Exhibit 4.2
REGISTRATION RIGHTS AGREEMENT, dated as of April 4, 1997 ("Agreement"),
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among ARCH MINERAL CORPORATION, a Delaware corporation (the "Company"), ASHLAND
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INC., a Kentucky corporation ("AI"), CARBOEX INTERNATIONAL, LTD., a Bahamian
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corporation, ("Carboex"), the entities listed on Schedule I hereto
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(individually, a "Xxxx Entity," and collectively, the "Xxxx Entities"), and the
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entities listed on Schedule II hereto (individually, a "Xxxx Piggybacker", and
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collectively, the "Xxxx Piggybackers", (AI, Carboex, each Xxxx Entity and each
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Xxxx Piggybacker being hereafter referred to as a "Shareholder" and AI, Carboex,
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the Xxxx Entities and the Xxxx Piggybackers being hereafter referred to
collectively as the "Shareholders").
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WHEREAS, AI, Carboex, the Xxxx Entities and the Xxxx Piggybackers each will
own shares of the Company's Common Stock, par value $.01 ("Company Common
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Stock") as of the Effective Date; and
WHEREAS, on the Effective Date, the Shareholders (other than the Xxxx
Piggybackers) will be subject to restrictions on the disposition of shares of
Company Common Stock under the Securities Act (as hereafter defined); and
WHEREAS, the Company has determined that it would be in its best interests
and in the best interest of its public stockholders to provide AI, Carboex and
the Xxxx Entities with the means to effect the public sale of registered shares
of the Company Common Stock on the terms and subject to the conditions provided
herein in order to increase the number of shares of Company Common Stock freely
tradeable on the public market, the number of holders
thereof, thereby the market liquidity of the Company Common Stock; and
WHEREAS, the Company has determined that it would be in its best interests
and the best interest of the public stockholders to provide each of the Xxxx
Piggybackers registration rights in underwritten offerings with the other
Shareholders;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and intending to be legally bound hereby, the parties hereto
agree effective as of the Effective Date as follows:
ARTICLE I
CERTAIN DEFINITIONS
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SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
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following capitalized terms shall have the following respective meanings:
"Affiliate" shall mean, with respect to any specified Person, any other
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Person that directly, or indirectly through one or more intermediaries,
controls, is controlled by or is under common control with such specified
Person.
"Effective Date" shall mean the date the business combination between
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Ashland Coal, Inc. ("Ashland Coal") and the Company described in that certain
Agreement and Plan of Merger dated as of April 4, 1997, among the Company,
Ashland Coal, and AMC Merger Corporation becomes effective and the conversion of
Ashland Coal securities to Company Common Stock pursuant thereto has occurred.
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"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
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or any similar federal statute then in effect, and a reference to a particular
section thereof shall be deemed to include a reference to the comparable
section, if any, of any such similar federal statute.
"Holder" shall mean (i) each Shareholder or any Affiliate of such
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Shareholder to whom all the Registrable Securities owned by and all unexercised
rights under this Agreement then held by such Shareholder have been transferred
or assigned; provided that any such Affiliate shall only accede to the
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registration rights of the transferring or assigning Shareholder hereunder which
have not been exercised by such Shareholder on or prior to the date of such
assignment or transfer, or (ii) any transferee or assignee to whom all the
Registrable Securities owned by and all unexercised rights under this Agreement
held by such Shareholder at the time of the transfer or assignment (the
"Transfer Date") are transferred or assigned (any such Affiliate and other
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transferees and assignees referred to in (i) and (ii) being hereafter referred
to as a "Permitted Transferee"), provided that such Permitted Transferee shall
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only accede to the registration rights of the transferor hereunder which have
not been exercised by such transferor on or prior to the Transfer Date, provided
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further that the registration rights, if any, obtained by such Permitted
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Transferee shall be subject to termination pursuant to this Agreement,
including, without limitation and as applicable, Sections 2.02, 3.02 and 10.02.
"Holder" shall not include any Shareholder who has
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exercised all its registration rights hereunder, a Permitted Transferee who has
exercised all its registration rights hereunder, or a Permitted Transferee who
never obtained any registration rights hereunder.
"Xxxx Group" shall mean one or more of the Xxxx Entities and their
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Permitted Transferees owning, at the time of determination, more than 50% of all
the Registrable Shares then held by all the Xxxx Entities and all Permitted
Transferees of the Xxxx Entities.
"Market Value" shall mean as of any day the closing price of the Company
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Common Stock on the NYSE (or if such day shall not be a day when Company Common
Stock is eligible for trading the last day when a closing price was reported).
"Person" shall mean any individual, partnership, joint venture,
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corporation, trust, unincorporated organization or government or any department
or agency thereof.
"Prospectus" means the prospectus included in any Registration Statement,
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as amended or supplemented by any prospectus supplement with respect to the
terms of the offering of any portion of the Registrable Securities covered by
such Registration Statement and all other amendments or supplements to the
Prospectus, including post-effective amendments, and all material incorporated,
or deemed to be incorporated, by reference in such Prospectus.
"Registrable Securities" shall mean any Company Common Stock held by the
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Shareholders on the Effective Date or securities which may be issued or
distributed in respect thereof by way of stock dividend or stock split or other
distribution, recapitalization or
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reclassification. As to any particular Registrable Securities, such securities
shall cease to be Registrable Securities when (i) a Registration Statement with
respect to the sale of such securities shall have become effective under the
Securities Act and Section 2.03, such securities have not been withdrawn from
registration under Section 5.04, and:
(A) the Selling Holder of such securities shall have disposed of such
securities in accordance with the plan of distribution set forth in
such Registration Statement; or
(B) after 10 days in the case of an underwritten offering or 120 days in
the case of an offering on a delayed or continuous basis, the Selling
Holder of such securities has sold fewer than 40% of the securities so
registered by such Selling Holder for any reason (other than the
occurrence of a contingency described in Section 2.03(i) or (ii) or
withdrawal of securities under Section 5.04), provided in such case
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only the Registrable Securities disposed of plus the number of
Registrable Securities equal to the difference between the securities
sold by such Selling Holder pursuant to such Registration Statement
and 40% of the amount of Registrable Securities originally registered
on such Registration Statement by such Selling Holder shall cease to
be Registrable Securities,
(ii) such securities shall have been sold to the public pursuant to any
statutory or regulatory exemption from registration under the
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Securities Act or when the number of shares of Registrable Securities sought to
be registered by any Holder (other than by a Xxxx Piggybacker) pursuant to this
Agreement shall be equal to or less than the number of Registrable Securities
eligible for resale by such Holder pursuant to any statutory or regulatory
exemption from registration under the Securities Act during the six months next
following the date the subject registration is first sought by any Holder
(assuming the average weekly trading volume for purposes of any such exemption
shall be the same as the average weekly trading volume in the four weeks most
recently completed prior to such date), (iii) such securities shall have been
otherwise transferred to a Permitted Transferee, new certificates for them not
bearing a legend restricting further transfer shall have been delivered by the
Company and subsequent disposition of them shall not be subject to registration
or qualification of them under the Securities Act or any state securities or
blue sky law then in force, or (iv) such securities shall have ceased to be
outstanding.
"Registration Expenses" means any and all out-of-pocket expenses of the
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Company incurred at the request of or with the concurrence of the Company
incident to performance of or compliance with this Agreement, including, without
limitation, (i) all SEC and stock exchange or National Association of Securities
Dealers, Inc. registration and filing fees, (ii) all fees and expenses of
complying with state securities or blue sky laws (including fees and
disbursements of counsel for the underwriters in connection with blue sky
qualifications of the Registrable Securities and
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determination of the eligibility of the Registrable Securities for investment
under the laws of such jurisdiction as the managing underwriters or Holders of
the Registrable Securities being registered may indicate), (iii) all printing,
messenger and delivery expenses, (iv) all fees and expenses incurred in
connection with the listing of the Registrable Securities on any securities
exchange pursuant to Section 5.01(o), (v) the fees and disbursements of outside
counsel for the Company and of its independent public accountants, including the
expenses of any special audits and/or "cold comfort" letters required by or
incident to such performance and compliance, (vi) any fees and disbursements of
underwriters customarily paid by the issuer or seller of securities, and (vii)
the reasonable fees and expenses of any special experts retained in connection
with the Registration Statement.
"Registration Statement" means any registration statement under the
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Securities Act which covers any Registrable Securities filed by the Company
pursuant to the provisions of this Agreement or otherwise, including the
Prospectus contained therein, any amendments and supplements to such
Registration Statement, including post-effective amendments, and all exhibits
and all material incorporated, or deemed to be incorporated, by reference in
such Registration Statement.
