrable Securities so to be registered; provided that (i) if such
registration involves a Public Offering, all such Registering Shareholders must
sell their Registrable Securities to the underwriters selected as provided in
Section 2.05(f)(ii) on the same terms and conditions as apply to the Company (it
being understood, however, that no underwriting agreement shall require a
Shareholder to (x) provide representations and warranties other than in respect
of the Shareholder’s organizational matters and its authority to enter into such
underwriting agreements (and related agreements such as a custody agreement and
a
8
power of
attorney), title to the shares of Company Securities to be sold by such
Shareholder and information provided in writing by such Shareholder for use in
the registration statement or (y) provide indemnification or contribution to any
Person other than on substantially the terms set forth in Section 2.07 below),
and (ii) if, at any time after giving notice of its intention to register any
Company Securities pursuant to this Section 2.02(a) 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 such securities, the
Company shall promptly give written notice to all Registering Shareholders after
its decision not to register such securities and, thereupon, shall be relieved
of its obligation to register any Registrable Securities in connection with such
registration. No registration effected under this Section 2.02 shall relieve the
Company of its obligations to effect a Demand Registration to the extent
required by Section 2.01. The Company shall pay all Registration
Expenses in connection with each Piggyback Registration (whether or not the
registration has been effected).
(b) If a
Piggyback Registration involves a Public Offering (other than any Demand
Registration, in which case the provisions with respect to priority of inclusion
in such offering set forth in Section 2.01(e) shall apply) and the managing
underwriter advises the Company in writing that, in its view, the number of
shares of Common Stock that the Company, the Registering Shareholders and other
Persons intend to include in such registration exceeds the Maximum Offering
Size, the Company shall include in such registration, in the following priority,
up to the Maximum Offering Size:
(i) first,
any securities proposed to be registered for the account of any Persons pursuant
to a right granted to such Persons by the Company to demand such registration as
would not cause the offering to exceed the Maximum Offering Size;
(ii)
second, so much of the securities proposed to be registered for the account of
the Company as would not cause the offering to exceed the Maximum Offering
Size;
(iii)
third, all Registrable Securities or securities proposed to be registered for
the account of any other Persons that have rights substantially similar to the
Piggyback Registration rights granted herein requested to be included in such
registration by any Registering Shareholders or such other Persons (allocated,
if necessary for the offering not to exceed the Maximum Offering Size, pro rata
among such Registering Shareholders and such other Persons on the basis of the
relative number of shares of Registrable Securities or securities so requested
to be included in such registration by each such Registering Shareholder or
Person); and
(iv)
fourth, any securities proposed to be registered for the account of any other
Persons with such priorities among them as the Company shall determine.
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Section
2.03. Other Limits on Demand
Registrations. In no event shall the Company be required to effect a
Demand Registration within a period of 9 consecutive months after the effective
date of any other registration statement relating to any Demand
Registration.
Section
2.04. Lock-Up
Agreements. If any registration of shares of Common Stock or securities
convertible or otherwise linked to Common Stock of the Company shall be effected
in connection with an underwritten public offering, if requested by the lead
managing underwriter in connection with such underwritten public offering,
neither the Company nor any Shareholder shall directly or indirectly Transfer
(including for this Section 2.04, (A) if the underwriter or underwriters in such
public offering require pledges, encumbrances and hypothecations to be included
within the scope of the “lockup” arrangements in connection with such public
offering, any pledge, encumbrance and hypothecation, and (B) any short sale or
the entry into of any other hedging or other derivative transaction that has the
effect of materially changing the economic benefits and risks of ownership of
any Company Securities, but excluding any Transfer to an Affiliate so long as no
filing under Section 16(a) of the Exchange Act, reporting a change in beneficial
ownership of shares of Common Stock, shall be required or shall be voluntarily
made during the Lock-Up Period) (except as part of such underwritten public
offering) any Company Securities during the period beginning 5 days prior to the
effective date of the applicable registration statement until the earlier of (i)
such time as the Company and the lead managing underwriter shall agree and (ii)
90 days after the effective date (such period, the “Lock-Up Period” for the
applicable registration statement); provided, however, that the foregoing
restrictions shall not prevent any delivery of Escrow Shares (as defined in the
Merger Agreement) to the Company or any other Indemnified Party (as defined in
the Merger Agreement) pursuant to the indemnification obligations set forth in
Article 11 of the Merger Agreement; provided, further, that the
restrictions on Transfer contained in this Section 2.04 shall only apply in the
event that each officer and director of the Company also agrees to such
restrictions and remains bound thereby. Each of the Company and the
Shareholders agrees that it shall, upon written request, deliver to the
underwriter or underwriters of any offering to which this Section 2.04 is
applicable a customary agreement reflecting its agreement set forth in this
Section 2.04. Each Shareholder agrees that if while this Section 2.04
is in effect, it Transfers any Company Securities to an Affiliate, such Transfer
shall be conditioned upon such Affiliate agreeing in writing to be bound by this
Section 2.04, provided
that if such Affiliate ceases to be an Affiliate of the applicable Shareholder,
such Affiliate shall Transfer such Company Securities back to the applicable
Shareholder prior to ceasing to be an Affiliate of such
Shareholder.