"Securities Act" shall mean the Securities Act of 1933, as amended, or any
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similar federal statute then in effect, and a reference to a particular section
thereof shall be deemed to
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include a reference to the comparable section, if any, of any such similar
federal statute.
"SEC" shall mean the Securities and Exchange Commission or any other
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federal agency at the time administering the Securities Act or the Exchange Act.
"Selling Holder" shall mean any Holder of Registrable Securities being
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registered pursuant to this Agreement in connection with a Registration
Statement, including any Holder participating in a Xxxx Group.
ARTICLE II
DEMAND REGISTRATION
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SECTION 2.01. Demands for Registration. (a) To exercise its demand
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registration rights under Section 2.02, a Holder or, in the case of the exercise
of rights hereunder by any Holder that is a Xxxx Entity or a Permitted
Transferee of a Xxxx Entity, the Xxxx Group, shall give written notice (a
"Demand") requesting that the Company effect the registration under the
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Securities Act of all or part of the Registrable Securities held by it in an
amount not less than the greater of $10,000,000 in Market Value of the
Registrable Securities as of the day of the request or 2% of the total issued
and outstanding shares of Common Stock on such date (a "Demand Registration"),
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which demand shall specify the amount of Registrable Securities to be
registered, the computation of shares eligible for exempt public resale pursuant
to subsection (ii) of the Registrable Securities definition in Section 1.01 and
intended method or methods of disposition of such Registrable Securities,
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which disposition shall be for cash and may be by means of either an
underwritten offering or, after the Company is eligible to use an abbreviated
Registration Statement on Form S-3 or any successor Form, offering on a delayed
or continuous basis pursuant to or in reliance on Rule 415 of the Securities
Act, as amended from time to time after the execution date of this Agreement or
any similar or successor provision under the Securities Act. Upon receipt of
such Demand, the Company will use its best efforts to effect the registration
under the Securities Act of such Registrable Securities for disposition in
accordance with the intended method or methods of disposition stated in such
Demand, provided that:
(i) if the Company shall have previously effected a registration with
respect to Registrable Securities pursuant to this Article II or
Article III, the Company shall not be required to commence using its
best efforts to effect a registration pursuant to this Article II
until a period of 30 days shall have elapsed from the termination of
the most recent such previous registration;
(ii) if, in the reasonable judgment of the Company, a registration at the
time and on the terms requested would adversely affect any securities
offering by the Company or merger, acquisition, disposition or other
material transaction involving the Company or any subsidiary of the
Company that had been formally proposed by the Company prior to the
Company's receipt of the Demand, the
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Company shall not be required to commence using its best efforts to
effect a registration pursuant to this Section 2.01 until the later of
(A) 10 days after the completion or abandonment of such securities
offering and related distribution or merger, acquisition, disposition
or other material transaction involving the Company or any subsidiary
of the Company and (B) the termination of any "black out", hold-out or
lock-up period or the like, if any, required by any underwriters in
connection with such securities offering or merger, acquisition,
disposition or other material transaction involving the Company or any
subsidiary of the Company; provided, however, that such delay shall
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not exceed 120 days; and provided further that the Holder seeking
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registration will not unreasonably withhold its consent to a
request by the Company to extend such period; and provided further
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that the Company may not invoke against any Holder the suspension of
commencement of best efforts to effect a Demand Registration provided
for in this subparagraph (ii) by reason of a securities offering more
than two times in any 12-month period; and
(iii)if, while a Demand is pending pursuant to this Article II, the
Company determines in its reasonable judgment that the filing of a
Registration Statement would require the disclosure of material
information which the Company has a bona fide business purpose for
preserving as
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confidential or that the Company would be unable to comply with SEC
requirements, the Company shall not be required to commence using its
best efforts to effect a registration pursuant to this Article II
until the earlier of (A) 10 days after the date upon which such
material information is disclosed to the public or ceases to be
material or (B) 120 days after the Company makes such good faith
determination; provided, however, that the Holder requesting
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registration will not unreasonably withhold its consent to a request
by the Company to extend such period.
Within 10 days after receipt of a Demand for which a registration will be
effected, the Company shall serve written notice (the "Notice") of such Demand
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to all other Holders entitled to participate therein and shall, subject to the
provisions of Section 2.02 hereof, as expeditiously as possible use its best
efforts to effect the registration under the Securities Act of all Registrable
Securities (A) which the Company has been so requested to register by the
initiating Holder or Holders referred to in the preceding sentence and (B) all
other Registrable Securities with respect to which the Company received written
request by another Holder or Holders for inclusion therein within 15 days after
Notice to the applicable Holder or Holders, the registration by such other
Holder or Holders being considered "Demand Piggybacking" and each such Holder
being deemed a "Demand Piggybacker". A Demand Piggybacker's method of
disposition shall be the same method specified by the
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initiating Holder of the Demand. In the event any Holder who has received the
Company's Notice elects not to participate as a Demand Piggybacker in an
underwritten offering, such Holder may not exercise its Demand Registration
rights until the underwritten offering described in the Notice is completed.
(b) Except where suspension of effectiveness is required when making an
amendment to a Registration Statement, the Company agrees to use its best
efforts to keep such Demand Registration continuously effective for the lesser
of 120 days following the date on which such Registration Statement pursuant to
a Demand Registration is declared effective (plus the number of days of any
discontinuance described in Section 5.03) or the period ending on the completion
of the distribution.
SECTION 2.02. Number of Demand Registrations, Duration of Right. (a)
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Holders are entitled to Demand Registration as follows:
(i) Carboex and its Permitted Transferees together shall be entitled to one
(1) Demand Registration which subsequently becomes effective under the
Securities Act and Section 2.03;
(ii) the Xxxx Entities and Permitted Transferees of the Xxxx Entities
together and only when acting as a Xxxx Group shall be entitled to two
Demand Registrations, each of which subsequently becomes effective
under the Securities Act and Section 2.03 (it being understood and
acknowledged by each Xxxx Entity that two Demand Registrations by any
Xxxx Group, however comprised, shall
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constitute the sole entitlement of the Xxxx Entities and their
Permitted Transferees to Demand Registration, notwithstanding that any
particular Xxxx Entity or any particular Permitted Transferee of a Xxxx
Entity has not participated in a Xxxx Group of Selling Holders); and
(iii) AI and its Permitted Transferees shall be entitled to three Demand
Registrations, each of which subsequently becomes effective under the
Securities Act and Section 2.03;
provided, however, that any Demand Registration right obtained by a Permitted
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Transferee, may only be exercised not later than five (5) years after the
Transfer Date; and provided further, that the right to effect a Demand
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Registration or incidental registration after withdrawal of the securities under
Section 5.04 shall be governed by that section. Carboex and its Permitted
Transferees together shall be entitled to one (1) piggyback registration upon
each Demand Registration pursuant to Section 2.01; the Xxxx Entities and
Permitted Transferees of a Xxxx Entity together and only when acting as a Xxxx
Group shall be entitled to one (1) piggyback registration upon each Demand
Registration pursuant to Section 2.01 (it being understood and acknowledged by
each Xxxx Entity that one piggyback registration by any Xxxx Group, however
comprised, shall constitute the sole entitlement of the Xxxx Entities and their
Permitted Transferees to piggyback registration with respect to any Demand
Registration, notwithstanding that any particular Xxxx Entity or any particular
Permitted Transferee of a Xxxx Entity has not participated in a Xxxx Group of
Selling
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Holders); and AI and its Permitted Transferees together shall be entitled to one
(1) piggyback registration upon each Demand Registration pursuant to Section
2.01; provided, however, that a piggyback registration upon a Demand
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Registration pursuant to Section 2.01 obtained by a Permitted Transferee, if
any, may only be exercised not later than five (5) years after the Transfer
Date.
(b) The registration within the meaning of Section 2.03 of Registrable
Securities by a Holder for sale alone or together with another Holder, shall
constitute the use of each such Holder's Demand Registration unless such
registration is a Demand Piggybacking.
(c) The Registrable Shares of the Xxxx Piggybackers and Permitted
Transferees of the Xxxx Piggybackers shall not be considered when determining
whether the Xxxx Entities are acting as a Xxxx Group under this Section, it
being understood that a Xxxx Piggybacker or any group of Xxxx Piggybackers
(except a Xxxx Piggybacker that is a Permitted Transferee of a Xxxx Entity
acting in a Xxxx Group, Carboex or AI) or their respective Permitted Transferees
(other than a Permitted Transferee of a Xxxx Piggybacker who is a Xxxx Entity,
Carboex or AI) shall not have any right to a Demand Registration, or to
piggyback on a Demand Registration except pursuant to Section 2.04.