Section
2.05. Registration
Procedures. Whenever Shareholders request that any Registrable Securities
be registered pursuant to Section 2.01 or 2.02, subject to the provisions of
such Sections, the Company shall use all reasonable efforts to effect the
registration and the sale of such Registrable Securities in accordance with the
intended method of disposition thereof as quickly as practicable, and, in
connection with any such request:
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(a) The
Company shall as expeditiously as possible prepare and file with the SEC a
registration statement on any form for which the Company then qualifies or that
counsel for the Company shall deem appropriate and which form shall be available
for the sale of the Registrable Securities to be registered thereunder in
accordance with the intended method of distribution thereof, and prepare and
file with the SEC such amendments and supplements to such registration statement
and the prospectus used in connection with such registration statement as may be
necessary to comply with the provisions of the Securities Act with respect to
the disposition of all securities covered by such registration statement, and
use all reasonable efforts to cause such filed registration statement to become
and remain effective for a period of not less than 180 days (or such shorter
period in which all of the Registrable Securities of the Registering
Shareholders included in such registration statement shall have actually been
sold thereunder); provided, however, that the Company may
use Form S-3 (or any substitute form that may be adopted by the SEC) if the
Company would qualify to use such form within 30 days of a request pursuant to
Section 2.01 or 2.02 and the Company shall not be required to file such
registration statement until it is so qualified.
(b) Prior
to filing a registration statement or prospectus or any amendment or supplement
thereto, the Company shall, if requested, furnish to each Registering
Shareholder and each underwriter, if any, of the Registrable Securities covered
by such registration statement copies of such registration statement as proposed
to be filed, and thereafter the Company shall furnish to such Registering
Shareholder and underwriter, if any, such number of copies of such registration
statement, each amendment and supplement thereto (in each case including all
exhibits thereto and documents incorporated by reference therein), the
prospectus included in such registration statement (including each preliminary
prospectus and any summary prospectus) and any other prospectus filed under Rule
424 or Rule 430A under the Securities Act and such other documents, in all cases
including drafts thereof, as such Registering Shareholder or underwriter may
reasonably request in order to facilitate the disposition of the Registrable
Securities owned by such Registering Shareholder. Each Registering
Shareholder shall have the right to request that the Company modify any
information contained in such registration statement, amendment and supplement
thereto pertaining to such Registering Shareholder and the Company shall use all
reasonable efforts to comply with such request; provided, however, that the
Company shall not have any obligation so to modify any information if the
Company reasonably expects that so doing would cause the prospectus to 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.
(c) After
the filing of the registration statement, the Company shall (i) cause the
related prospectus to be supplemented by any required prospectus supplement,
and, as so supplemented, to be filed pursuant to Rule 424 under the Securities
Act, (ii) comply with the provisions of the Securities Act with respect to the
disposition of all Registrable Securities covered by such registration statement
during the applicable period in accordance with the intended methods of
disposition by the Registering Shareholders
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thereof
set forth in such registration statement or supplement to such prospectus and
(iii) promptly notify each Registering Shareholder holding
Registrable Securities covered by such registration statement of any stop order
issued or threatened by the SEC or any state securities commission and take all
reasonable actions required to prevent the entry of such stop order or to remove
it if entered.
(d) The
Company shall use all reasonable efforts to (i) register or qualify the
Registrable Securities covered by such registration statement under such other
securities or “blue sky” laws of such jurisdictions in the United States as any
Registering Shareholder holding such Registrable Securities reasonably (in light
of such Shareholder’s intended plan of distribution) requests and (ii) cause
such Registrable Securities to be registered with or approved by such other
governmental agencies or authorities as may be necessary by virtue of the
business and operations of the Company and do any and all other acts and things
that may be reasonably necessary or advisable to enable such Shareholder to
consummate the disposition of the Registrable Securities owned by such
Shareholder; provided
that the Company shall not be required to (A) qualify generally to do business
in any jurisdiction where it would not otherwise be required to qualify but for
this Section 2.05(d), (B) subject itself to taxation in any such jurisdiction or
(C) consent to general service of process in any such jurisdiction.
(e) The
Company shall immediately notify each Registering Shareholder holding such
Registrable Securities covered by such registration statement, at any time when
a prospectus relating thereto is required to be delivered under the Securities
Act, of the occurrence of an event requiring the preparation of a supplement or
amendment to such prospectus so that, as thereafter delivered to the purchasers
of such Registrable Securities, such prospectus will not contain an untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading and
promptly prepare and make available to each Registering Shareholder and file
with the SEC any such supplement or amendment.
(f)
(i) The Majority Shareholders shall, subject to the Company’s consent which
shall not be unreasonably withheld, select an underwriter or underwriters in
connection with any Public Offering resulting from the exercise by such Majority
Shareholders of a Demand Registration, and (ii) the Company shall select an
underwriter or underwriters in connection with any other Public
Offering. In connection with any Public Offering, the Company shall
enter into customary agreements (including an underwriting agreement in
customary form) and take all other customary actions as are reasonably required
in order to expedite or facilitate the disposition of such Registrable
Securities in any such Public Offering, including the engagement of a “qualified
independent underwriter” in connection with the qualification of the
underwriting arrangements with FINRA.
(g) Upon
execution of confidentiality agreements in form and substance reasonably
satisfactory to the Company, the Company shall make available for inspection by
any Registering Shareholder and any underwriter participating in any
disposition
12
pursuant
to a registration statement being filed by the Company pursuant to this
Section 2.05 and
any attorney, accountant or other professional retained by any such Shareholder
or underwriter (collectively, the “Inspectors”), all financial
and other records, pertinent corporate documents and properties of the Company
and its Subsidiaries (collectively, the “Records”) as shall be
reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the officers, directors and employees of the Company
and its Subsidiaries to supply all information reasonably requested by any
Inspectors in connection with such registration statement. Records
that the Company determines, in good faith, to be confidential and that it
notifies the Inspectors are confidential shall not be disclosed by the
Inspectors unless (i) the disclosure of such Records is necessary to avoid or
correct a misstatement or omission in such registration statement or (ii) the
release of such Records is ordered pursuant to a subpoena or other order from a
court of competent jurisdiction. Each Registering Shareholder agrees
that information obtained by it as a result of such inspections shall be deemed
confidential and shall not be used by it or its Affiliates for any other purpose
(including as the basis for any market transactions in the Company Securities)
unless and until such information is made generally available to the
public. Each Registering Shareholder further agrees that, upon
learning that disclosure of such Records is sought in a court of competent
jurisdiction, it shall give notice to the Company and allow the Company, at its
expense, to undertake appropriate action to prevent disclosure of the Records
deemed confidential.
(h) The
Company shall furnish to each Registering Shareholder and to each underwriter,
if any, a signed counterpart, addressed to such Registering Shareholder or
underwriter, of (i) an opinion or opinions of counsel to the Company and (ii) a
comfort letter or comfort letters from the Company’s independent public
accountants, each in customary form and covering such matters of the kind
customarily covered by opinions or comfort letters, as the case may be, as a
majority of such Registering Shareholders or the managing underwriter therefor
reasonably requests.
(i) The
Company shall otherwise comply with all applicable rules and regulations of the
SEC, and make available to its security holders, as soon as reasonably
practicable, an earnings statement or such other document covering a period of
at least 12 months, beginning within three months after the effective date of
the registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158
thereunder.
(j) The
Company may require each Registering Shareholder promptly to furnish in writing
to the Company such information regarding the distribution of the Registrable
Securities as the Company may from time to time reasonably request and such
other information as may be legally required or reasonably requested in
connection with such registration.