SECTION 2.03. Effective Registration Statement. A registration requested
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pursuant to this Article II and pursuant to Article III shall be deemed to have
been effected when it has been declared effective by the SEC; provided, however,
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such registration
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statement shall be deemed not to have been effected with respect to any
Registrable Securities not already sold if (i) within 90 days after it has
become effective, the offering of Registrable Securities pursuant to such
registration is interfered with by any stop order, injunction, or other order or
requirement of the SEC or any other governmental agency or court (unless such
stop order, injunction, or other order or requirement arises as a result of an
act or omission of a Selling Holder or the Selling Holders of Registrable
Securities, in which case it shall be deemed to have been effected), or (ii) (A)
in an underwritten Article II or Article III registration, there has occurred
any material adverse change in the financial markets which has been invoked by
the underwriters to terminate the underwriting agreement with respect to the
Registrable Securities under a "market out" or other similar condition to the
underwriters' obligation to close under such underwriting agreement, or (B) in
an Article II or Article III registration which is not an underwritten offering,
there has occurred, in the opinion of the selling broker acting for the Selling
Holders under the Registration Statement, which selling broker shall have been
previously approved by the Company, any material adverse change in the financial
markets within 90 days of the effective date of the offering under the
Securities Act which makes impracticable the sale of the Registrable Securities.
SECTION 2.04. Rights of the Xxxx Piggybackers, the Company or
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Securityholders to Piggyback on Demand Registrations. Subject to the priority
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provisions of Section 2.05, the Xxxx Piggybackers and
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their Permitted Transferees shall have the right to include their Registrable
Securities, and the Company and any of its other securityholders (other than
Holders of Registrable Securities in such capacity), shall have the right to
include shares of Company Common Stock or any other Company securities that are
of the same class or type as any Registrable Securities, in any Demand
Registration pursuant to this Article II. The Xxxx Piggybackers, the Company's,
and such securityholder's method of disposition shall be the same method
specified by the initiating Holder or, in the case of the exercise of rights
hereunder by any Holder that is a Xxxx Entity, by a representative of the Xxxx
Group with whom the Holder is participating, in the Demand. The right of the
Xxxx Piggybackers and any other securityholder of the Company to registration in
connection with a Demand Registration under this Section 2.04 shall terminate at
such time as the registration rights of AI, Carboex and each Xxxx Entity under
this Article II shall terminate (including by agreement of AI, Carboex and the
Xxxx Entities).
SECTION 2.05. Priority in Demand Registrations. In a Registration Statement
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pursuant to Article II initiated by any Holder or Holders other than a Xxxx
Group, if the managing underwriters of an underwritten offering or the selling
broker in an offering on a delayed or continuous basis inform the Holders that
the total number of Registrable Securities which the Holders intend to include
in such offering is such as to materially and adversely affect the success of
such offering, then such offering
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shall include (i) first, 100% of the Registrable Securities the initiating
Holder or Holders propose to sell, (ii) second, the number of Registrable
Securities requested by a Demand Piggybacker or Demand Piggybackers to be
included in such registration which, in the good faith judgment of such managing
underwriter or underwriters or selling broker, as the case may be, can be sold
and not materially and adversely affect the success of the offering, allocated
pro rata among all requesting Demand Piggybackers on the basis of the relative
number of Registrable Securities sought to be registered by each such Demand
Piggybacker, and (iii)
(a) in the case of an underwritten offering only, third, the number of
Registrable Securities requested by a Xxxx Piggybacker or Xxxx Piggybackers to
be included in such registration which, in the good faith judgment of such
managing underwriter or underwriters can be sold and not materially and
adversely affect the success of the offering, allocated pro rata among all
requesting Xxxx Piggybackers on the basis of the relative number of Registrable
Securities sought to be registered by each such Xxxx Piggybacker; and fourth,
the number of securities of the Company or its securityholders (other than the
Shareholders) allocated among them pursuant to any allocation method agreed
among them; or
(b) in the case of a nonunderwritten offering only, third, the number of
Registrable Securities requested by a Xxxx Piggybacker and the number of
securities of the Company or its securityholders (other than the Shareholders)
allocated among them
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pursuant to any allocation method agreed among them with respect to all shares
sought to be registered by them.
In a Registration Statement pursuant to Article II initiated by a Xxxx
Group that is not an underwritten offering, if the selling broker in an offering
on a delayed or continuous basis informs the Holders that the total number of
Registrable Securities which the Holders intend to include in such offering is
such as to materially and adversely affect the success of such offering, then
such offering shall include (i) first, 100% of the Registrable Securities the
initiating Xxxx Group proposes to sell, (ii) second, the number of Registrable
Securities requested by any Demand Piggybackers to be included in such
registration which, in the good faith judgment of such managing underwriter or
underwriters or selling broker, as the case may be, can be sold and not
materially and adversely affect the success of the offering, allocated pro rata
among all requesting Demand Piggybackers on the basis of the relative number of
Registrable Securities sought to be registered by each such Demand Piggybacker,
and (iii) third, securities of the Company or securityholders (other than the
Demand Piggybackers), including the Registrable Securities of the Xxxx
Piggybackers, pursuant to any allocation method agreed among them with respect
to all shares sought to be registered by the Company or such other
securityholders and any Xxxx Piggybackers.
In a Registration Statement pursuant to Article II initiated by a Xxxx
Group that is an underwritten offering, if the managing underwriter informs the
Holders that the total number of
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Registrable Securities which the Holders intend to include in such offering is
such as to materially and adversely affect the success of such offering, then
such offering shall include (i) first, 100% of the Registrable Securities of the
initiating Xxxx Group proposes to sell, (ii) second, the number of Registrable
Securities requested by any Demand Piggybackers and any Xxxx Piggybackers to be
included in such registration which, in the good faith judgment of such managing
underwriter or underwriters can be sold and not materially and adversely affect
the success of the offering, allocated pro rata among all requesting Demand
Piggybackers and Xxxx Piggybackers on the basis of the relative number of
Registrable Securities sought to be registered by each such Demand Piggybacker
and Xxxx Piggybacker and (iii) third, the number of securities of the Company or
its securityholders (other than the Shareholders) allocated among them pursuant
to any allocation method agreed among them.
ARTICLE III
INCIDENTAL REGISTRATION
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SECTION 3.01. Right to Include Registrable Securities. If, during the
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period commencing on and after the Effective Date, the Company proposes to file
a registration statement under the Securities Act with respect to an offering by
the Company, or by any other Person having the right to require the Company to
file such registration statement, of Company Common Stock (other than a
registration statement on Form S-4 or S-8 or an S-3 used for a dividend
reinvestment plan, or any successor forms), then in the
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case of an underwritten offering, the Company shall give written notice of each
such proposed filing to the Holders and, in the case of a nonunderwritten
offering, the Company shall give written notice of each such proposed filing to
the Holders other than the Xxxx Piggybackers, in each case at least 20 days
before the anticipated filing date, and such notice shall offer such
participating Holders or, in the case of the exercise of rights hereunder by any
Holder that is a Xxxx Entity, a Xxxx Group, the opportunity to register such
number of Registrable Securities as each such Holder or, in the case of the
exercise of rights hereunder by any Holder that is a Xxxx Entity, a
representative of the Xxxx Group with whom the Holder is participating, may
request using the method of disposition proposed by the Company. Upon the
written request of any participating Holder or, in the case of the exercise of
rights hereunder by any Holder that is a Xxxx Entity, a representative of the
Xxxx Group with whom the Holder is participating (such participating Holder and
any other Person with registration rights exercisable with respect to the
subject registration being deemed "Incidental Piggybackers"), made within 15
days after receipt of any such notice (which request shall specify the
Registrable Securities intended to be sold), the Company shall use its best
efforts to effect the registration under the Securities Act of all Registrable
Securities which the Company has been so requested to register. Subject to the
managing underwriter's or selling broker's, as the case may be, Section 3.03
good faith judgment regarding the number of Registrable Securities
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to be registered, the Company shall use its best efforts to cause the managing
underwriters of any proposed underwritten offering or the selling broker in any
proposed offering on a delayed or continuous offering, to include such
Registrable Securities requested by Holders of its Registrable Securities
pursuant to this Section in such offering on the same terms and conditions as
any similar securities of the Company or other Person included therein.
SECTION 3.02. Number of Incidental Registrations, Duration of Right.
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Carboex and its Permitted Transferees together shall be entitled to two (2)
incidental registrations pursuant to this Article III which subsequently become
effective under the Securities Act and Section 2.03; the Xxxx Entities and
Permitted Transferees of the Xxxx Entities together and only when acting in a
Xxxx Group shall be entitled to two (2) incidental registrations pursuant to
this Article III which subsequently become effective under the Securities Act
and Section 2.03 (it being understood and acknowledged by each Xxxx Entity that
two incidental registrations by any Xxxx Group, however comprised, shall
constitute the sole entitlement of the Xxxx Entities and their Permitted
Transferees to incidental registration, notwithstanding that any particular Xxxx
Entity or any particular Permitted Transferee of a Xxxx Entity has not
participated in a Xxxx Group of Selling Holders); AI and its Permitted
Transferees together shall be entitled to two (2) incidental registrations
pursuant to this Article III which subsequently become effective under the
Securities Act and Section 2.03; and, in the case of underwritten offerings only
and until
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such time as the registration rights of AI, Carboex and each Xxxx Entity under
this Article III shall terminate (including by agreement of AI, Carboex, and the
Xxxx Entities), each Xxxx Piggybacker and its Permitted Transferee together
shall be entitled to two (2) incidental registrations pursuant to this Article
III which subsequently become effective under the Securities Act and Section
2.03, provided, however, that an incidental registration right obtained by a
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Permitted Transferee, if any, may only be exercised not later than 10 years
after the Transfer Date.
SECTION 3.03. Priority in Incidental Registration. If the managing
-----------------------------------
underwriters of an underwritten offering or the selling broker in an offering on
a delayed or continuous basis inform the Incidental Piggybacker or Incidental
Piggybackers that the total number of Registrable Securities or other securities
which the Incidental Piggybacker or Incidental Piggybackers intend to include in
such offering is such as to materially and adversely affect the success of such
offering, then such offering shall include (i) first, 100% of the securities the
Company or other Person initiating such registration proposes to sell, (ii)
second, the number of Registrable Securities or other securities requested by
AI, Carboex or the Xxxx Group to be included in such registration which, in the
good faith judgment of such managing underwriter or underwriters or selling
broker, as the case may be, can be sold and not materially and adversely affect
the success of the offering, allocated pro rata among AI, Carboex or the Xxxx
Group on the basis of the relative number of Registrable Securities or other
22
securities then sought to be registered by each of AI, Carboex and the Xxxx
Group, and (iii) third, in the case of an underwritten offering only, the number
of Registrable Securities or other Securities requested by Xxxx Piggybacker or
Xxxx Piggybackers to be included in such registration which, in the good faith
judgment of the managing underwriter or underwriters, can be sold and not
materially and adversely affect the success of the offering, allocated pro rata
among all requesting Xxxx Piggybackers on the basis of the relative number of
Registrable Securities or other Securities then sought to be registered by each
such Xxxx Piggybacker.
ARTICLE IV
HOLD-BACK AND COMPLIANCE AGREEMENTS
-----------------------------------
SECTION 4.01. Restriction on Sales by Holders. Each Holder agrees not to
-------------------------------
effect any public sale or distribution of Registrable Securities, including a
public sale or distribution pursuant to any statutory or regulatory exemption
from registration under the Securities Act, (i) if prohibited by applicable law,
or otherwise (ii) during the 14 days prior to, and during the 90 day period
beginning on, the effective date of any Registration Statement made effective
pursuant to Article II or III hereof (except as part of such Registration
Statement), in the case of (ii), if and to the extent requested by the Company
in the case of a non-underwritten public offering in which the Company has
registered securities other than Registrable Securities or if and to the extent
requested
23
by the Company or the managing underwriters in the case of an underwritten
public offering.
SECTION 4.02. Restriction on Sales by the Company or Others. The Company
---------------------------------------------
agrees (i) not to effect any public sale or distribution of any securities
similar to the Registrable Securities (other than similar securities registered
on Form S-4 or S-8 or an S-3 used for a dividend reinvestment plan, or any
successor form) or any securities convertible into or exchangeable or
exercisable for such securities, during the 14 days prior to, and during the 90
day period beginning on, the effective date of any Registration Statement made
effective pursuant to Article II hereof.
SECTION 4.03. Restriction on Purchases by the Holders. Each of the
---------------------------------------
Selling Holders agrees that it will observe the provisions of SEC Regulation M,
including Rule 102 therein, regulating the timing of purchases of Company Common
Stock by Selling Holders and their "affiliated purchasers" (within the meaning
of SEC Regulation M) during any "distribution" (within the meaning of SEC
Regulation M) of Company Common Stock pursuant to this Agreement.
ARTICLE V
REGISTRATION PROCEDURES
-----------------------
SECTION 5.01. In connection with the Company's Demand Registration
obligations pursuant to Article II hereof and in each case subject to the
limitations upon such obligations set forth in this Agreement, the Company shall
use its best efforts to effect such registrations to permit the sale of such
Registrable
24
Securities in accordance with the intended method or methods of disposition
thereof permitted by this Agreement, and, pursuant thereto, the Company shall as
expeditiously as possible:
(a) prepare and file with the SEC, within the time period specified in
Article II, the Registration Statement relating to the Demand
Registration on any appropriate form under the Securities Act, which
form shall be available for the disposition of the Registrable
Securities by the Holders thereof in accordance with the intended
method or methods of distribution thereof, which disposition shall be
for cash, and use its best efforts to cause such Registration Statement
to become effective; provided, however, that before filing a
-----------------
Registration Statement or Prospectus or any amendments or supplements
thereto, except for documents incorporated, or deemed to be
incorporated, by reference after the initial filing of any Registration
Statement, the Company shall furnish to the Selling Holders and to
counsel designated by such Selling Holders (or, in the case of any
registration by a Xxxx Group, to a Xxxx Entity and counsel designated
by the Xxxx Group) copies of all such documents proposed to be filed,
which documents shall be subject to the review of such Selling Holders
and their counsel (or, in the case of any registration by a Xxxx Group,
to a Xxxx Entity and counsel designated by the Xxxx Group), and the
Company shall not file any Registration Statement, or
25
amendment thereto or any Prospectus or any supplement thereto (except
for documents incorporated, or deemed to be incorporated, by reference)
to which the Selling Holders or the underwriters, if any, shall
reasonably object in the light of the requirements of the Securities
Act and any other applicable laws and regulations;
(b) prepare and file with the SEC such amendments and post-effective
amendments to a Registration Statement as may be necessary to keep such
Registration Statement effective for the applicable period; 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; and comply with the provisions of the
Securities Act applicable to the Company with respect to the
disposition of all securities covered by such Registration Statement
during the applicable period in accordance with the intended methods of
disposition by the sellers thereof set forth in such Registration
Statement or Prospectus;
(c) notify counsel for the Selling Holders (or, in the case of any
registration by a Xxxx Group, to a Xxxx Entity and counsel designated
by the Xxxx Group) and the managing underwriters and selling broker, if
any, and (if requested by any such Person) confirm such advice in
writing, (1) when a Prospectus or any Prospectus supplement or
amendment to a Prospectus has been filed,
26
and, with respect to a Registration Statement or any post-effective
amendment to a Registration Statement, when the same has become
effective, (2) of any request by the SEC for amendments or supplements
to a Registration Statement or related Prospectus or for additional
information or any receipt of SEC comments, (3) of the issuance by the
SEC of any stop order suspending the effectiveness of a Registration
Statement or the initiation of any proceedings for any such purpose,
(4) if at any time the representations and warranties of the Company
made as contemplated by Section 5.01(1) cease to be true and correct,
(5) of the receipt by the Company of any notification with respect to
the suspension of the qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation or
threatening of any proceedings for such purpose, (6) of the happening
of any event which requires the making of any changes in a Registration
Statement or related Prospectus so that such documents shall not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading and (7) of the Company's reasonable
determination that a post-effective amendment to a Registration
Statement would be appropriate;
27
(d) make every reasonable effort to prevent the issuance of any stop order
suspending the effectiveness of a Registration Statement or of any
order preventing or suspending the use of any Prospectus and, if any
such order is issued, to obtain the withdrawal of any such order;
(e) if reasonably requested by the managing underwriters, selling broker or
any Selling Holder (or, in the case of any registration by a Xxxx
Group, by a Xxxx Entity designated by the Xxxx Group) in connection
with an offering: (i) incorporate in a Prospectus supplement or post-
effective amendment such information as the requesting persons agree
should be included therein, including, without limitation, information
with respect to the number of Registrable Securities being sold to such
underwriters, the purchase price being paid therefor by such
underwriters and any other terms of the underwritten (or best efforts
underwritten) offering of the Registrable Securities to be sold in such
offering; (ii) make all required filings of such Prospectus supplement
or post-effective amendment as soon as notified of the matters to be
incorporated in such Prospectus supplement or post-effective amendment;
and (iii) supplement or make amendments to any Registration Statement;
28
(f) furnish to each Selling Holder (or, in the case of any registration by