(k) Each
Registering Shareholder agrees that, upon receipt of any notice from the Company
of the happening of any event of the kind described in Section 2.05(e), such
Shareholder shall forthwith discontinue disposition of Registrable Securities
pursuant to
13
the
registration statement covering such Registrable Securities until such
Shareholder’s receipt of the copies of the supplemented or amended prospectus
contemplated by Section 2.05(e), and, if so directed by the Company, such
Shareholder shall deliver to the Company all copies, other than any permanent
file copies then in such Shareholder’s possession, of the most recent prospectus
covering such Registrable Securities at the time of receipt of such
notice. If the Company shall give such notice, the Company shall
extend the period during which such registration statement shall be maintained
effective (including the period referred to in Section 2.05(a)) by the number of
days during the period from and including the date of the giving of notice
pursuant to Section 2.05(e) to the date when the Company shall make available to
such Shareholder a prospectus supplemented or amended to conform with the
requirements of Section 2.05(e).
(l) The
Company shall use all reasonable efforts to list all Registrable Securities
covered by such registration statement on any securities exchange or quotation
system on which any of the Registrable Securities are then listed or
traded.
(m) The
Company shall have appropriate officers of the Company (i) prepare and make
presentations at any “road shows” and before analysts, as the case may be, as
reasonably requested and (ii) otherwise cooperate as reasonably requested by the
underwriters in the offering, marketing or selling of the Registrable
Securities.
Section
2.06. Indemnification by the
Company. The Company agrees to indemnify and hold harmless each
Registering Shareholder holding Registrable Securities covered by a registration
statement, its officers, directors, employees, partners and agents, and each
Person, if any, who controls such Shareholder within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act from and against any and
all losses, claims, damages, liabilities and expenses (including reasonable
expenses of investigation and reasonable attorneys’ fees and expenses incurred
in connection with actions, proceedings or settlements in respect thereof)
(“Damages”) (i) caused
by or relating to any untrue statement or alleged untrue statement of a material
fact contained or incorporated by reference in any registration statement or
prospectus relating to the Registrable Securities (as amended or supplemented if
the Company shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, “issuer free writing prospectus” (as defined in Rule
433(h) of the Securities Act), offering circular, or other document (including
any related registration statement, notification or similar document), together,
the “Registration
Documents” incident to any such registration, or (ii)
caused by or relating to any omission or alleged omission in the Registration
Documents to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or (iii) caused by or
relating to any violation (or alleged violation) by the Company of applicable
securities laws in connection with such registration, except in the case of
clauses (i), (ii) and (iii) insofar as such Damages are caused by or related to
any such untrue statement or omission or alleged untrue statement or omission so
made or violation or alleged violation in each case based upon (A)
information furnished in writing to the Company by such Registering Shareholder
or on such Registering Shareholder’s behalf by its officers, directors, partners
or legal
14
counsel
expressly for use therein or (B) information relating to Target furnished in
writing to the Company by Target prior to the consummation of the
Merger. The Company also agrees to indemnify any underwriters of the
Registrable Securities, their officers and directors and each Person who
controls such underwriters within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act on substantially the same basis as that of
the indemnification of the Registering Shareholders provided in this Section
2.06.
Section
2.07. Indemnification by
Registering Shareholders. Each Registering Shareholder holding
Registrable Securities included in any registration statement agrees, severally
but not jointly, to indemnify and hold harmless the Company, its officers,
directors and agents and each Person, if any, who controls the Company within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from the Company to
such Shareholder, but only with respect to information furnished in writing by
such Registering Shareholder or on such Registering Shareholder’s behalf by its
officers, directors, partners or legal counsel expressly for use in any
registration statement or prospectus relating to the Registrable Securities, or
any amendment or supplement thereto, or any preliminary prospectus. Each
Registering Shareholder also agrees to indemnify and hold harmless underwriters
of the Registrable Securities, their officers and directors and each Person who
controls such underwriters within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act on substantially the same basis
as that of the indemnification of the Company provided in this Section
2.07. As a condition to including Registrable Securities in any
registration statement filed in accordance with this Article, the Company may
require that it shall have received an undertaking reasonably satisfactory to it
from any underwriter to indemnify and hold it harmless to the extent customarily
provided by underwriters with respect to similar securities. No
Registering Shareholder shall be liable under this Section 2.07 for any Damages
in excess of the net proceeds actually received by such Registering Shareholder
in the sale of Registrable Securities of such Registering Shareholder to which
such Damages relate.