a Xxxx Group, to a Xxxx Entity designated by the Xxxx Group) and each
managing underwriter or selling broker, as the case may be, without
charge, at least one copy of the executed Registration Statement or
Statements and any post-effective amendment thereto, including
financial statements and schedules, all documents incorporated therein
by reference and all exhibits (including those incorporated by
reference);
(g) deliver to each Selling Holder and to such counsel as designated by the
Selling Holder (or, in the case of any registration by a Xxxx Group, to
a Xxxx Entity and counsel designated by the Xxxx Group), and to the
underwriters or selling broker, if any, without charge, as many copies
of the Prospectus or Prospectuses (including each preliminary
Prospectus) and any amendment or supplement thereto as such Persons may
reasonably request, such delivery to evidence the Company's consent to
the use of such Prospectus or any amendment or supplement thereto by
each of the Selling Holders (or, in the case of any registration by a
Xxxx Group, by a Xxxx Entity and Counsel designated by the Xxxx Group)
and the underwriters or selling broker, if any, in connection with the
offering and sale of the Registrable Securities covered by such
Prospectus or any amendment or supplement thereto;
29
(h) prior to any public offering of Registrable Securities, register or
qualify or cooperate with the Selling Holders (or, in the case of any
registration by a Xxxx Group, with a Xxxx Entity and Counsel designated
by the Xxxx Group), the underwriters or selling broker, if any, and
their respective counsel in connection with the registration or
qualification of such Registrable Securities for offer and sale under
the securities or blue sky laws of such jurisdictions as any Selling
Holder (or, in the case of any registration by a Xxxx Group, as a Xxxx
Entity and Counsel designated by the Xxxx Group) or underwriter or
selling broker reasonably requests in writing; keep each such
registration or qualification effective during the period such
Registration Statement is required to be kept effective and do any and
all other acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Registrable Securities covered
by the applicable Registration Statement; provided that the Company
shall not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to take any action
which would subject it to general service of process in any such
jurisdiction where it is not then so subject;
(i) cooperate with the Selling Holders (or, in the case of any registration
by a Xxxx Group, with a Xxxx Entity
30
designated by the Xxxx Group) and the managing underwriters or selling
broker, if any, to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold and not
bearing any restrictive legends; and enable such Registrable Securities
to be in such denominations and registered in such names as the
managing underwriters or selling broker or such Selling Holders (or, in
the case of any registration by a Xxxx Group, with a Xxxx Entity
designated by the Xxxx Group) may reasonably request;
(j) use its best efforts to cause the Registrable Securities covered by the
applicable Registration Statement to be registered with or approved by
such other governmental agencies or authorities as may be necessary to
enable the seller or sellers thereof or the underwriters or selling
broker, if any, to consummate the disposition of such Registrable
Securities;
(k) upon the occurrence of any event contemplated by Section 5.01(c)(6),
prepare a supplement or post-effective amendment to the applicable
Registration Statement or related Prospectus or any document
incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of the Registrable
Securities being sold thereunder, such Prospectus shall not contain an
untrue statement of a
31
material fact or omit to state any material fact necessary to make the
statements therein not misleading;
(l) enter into customary agreements (including an underwriting agreement)
and take all such other actions in connection therewith reasonably
required in order to expedite or facilitate the disposition of such
Registrable Securities and in such connection the Company shall deliver
such documents and certificates as may be reasonably requested by the
managing underwriters or selling broker, if any, to evidence compliance
with any customary conditions contained in the underwriting agreement
or other agreement entered into by the Company;
(m) subject to customary confidentiality restrictions and applicable law,
make available for inspection by a representative of the Selling
Holders (or, in the case of any registration by a Xxxx Group, of the
Xxxx Entity designated by the Xxxx Group), any underwriter or the
selling broker participating in any disposition, and any attorney,
accountant or other agent retained by such Selling Holders (or, in the
case of any registration by a Xxxx Group, by the Xxxx Entity designated
by the Xxxx Group) or underwriter, all financial and other records,
pertinent corporate documents and properties of the Company reasonably
and customarily subject to a due diligence review, and cause the
Company's officers, directors and employees to supply all information
32
reasonably requested by any such representative, underwriter, attorney,
accountant or other agent in connection with such Demand Registration;
(n) otherwise use its best efforts to comply with all applicable rules and
regulations of the SEC and, if required by the underwriters or
applicable law, make generally available to its securityholders
earnings statements satisfying the provisions of Section ll(a) of the
Securities Act and the rules and regulations thereunder, no later than
90 days after the end of the 12-month periods (1) commencing at the end
of any fiscal quarter in which Registrable Securities are sold to
underwriters in a firm or best efforts underwriting offering and (2)
beginning with the first day of the Company's first fiscal quarter next
succeeding each sale of Registrable Securities after the effective date
of a Registration Statement, which statements shall cover said 12-month
periods; and
(o) use its best efforts to list such Registrable Securities on any
national securities exchange on which Company Common Stock is then
listed, if such Registrable Securities are not already so listed and if
such listing is then permitted under the rules of such exchange, and to
provide a transfer agent and registrar for such Registrable Securities
not later than the effective date of such Registration Statement.
33
SECTION 5.02. Information from Selling Holders. The Company may require
--------------------------------
each Selling Holder as to any Registration Statement being effected to furnish
to the Company such information regarding such Selling Holder and the
distribution of such securities as the Company may from time to time reasonably
request in writing. Without limiting the generality of the foregoing, the
Selling Holders shall furnish to the Company, or cause any underwriter or
selling broker selected by the Selling Holders to furnish to the Company, such
written representations as to the number of Registrable Securities held, offered
or sold by them from time to time pursuant to the Registration Statement and
such other information as the Company or its transfer agent may reasonably
require to monitor sales pursuant to the Registration Statement and effect
timely settlements of the sales.
SECTION 5.03. Discontinuance of Dispositions. Each of the Selling Holders
------------------------------
agrees that, upon receipt of any notice from the Company or otherwise of the
happening of any event of the kind described in Section 5.01(c)(2), (3), (5),
(6) or (7) hereof, such Selling Holder shall forthwith discontinue disposition
of such Registrable Securities pursuant to the Registration Statement covering
such Registrable Securities until such Selling Holder's receipt of the copies of
the supplemented or amended Prospectus contemplated by Section 5.01(k) hereof,
or until it (or in the case of any registration by a Xxxx Group, the Xxxx Entity
designated by the Xxxx Group) is advised in writing by the Company that the use
of the applicable Prospectus may be resumed, and has received
34
copies of any additional or supplemental filings which are incorporated, or
deemed to be incorporated, by reference in such Prospectus, and, if so directed
by the Company, such Selling Holder shall deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
Selling Holder's possession, of the Prospectus covering such Registrable
Securities current at the time of receipt of such notice. In the event the
Company shall give any such notice, the 120 day time period mentioned in Section
2.01 shall be extended by the number of days during the time period from and
including the date of the giving of such notice pursuant to Section 5.01(c)
hereof to and including the date when each seller of Registrable Securities
covered by such Registration Statement shall have received the copies of the
supplemented or amended Prospectus contemplated by Section 5.01(k) hereof.
SECTION 5.04. Sharing of Registration Expenses. If the Company, in the
--------------------------------
exercise of its reasonable judgment, objects to any change requested by a
Selling Holder or the Selling Holders or the underwriters, if any, to any
Registration Statement or Prospectus or any amendments or supplements thereto
(except documents incorporated, to be incorporated, or deemed to be incorporated
therein by reference) as provided for in this Article V, the Company shall not
be obligated to make any such change and the objecting Selling Holder or
objecting Selling Holders, as the case may be, may withdraw their Registrable
Securities from such registration. In such event and provided that such Selling
Holder
35
or Selling Holders acted reasonably and in good faith in requesting such change
and in withdrawing the Registrable Securities so withdrawn from such
registration, (i) (A) if the withdrawal shall occur prior to effectiveness or
within 90 days after the effective date of the Registration Statement under the
Securities Act, the Company and the objecting Selling Holder or objecting
Selling Holders (pro rata based on the number of shares withdrawn) shall share
equally all Registration Expenses (including the Company's counsel fees and
expenses) not otherwise payable by any nonobjecting Selling Holders under
Section 9.01 incurred in connection with such registration statement or
amendment thereto or prospectus or supplement thereto, and (B) such registration
shall not constitute a Demand Registration or an incidental registration in
accordance with Section 2.03, (ii) (A) if the withdrawal shall occur more than
90 days after the effective date of the Registration Statement under the
Securities Act, the objecting Selling Holder or objecting Selling Holders (pro
rata based on the number of shares withdrawn), as the case may be, shall pay all
Registration Expenses (including the Company's counsel fees and expenses) not
otherwise payable by any nonobjecting Selling Holder under Section 9.01 incurred
in connection with such Registration Statement or amendment thereto or
prospectus or supplement thereto, and (B) such registration shall constitute a
Demand Registration or incidental registration hereunder by the objecting
Selling Holder or each of the objecting Selling Holders.