Section
2.08. Conduct of
Indemnification Proceedings. If any proceeding (including any
investigation by any Governmental Authority) shall be instituted involving any
Person in respect of which indemnity may be sought pursuant to Section 2.06 or
2.07, such Person (an “Indemnified Party”) shall
promptly notify the Person against whom such indemnity may be sought (the “Indemnifying Party”) in
writing and the Indemnifying Party shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to such Indemnified Party, and
shall assume the payment of all fees and expenses; provided that the failure of
any Indemnified Party so to notify the Indemnifying Party shall not relieve the
Indemnifying Party of its obligations hereunder except to the extent that the
Indemnifying Party is prejudiced by such failure to notify. In any such
proceeding, any Indemnified Party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Party unless (i) the Indemnifying Party and the Indemnified
Party shall have mutually agreed to the retention of such counsel or (ii) in the
reasonable judgment of
15
such
Indemnified Party, representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between
them. It is understood that, in connection with any proceeding or
related proceedings in the same jurisdiction, the Indemnifying Party shall not
be liable for the reasonable fees and expenses of more than one separate firm of
attorneys (in addition to any local counsel) at any time for all such
Indemnified Parties, and that all such fees and expenses shall be reimbursed as
they are incurred. In the case of any such separate firm for the
Indemnified Parties, such firm shall be designated in writing by the Indemnified
Parties. The Indemnifying Party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent, or if there be a final judgment for the plaintiff,
the Indemnifying Party shall indemnify and hold harmless such Indemnified
Parties from and against any loss or liability (to the extent stated above) by
reason of such settlement or judgment. Without the prior written
consent of the Indemnified Party, no Indemnifying Party shall effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Party is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Party, unless such settlement includes an
unconditional release of such Indemnified Party from all liability arising out
of such proceeding. Each Indemnified Party shall furnish such
information regarding itself or the claim in question as an Indemnifying Party
may reasonably request in writing and as shall be reasonably required in
connection with the defense of such claim and litigation resulting
therefrom.
Section
2.09. Contribution. (a)
If the indemnification provided for in Section 2.06 or
2.07 is held by a court of competent jurisdiction to be unavailable to the
Indemnified Parties in respect of any Damages, then each such Indemnifying
Party, in lieu of indemnifying such Indemnified Party, shall contribute to the
amount paid or payable by such Indemnified Party as a result of such
Damages,
(i) as
between the Company and the Registering Shareholders holding Registrable
Securities covered by a registration statement on the one hand and the
underwriters on the other, in such proportion as is appropriate to reflect the
relative benefits received by the Company and such Registering Shareholders on
the one hand and the underwriters on the other, from the offering of the
Registrable Securities, or if such allocation is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits but also the relative fault of the Company and such Registering
Shareholders on the one hand and of such underwriters on the other in connection
with the statements or omissions that resulted in such Damages, as well as any
other relevant equitable considerations and
(ii) as
between the Company on the one hand and each such Registering Shareholder on the
other, in such proportion as is appropriate to reflect the relative fault of the
Company and of each such Registering Shareholder in connection with such
statements or omissions, as well as any other relevant equitable
considerations.
16
The
relative benefits received by the Company and such Registering Shareholders on
the one hand and such underwriters on the other shall be deemed to be in the
same proportion as the total proceeds from the offering (net of underwriting
discounts and commissions but before deducting expenses) received by the Company
and such Registering Shareholders bear to the total underwriting discounts and
commissions received by such underwriters, in each case as set forth in the
table on the cover page of the prospectus. The relative fault of the
Company and such Registering Shareholders on the one hand and of such
underwriters on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company and such Registering Shareholders or by such
underwriters. The relative fault of the Company on the one hand and
of each such Registering Shareholder on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by such party, and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. Notwithstanding the foregoing, to the extent
that the provisions on indemnification and contribution contained in the
underwriting agreement entered into in connection with a Public Offering are in
conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control. Unless otherwise superseded by the
underwriting agreement entered into in connection with a Public Offering, the
obligations of the Company and the Registering Shareholders under this Section
2.09 shall survive the consummation of any offering of Registrable Securities in
a registration statement under this Agreement, and shall survive the termination
of this Agreement.