36
ARTICLE VI
INDEMNIFICATION
---------------
SECTION 6.01. Indemnification by the Company. The Company agrees to
------------------------------
indemnify and hold harmless, to the full extent permitted by law, each Holder of
Registrable Securities, each Affiliate of such Holder, and each of their
respective officers, directors, employees and agents from and against all
losses, claims, damages, liabilities and expenses (including reasonable counsel
fees and expenses) arising out of or relating to any untrue or alleged untrue
statement of a material fact contained in any Registration Statement or
Prospectus (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) or in any preliminary Prospectus or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (in the case of a
Prospectus, in the light of the circumstances under which they were made) not
misleading, except insofar as such losses, claims, damages, liabilities and
expenses arise out of or relate to any information furnished in writing to the
Company by such Holder expressly for use therein.
SECTION 6.02. Indemnification by Selling Holders. (a) Each Selling Holder
----------------------------------
agrees, severally but not jointly, to indemnify and hold harmless, to the full
extent permitted by law, the Company, each Affiliate of the Company (other than
an indemnifying Selling Holder) its directors, its officers who sign any
Registration Statement, its other officers, employees and agents and each Person
37
who controls the Company within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act) from and against any losses, claims, damages,
liabilities and expenses (including reasonable counsel fees and expenses)
arising out of or relating to any untrue or alleged untrue statement of a
material fact contained in any Registration Statement or Prospectus (as amended
or supplemented if such Holder shall have furnished any amendments or
supplements thereto) or in any preliminary Prospectus or any omission or alleged
omission to state therein a material fact required to be stated or necessary to
make the statements therein (in the case of a Prospectus, in the light of the
circumstances under which they were made) not misleading, to the extent, but
only to the extent, that such untrue statement or omission is contained in or
arises from any information or undertaking so furnished in writing by such
Holder to the Company expressly for inclusion in such Registration Statement or
Prospectus, or any amendment or supplement thereto, or any preliminary
Prospectus.
(b) The Company shall be entitled to receive indemnities from underwriters,
selling brokers, dealer managers and similar securities industry professionals
participating in the distribution to the same extent as provided in Section
6.02(a) herein with respect to information~so furnished in writing by such
Persons specifically for inclusion in any Registration Statement or Prospectus,
or any amendment or supplement thereto, or any preliminary Prospectus.
38
SECTION 6.03. Delivery of Prospectus. The indemnity provisions in Sections
----------------------
6.01 and 6.02 above are subject to the condition that, insofar as they relate to
any untrue statement (or alleged untrue statement) or omission (or alleged
omission) made in a preliminary Prospectus or Prospectus but eliminated or
remedied in any amended Prospectus on file with the SEC at the time the
registration statement becomes effective or any amended prospectus filed with
the SEC pursuant to Rule 424(b) or 424(c) (the "Final Prospectus"), such
indemnity provisions shall not inure to the benefit of any Selling Holder if
such Selling Holder is not selling Registrable Securities through an
underwriter, if the Company has previously delivered copies of such Final
Prospectus to an underwriter or Selling Holder and if a copy of the Final
Prospectus was not furnished to the Person or entity asserting the loss,
liability, claim or damage at or prior to the time such action is required by
the Securities Act.
SECTION 6.04. Conduct of Indemnification Proceedings. Any Person entitled
--------------------------------------
to indemnification hereunder (the "indemnified party") shall (i) give prompt
----------- -----
notice to the Person against whom such indemnity is sought (the "indemnifying
------------
party") of any claim with respect to which such indemnification is sought and
-----
(ii) permit such indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to the indemnified party; provided, however,
-----------------
that any indemnified party entitled to indemnification hereunder shall have the
right to employ separate counsel and to participate in the defense of such
claim, but the
39
fees and expenses of such counsel shall be at the expense of such indemnified
party unless (a) the indemnifying party has agreed to pay such fees or expenses,
(b) the indemnifying party shall have failed to assume the defense of such claim
and employ counsel reasonably satisfactory to such indemnified party or (c) in
the reasonable judgment of the indemnified party and the indemnifying party,
based upon advice of their respective counsel, a conflict of interest may exist
between such indemnified party and the indemnifying party with respect to such
claims (in which case, if the indemnified party notifies the indemnifying party
in writing that such indemnified party elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such claim on behalf of such indemnified party).
If such defense is not assumed by the indemnifying party, the indemnifying party
shall not be subject to any liability for any settlement made without its
consent (but such consent shall not be unreasonably withheld). No indemnifying
party shall consent to entry of any judgment or enter into any settlement which
does not include as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a release from all liability in respect
to such claim or litigation. An indemnifying party who is not entitled to, or
elects not to, assume the defense of a claim shall not be obligated to pay the
fees and expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless, in the reasonable
judgment of any indemnified party, a conflict of
40
interest may exist between such indemnified party and any other of such
indemnified parties with respect to such claim, in which event the indemnifying
party shall be obligated to pay the fees and expenses of such additional
counsel or counsels.
SECTION 6.05. Contribution. (a) If the indemnification provided for in this
------------
Article VI from the indemnifying party is unavailable to an indemnified party
hereunder in respect of any losses, claims, damages, liabilities or expenses
referred to therein, then the 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 losses, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect the relative fault of
the indemnifying party and indemnified parties in connection with the actions
which resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The relative fault of such
indemnifying party and indemnified parties shall 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 or alleged omission to
state a material fact, has been made by, or relates to information supplied by
or omitted to be supplied by, such indemnifying party and indemnified parties,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such action. The amount paid or payable by a
party as a result of the losses, claims, damages, liabilities and expenses
referred to above shall be deemed to include, subject to
41
the limitations set forth in Section 6.04, any legal or other fees or expenses
reasonably incurred by such party in connection with any investigation or
proceeding.
(b) The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 6.05 were determined by pro rata
allocation or by any other method of allocation which does not take into account
the equitable considerations referred to in Section 6.05(a). No Person guilty of
fraudulent misrepresentation (within the meaning of Section ll(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
ARTICLE VII
RULE 144 and 145
----------------
SECTION 7.01. Rule 144 and 145. The Company shall use its best efforts to
----------------
take such action as any Holder may reasonably request, all to the extent
required from time to time during the term of this Agreement, to enable such
Holder to lawfully sell Registrable Securities publicly without registration
under the Securities Act, including within the limitation of the regulatory
exemption provided by (a) Rules 144 and 145 under the Securities Act, as such
Rule may be amended from time to time, or (b) any similar rule or regulation
hereafter adopted by the SEC. Each Holder agrees to provide the Company prior
written notice and such written information as the Company may reasonably
request within 10 days after receipt of such notice, including representations
by the Holder in respect of the Holder's holdings, offers and sales of
42
Company Common Stock and the Holder's compliance with the requirements of any
statutory or regulatory exemption from registration, prior to effecting any
public offer or sale of Registrable Securities without registration under the
Securities Act.
ARTICLE VIII
SELECTION OF UNDERWRITERS, COMPLIANCE
-------------------------------------
WITH REQUIREMENTS
-----------------
SECTION 8.01. In any Demand Registration, the Holder or Holders requesting
the demand pursuant to Section 2.01(a) shall have the right to select the
investment banker or bankers and managers or selling broker, as the case may be,
to administer the offering; provided, however, that such investment bankers and
-------- -------
managers or selling broker, as the case may be, must be reasonably satisfactory
to the Company and any Demand Piggybacker.
SECTION 8.02. No Person may participate in any registration hereunder
unless such Person (a) agrees to sell such Person's securities on the basis
provided in any 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
required under the terms of such arrangements.
ARTICLE IX
EXPENSES
--------
SECTION 9.01. Registration Expenses. The Company shall have no obligation
---------------------
for the out-of-pocket expenses of any Selling Holder in
43
connection with any registration undertaken pursuant to this Agreement. Except
as provided in Section 5.04 and by the next sentence, all Registration Expenses
incurred in connection with each Registration Statement pursuant to Article II
of this Agreement shall be paid pro rata by the Selling Holders thereunder on
the basis of the number of Shares sought to be registered by each such Selling
Holder. Except as provided in Section 5.04, all Registration Expenses incurred
in connection with one Registration Statement for each Holder making Demand
under Article II, and with each Registration Statement pursuant to Article III,
shall be paid by the Company or in the case of an Article III offering involving
a securityholder (other than a Selling Holder) initiating the registration, by
such securityholder. In addition, a Demand or Incidental Piggybacker shall have
no obligation for any Registration Expenses where the Company or a
securityholder (other than a Selling Holder) is required to pay such expenses by
the foregoing provisions. All underwriting discounts and commissions and
transfer taxes, if any, incurred in connection with any offering hereunder shall
be paid by the sellers thereunder based upon the ratio of the number of shares
of Company Common Stock to the total number of shares of Company Common Stock in
the offering.