(b) The
Company and the Registering Shareholders agree that it would not be just and
equitable if contribution pursuant to this Section 2.09 were determined by pro
rata allocation (even if the underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in Section 2.09(a). The amount paid or
payable by an Indemnified Party as a result of the Damages referred to in
Section 2.09(a) shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such Indemnified Party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 2.09, no underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Registrable Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any Damages that
such underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission, and no Registering
Shareholder shall be required to contribute any amount in excess of the amount
by which the total price at which the Registrable Securities of such Shareholder
were offered to the public (less underwriters’ discounts and commissions)
exceeds the amount of any Damages that such Registering Shareholder has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to
17
contribution
from any Person who was not guilty of such fraudulent
misrepresentation. Each Registering Shareholder’s obligation to
contribute pursuant to this Section 2.09 is several in the proportion that the
proceeds of the offering received by such Registering Shareholder bears to the
total proceeds of the offering received by all such Registering Shareholders and
not joint.
Section
2.10. Participation in Public
Offering. No Shareholder may participate in any Public Offering hereunder
unless such Shareholder (a) agrees to sell such Shareholder’s Registrable
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 and the provisions of this Agreement in respect of
registration rights.
Section
2.11. Other
Indemnification. Indemnification similar to that specified herein (with
appropriate modifications) shall be given by the Company and each Registering
Shareholder participating therein with respect to any required registration or
other qualification of securities under any federal or state law or regulation
or Governmental Authority other than the Securities Act.
Section
2.12. Cooperation by the
Company. If any Shareholder shall Transfer any Registrable Securities
pursuant to Rule 144, the Company shall cooperate, to the extent commercially
reasonable, with such Shareholder and shall provide to such Shareholder such
information as such Shareholder shall reasonably request.
Section
2.13. No Transfer of
Registration Rights. Except as provided in Section 3.07, none of the
rights of Shareholders under this Article shall be assignable by any Shareholder
to any Person. Any such purported assignments in violation of this
Section
2.13 shall
be null and void.
ARTICLE 3
GENERAL PROVISIONS
Section
3.01. Notices. All
notices, requests and other communications to any party hereunder shall be in
writing (including facsimile transmission but not electronic mail) and shall be
given,
(a)
|
if
to the Company, to:
Patriot
Coal Corporation
00000
Xxxxx Xxxxxxxxx, Xxxxx 000
Xx.
Xxxxx, Xxxxxxxx 00000
Attention:
Xxxxxx X. Xxxx
Facsimile
No.: (000)
000-0000
|
18
|
with
a copy to:
Xxxxx
Xxxx & Xxxxxxxx
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx, XX 00000
Attention:
Xxxxxxx X. Xxxxxx
Facsimile
No.: (000)
000-0000
|
(b)
|
if
to any Shareholder, to:
ArcLight
Energy Partners Fund I, L.P.
ArcLight
Energy Partners Fund II, L.P.
c/o
ArcLight Capital Partners, LLC
000
Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx, XX 00000
Attention:
Xxxx X. Xxxxxx
Senior Partner
Facsimile
No.: 000-000-0000
with
a copy to:
ArcLight
Energy Partners Fund I, L.P.
ArcLight
Energy Partners Fund II, L.P.
c/o
ArcLight Capital Partners, LLC
000
Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx,
XX 00000
Attention:
Xxxxxxxxx X. Xxxxxx
Associate General Counsel
Facsimile
No.: 617.867.4698
and
a further copy to:
Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx
Xxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention:
Xxxx X. Xxxxx, Esq.
Facsimile
No.: (000) 000-0000
|
or to such
other address or facsimile number as such party may hereafter specify by notice
to the other parties hereto. All such notices, requests and other
communications shall be deemed received on the date of receipt by the recipient
thereof if received prior to 5:00 p.m. on a Business Day in the place of
receipt. Otherwise, any such notice, request or communication shall
be deemed to have been received on the next succeeding Business Day in the place
of receipt.
19
Section
3.02. Headings. The
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this
Agreement.
Section
3.03. Amendments and
Waivers. (a) Any provision of this Agreement may be amended or waived if,
but only if, such amendment or waiver is in writing and is signed, in the case
of an amendment, by the Company and a number of Shareholders owning at least a
majority of the Company Securities owned by all Shareholders at such time, or in
the case of a waiver, by the party against whom the waiver is to be
effective.
(b) No
failure or delay by any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies herein provided
shall be cumulative and not exclusive of any rights or remedies provided by
law.