ARTICLE X
GENERAL PROVISIONS
------------------
SECTION 10.01. No Inconsistent Agreements. The Company shall not, on or
--------------------------
after the date of this Agreement, enter into any agreement with respect to its
securities which will prohibit or
44
materially hinder the Company's performance hereunder; provided, however, that
nothing in this provision shall be deemed to prohibit the Company's grant of or
any Person's (other than a Holder's) exercise of registration rights.
SECTION 10.02. Duration of Registration Rights, Survival of Other
--------------------------------------------------
Obligations. In the case of a Holder who is a Shareholder, the registration
-----------
rights provided for in Article II and Article III shall survive as long as the
Shareholder shall hold Registrable Securities. In the case of a Permitted
Transferee, the registration rights provided for by this Agreement obtained by
such Permitted Transferee, if any, shall terminate five years after the Transfer
Date, in the case of a registration pursuant to Article II, and ten years after
the Transfer Date, in the case of a registration pursuant to Article III.
SECTION 10.03. Notices, Designation of Xxxx Group Representative. All
-------------------------------------------------
notices and other communications given or made pursuant hereto shall be in
writing (including telecopier or facsimile or similar writing) and shall be
deemed to have been duly given or made as of the date (a) delivered (if
delivered personally), (b) mailed by certified mail (postage prepaid, return
receipt requested) if mailed, or (c) the date sent by telecopier to the parties
at the following addresses or telecopier numbers (or at such other address or
telecopier number for a party as shall be specified by like notice, except that
notices of changes of address or telecopier numbers shall be effective only upon
receipt):
45
(a) if to the Company:
Arch Mineral Corporation
Xxxxx 000
XxxxXxxxx Xxx
Xx. Xxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: General Counsel
(After the Effective Time, notices shall be directed to "Arch Coal,
Inc." instead of "Arch Mineral Corporation".)
(b) if to Ashland Inc.:
Ashland Inc.
X.X. Xxx 000
Xxxxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: General Counsel
(c) if to Carboex:
Carboex International, Ltd.
Xxxxx Xxxxx
X.X. Xxx X-0000
Xxxxxx, Bahamas
Telecopier No.: ______________
Attention: ___________________
(d) if to the Xxxx Entities or the Xxxx Piggybackers:
Xxxx Coal Corporation
5000 Thanksgiving Tower
0000 Xxx Xxxxxx
Xxxxxx, Xxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, President
with additional notice in the case of notice to the Xxxx Entities:
Xxxxx-Xxxx Corporation
3800 Thanksgiving Tower
0000 Xxx Xxxxxx
Xxxxxx, Xxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxx X. Xxxx, President
Whenever acting as a Xxxx Group as provided for in this Agreement, and without
affecting any other requirements of this Agreement
46
other than in respect of the timing and content of notices to and from the Xxxx
Entities comprising such Xxxx Group, the Xxxx Entities comprising such Xxxx
Group shall furnish the Company a written designation of the Xxxx Entity and
counsel representing such Xxxx Group, executed by each Xxxx Entity comprising
said Xxxx Group, which designation shall include a representation by each Xxxx
Entity in said Xxxx Group of such Xxxx Entity's holdings of Company Common Stock
at the time of designation in order to permit the Company to ascertain that the
Xxxx Entities so acting in fact comprise a Xxxx Group. The designation also
shall specify an address for notice to said Xxxx Group and its counsel during
the period such Xxxx Group shall be exercising any rights under this Agreement.
Once a designation in proper form is received by the Company, the Company shall
be relieved of any obligation under this Agreement to communicate separately
with the Xxxx Entities comprising such Xxxx Group, and the Xxxx Entities
comprising such Xxxx Group shall be relieved of any individual obligations under
this Agreement to communicate with the Company, in each case until such time as
all Xxxx Entities initially comprising such Xxxx Group have disposed of their
Company Common Stock in the subject offering and/or the subject Registration
Statement is no longer effective, including by withdrawal thereof. The written
designation described herein shall be delivered with the first notice or
communication in respect of such Xxxx Group's exercise of rights under this
Agreement, it being understood that the Company is under no obligation to act
and no time periods for acting specified in this
47
Agreement shall begin to run unless and until the Company has received a written
designation meeting the requirements of this Section. The Xxxx Piggybackers
acknowledge and agree that notice to Xxxx Coal Corporation as provided for above
shall be sufficient notice to all of them for all purposes under this Agreement,
and each of the Company, AI, Carboex and the Xxxx Entities is entitled to rely
upon any communication, representation or agreement made by said Xxxx Coal
Corporation expressly on behalf of any Xxxx Piggybacker as being the
communication, representation or agreement of such Xxxx Piggybacker.
SECTION 10.04. 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 10.05. Severability. If any term or other provision of this
------------
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in a mutually acceptable manner in
order that the transactions contemplated hereby be consummated as originally
contemplated to the greatest extent possible.
48
SECTION 10.06. 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, and
except as otherwise expressly provided herein.
SECTION 10.07. Amendment; Waiver. This Agreement may not be amended or
-----------------
modified except by an instrument in writing signed by the Company and each
Holder. Waiver of any term or condition of this Agreement shall only be
effective if in writing and shall not be construed as a waiver of any subsequent
breach or waiver of the same term or condition, or a waiver of any other term or
condition of this Agreement.
SECTION 10.08. Successors, Assigns and Transferees. This Agreement shall be
-----------------------------------
binding upon and shall inure to the benefit of the parties hereto and their
respective permitted successors and assigns. In addition, and whether or not any
express assignment shall have been made, the provisions of this Agreement which
are for the benefit of the parties hereto other than the Company shall also be
for the benefit of and enforceable by any Permitted Transferee thereof, subject
to the provisions contained herein.
SECTION 10.09. Governing Law. This Agreement shall be governed by, and
-------------
construed in accordance with, the laws of the State of Delaware applicable to
contracts executed in and to be performed in that State.
SECTION 10.10. Counterparts; Copies in Electronic Medium. This Agreement
-----------------------------------------
may be executed in one or more counterparts, and by the
49
different parties hereto in separate counterparts, each of which when executed
shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
SECTION 10.11. Specific Performance. The parties hereto acknowledge and
--------------------
agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. Accordingly, it is agreed that they
shall be entitled to an injunction or injunctions to prevent breaches of the
provisions of this Agreement and to enforce specifically the terms and
provisions hereof in any court of competent jurisdiction in the United States or
any state thereof, in addition to any other remedy to which they may be entitled
at law or equity.
IN WITNESS WHEREOF, the Company and the Shareholders have caused this
Agreement to be executed as of the date first written above in their individual
capacities or by their respective representatives thereunto duly authorized, as
applicable.
ARCH MINERAL CORPORATION
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
ASHLAND INC.
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President,
General Counsel and Secretary
50
CARBOEX INTERNATIONAL, LTD.
By: /s/ Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: Director
XXXXX XXXX CORPORATION
By: /s/ Xxxxx X. Xxxx
Xxxxx X. Xxxx, President
XXXX XXXX-XXXXXXXX TRUST -
XX X. XXXX, XX.