Section
3.04. Termination. This
Agreement shall terminate on the date that all Company Securities have ceased to
be Registrable Securities, provided that the terms of
Section 2.04 shall survive the termination of this Agreement until the
Shareholders own less than 7.5% in the aggregate of the outstanding shares of
Common Stock. No party hereto shall be relieved from any liability
for breach of this Agreement by reason of any such termination. For
the avoidance of doubt, this Agreement shall not otherwise terminate except with
the mutual written agreement of each of the parties hereto.
Section
3.05. Severability. If
any term, provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction or other Governmental Authority to be invalid,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such a determination, the parties shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner in order
that the transactions contemplated hereby be consummated as originally
contemplated to the fullest extent possible.
Section
3.06. Entire
Agreement. This Agreement constitutes the entire agreement of
the parties and supersedes all prior agreements and undertakings, both written
and oral, between the parties, or any of them, with respect to the subject
matter hereof.
Section
3.07. Assignment. The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and permitted assigns,
provided that no party may assign, delegate or otherwise transfer any of its
rights, interests or obligations under this Agreement without the prior written
consent of the other parties hereto, except that (i) the Company may assign,
delegate or otherwise transfer any of its rights, interests or obligations under
this Agreement to an Affiliate without the consent of any Shareholder and (ii) a
Shareholder may assign,
20
delegate
or otherwise transfer any of its rights, interests or obligations under this
Agreement to an Affiliate that agrees in writing to be bound by the terms of
this Agreement without the consent of the Company in connection with a Transfer
of Company Securities to such Affiliate provided that if such
Affiliate ceases to be an Affiliate of the applicable Shareholder, such
Affiliate shall cease to have any rights hereunder but shall otherwise continue
to be bound by its obligations hereunder, but any such transfer or assignment
shall not relieve the Company or the Shareholder, as the case may be, of its
obligations hereunder.
Section
3.08. Governing Law.
This Agreement shall be governed by and construed in accordance with the
laws of the State of Delaware, without regard to its conflicts of law
principles.
Section
3.09. Jurisdiction. The
parties hereto agree that any suit, action or proceeding seeking to enforce any
provision of, or based on any matter arising out of or in connection with, this
Agreement or the transactions contemplated hereby shall be brought in any
federal court located in the State of Delaware or any Delaware state court, and
each of the parties hereby irrevocably consents to the jurisdiction of such
courts (and of the appropriate appellate courts therefrom) in any such suit,
action or proceeding and irrevocably waives, to the fullest extent permitted by
law, any objection that it may now or hereafter have to the laying of the venue
of any such suit, action or proceeding in any such court or that any such suit,
action or proceeding brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding
may be served on any party anywhere in the world, whether within or without the
jurisdiction of any such court. Without limiting the foregoing, each
party agrees that service of process on such party as provided in Section 3.01
shall be deemed effective service of process on such party.
Section
3.10. WAIVER OF JURY
TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL
RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section
3.11. Counterparts; Third
Party Beneficiaries. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument. Until
and unless each party has received a counterpart of this Agreement signed by
each of the other parties, this Agreement shall have no effect, and no party
shall have any right or obligation under this Agreement (whether by virtue of
any other oral or written agreement or other communication). This
Agreement shall become effective when each party shall have received a
counterpart hereof signed by the other parties. No provision of this
Agreement is intended to confer upon any Person other than the parties hereto
any rights or remedies hereunder. Any such counterpart may be
delivered by facsimile or other electronic format (including
“.pdf”).
21
IN WITNESS
WHEREOF, the parties have executed this Agreement as of the date
first written above.
PATRIOT COAL CORPORATION | |||
|
By:
|
||
Name: | |||
Title: | |||
ARCLIGHT
ENERGY PARTNERS FUND I, L.P. and ARCLIGHT ENERGY PARTNERS FUND II,
L.P.
|
|||
ARCLIGHT
ENERGY PARTNERS FUND I, L.P.
|
|||
By:
|
ArcLight
PEF GP, LLC, its General
Partner
|
||
By:
|
ArcLight
Capital Holdings, LLC, its Manager
|
||
|
By:
|
||
Name: | |||
Title: | |||
ARCLIGHT
ENERGY PARTNERS FUND II, L.P.
|
|||
By:
|
ArcLight
PEF XX XX, LLC, its General Partner
|
||
By:
|
ArcLight
Capital Holdings, LLC, its Manager
|
||
|
By:
|
||
Name: | |||
Title: | |||
23