By:
---------------------------
Xxxxxxxx Xxxx Xxxx, Trustee
By: /s/ Xxx Xxxx, Trustee
Xxx Xxxx, Trustee
By: /s/ Xxxxx X. Xxxxxx, Trustee
Xxxxx X. Xxxxxx, Trustee
XXXX XXXX-XXXXXXXX TRUST -
XXXXXX XXXX HILL
By:
---------------------------
Xxxxxxxx Xxxx Xxxx, Trustee
By: /s/ Xxx Xxxx, Trustee
Xxx Xxxx, Trustee
By: /s/ Xxxxx X. Xxxxxx, Trustee
Xxxxx X. Xxxxxx, Trustee
XXXX XXXX-XXXXXXXX TRUST -
XXXX XXXX
By:
---------------------------
Xxxxxxxx Xxxx Xxxx, Trustee
By: /s/ Xxx Xxxx, Trustee
Xxx Xxxx, Trustee
By: /s/ Xxxxx X. Xxxxxx, Trustee
Xxxxx X. Xxxxxx, Trustee
51
XXXX COAL CORPORATION
By: /s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx, President
XXXX XXXX-XXXXXXX TRUST -
XXXXXXX X. XXXX
By: /s/ Xxxxxx X. Xxxxx, Trustee
Xxxxxx X. Xxxxx, Trustee
By: /s/ Gage X. Xxxxxxxx, Xx., Trustee
Gage X. Xxxxxxxx, Xx., Trustee
XXXX XXXX-XXXXXXX TRUST -
XXXXXXX X. XXXX
By: /s/ Xxxxxx X. Xxxxx, Trustee
Xxxxxx X. Xxxxx, Trustee
By: /s/ Gage X. Xxxxxxxx, Xx., Trustee
Gage X. Xxxxxxxx, Xx., Trustee
XXXX XXXX-XXXXXXX TRUST -
XXXX X. XXXX
By: /s/ Xxxxxx X. Xxxxx, Trustee
Xxxxxx X. Xxxxx, Trustee
By: /s/ Gage X. Xxxxxxxx, Xx., Trustee
Gage X. Xxxxxxxx, Xx., Trustee
XXXX XXXX-XXXXXXX TRUST -
XXXXX X. XXXX
By: /s/ Xxxxxx X. Xxxxx, Trustee
Xxxxxx X. Xxxxx, Trustee
By: /s/ Gage X. Xxxxxxxx, Xx., Trustee
Gage X. Xxxxxxxx, Xx., Trustee
52
XXXX XXXX-XXXXXXX TRUST -
XXXXX X. XXXX
By: /s/ Xxxxxx X. Xxxxx, Trustee
Xxxxxx X. Xxxxx, Trustee
By: /s/ Gage X. Xxxxxxxx, Xx., Trustee
Gage X. Xxxxxxxx, Xx., Trustee
XXXX XXXX-XXXXXXXX TRUST -
XXXX XXXXXX SANDS
By: /s/ Xxx X. Xxxxx, Trustee
Xxx X. Xxxxx, Trustee
By: /s/ Xxxxxxxx Xxxx Xxxx, Trustee
Xxxxxxxx Xxxx Xxxx, Trustee
By: /s/ Xxxxxxx X. Xxxx, Trustee
Xxxxxxx X. Xxxx, Trustee
XXXX XXXX-XXXXXXXX TRUST -
XXXXX XXXXX XXXXX
By: /s/ Xxx X. Xxxxx, Trustee
Xxx X. Xxxxx, Trustee
By: /s/ Xxxxxxxx Xxxx Xxxx, Trustee
Xxxxxxxx Xxxx Xxxx, Trustee
By: /s/ Xxxxxxx X. Xxxx, Trustee
Xxxxxxx X. Xxxx, Trustee
XXXX XXXX-XXXXXXXX TRUST -
XXXXXXX X. XXXXX
By: /s/ Xxx X. Xxxxx, Trustee
Xxx X. Xxxxx, Trustee
By: /s/ Xxxxxxxx Xxxx Xxxx, Trustee
Xxxxxxxx Xxxx Xxxx, Trustee
By: /s/ Xxxxxxx X. Xxxx, Trustee
Xxxxxxx X. Xxxx, Trustee
53
XXXX XXXX-XXXXXXXX TRUST -
XXXXXX XXXXX
By: /s/ Xxx X. Xxxxx, Trustee
Xxx X. Xxxxx, Trustee
By: /s/ Xxxxxxxx Xxxx Xxxx, Trustee
Xxxxxxxx Xxxx Xxxx, Trustee
By: /s/ Xxxxxxx X. Xxxx, Trustee
Xxxxxxx X. Xxxx, Trustee
XXXX XXXX-XXXXXXXX TRUST -
XXXXXXX XXXXX XXXXX
By: /s/ Xxx X. Xxxxx, Trustee
Xxx X. Xxxxx, Trustee
By: /s/ Xxxxxxxx Xxxx Xxxx, Trustee
Xxxxxxxx Xxxx Xxxx, Trustee
By: /s/ Xxxxx X. Xxxxx, Trustee
Xxxxx X. Xxxxx, Trustee
ROSEWOOD RESOURCES, INC.
By: /s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx, President
XXXX XXXX-XXXXXX TRUST -
HOUSTON X. XXXX
By: /s/ X. X. Xxxxxxx, Trustee
X. X. Xxxxxxx, Trustee
By:
----------------------------
X. X. Xxxxxx, Trustee
By: /s/ Xxxx X. Hope, Trustee
Xxxx X. Hope, Trustee
54
XXXX XXXX-XXXXXX TRUST -
XXXXXXXXX X. XXXX
By: /s/ X. X. Xxxxxxx, Trustee
X. X. Xxxxxxx, Trustee
By:
----------------------------
X. X. Xxxxxx, Trustee
By: /s/ Xxxx X. Hope, Trustee
Xxxx X. Hope, Trustee
XXXX XXXX-XXXXXX TRUST -
XXXXX X. XXXX
By: /s/ X. X. Xxxxxxx, Trustee
X. X. Xxxxxxx, Trustee
By:
----------------------------
X. X. Xxxxxx, Trustee
By: /s/ Xxxx X. Hope, Trustee
Xxxx X. Hope, Trustee
XXXXXX XXXXXX XXXX TRUST ESTATE
By: /s/ X. X. Xxxxxxx, Trustee
X. X. Xxxxxxx, Trustee
By:
----------------------------
Xxxxxx X. Xxxxxx, Advisory
Board
By: /s/ Xxxxxx X. X'Xxxxxxxx
X. X'Xxxxxxxx, Advisory
Board
XXXX XXXX-XXXXX TRUST -
XXXXX XXXX
By: /s/ J.R. Holland, Jr.
J. R. Holland, Jr., Trustee
By: /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, Trustee
55
XXXX XXXX-XXXXX TRUST -
XXXXX XXXX, JR.
By: /s/ J. R. Holland, Jr.
J. R. Holland, Jr., Trustee
By: /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, Trustee
XXXX XXXX-XXXXX TRUST -
XXXXX X. XXXX
By: /s/ J. R. Holland, Jr.
J. R. Holland, Jr., Trustee
By: /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, Trustee
XXXX XXXX-XXXXX TRUST -
XXXXXX X. XXXX
By: /s/ J. R. Holland, Jr.
J. R. Holland, Jr., Trustee
By: /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, Trustee
XXXX XXXX-XXXXX TRUST -
XXXXXX X. XXXX
By: /s/ J. R. Holland, Jr.
J. R. Holland, Jr., Trustee
By: /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, Trustee
56
XXXXX XXXX TRUST ESTATE
By: /s/ J. R. Holland, Jr.
J. R. Holland, Jr., Trustee
By: /s/ Xxxxx Xxxxx
Xxxxx Xxxxx, Advisory Board
57
Schedule I
----------
Xxxx Xxxx-Xxxxxxxx Trust - Xxxxxxx X. Xxxx
Xxxx Xxxx-Xxxxxxxx Trust - Xxxxxxx X. Xxxx
Xxxx Xxxx-Xxxxxxxx Trust - Xxxx X. Xxxx
Xxxx Xxxx-Xxxxxxxx Trust - Xxxxx X. Xxxx
Xxxx Xxxx-Xxxxxxxx Trust - Xxxxx X. Xxxx
Xxxxx-Xxxx Corporation
Xxxx Xxxx-Xxxxxxxx Trust - Xx X. Xxxx, Xx.
Xxxx Xxxx-Xxxxxxxx Trust - Xxxx Xxxx
Xxxx Xxxx-Xxxxxxxx Trust - Xxxxxx Xxxx Hill
Xxxx Coal Corporation
Schedule II
-----------
Xxxx Xxxx-Xxxxxxxx Trust - Xxxx Xxxxxx Sands
Xxxx Xxxx-Xxxxxxxx Trust - Xxxxx Xxxxx Xxxxx
Xxxx Xxxx-Xxxxxxxx Trust - Xxxxxxx X. Xxxxx
Xxxx Xxxx-Xxxxxxxx Trust - Xxxxxx Xxxxx
Xxxx Xxxx-Xxxxxxxx Trust - Xxxxxxx Xxxxx Xxxxx
Rosewood Resources, Inc.
Xxxx Xxxx-Xxxxxx Trust - Houston X. Xxxx
Xxxx Xxxx-Xxxxxx Trust - Xxxxxxxxx X. Xxxx
Xxxx Xxxx-Xxxxxx Trust - Xxxxx X. Xxxx
Xxxxxx Xxxxxx Xxxx Trust Estate
Xxxx Xxxx-Xxxxx Trust - Xxxxx Xxxx
Xxxx Xxxx-Xxxxx Trust - Xxxxx Xxxx, Jr.
Xxxx Xxxx-Xxxxx Trust - Xxxxx X. Xxxx
Xxxx Xxxx-Xxxxx Trust - Xxxxxx X. Xxxx
Xxxx Xxxx-Xxxxx Trust - Xxxxxx X. Xxxx
Xxxxx Xxxx Trust Estate
