REGISTRATION RIGHTS AGREEMENT
Exhibit
10(aa)
by
and among
ATLAS
ENERGY RESOURCES, LLC
and
THE
PURCHASERS NAMED HEREIN
TABLE
OF CONTENTS
| Page | ||||
| Article I DEFINITIONS | 1 | |||
|
Section 1.01
|
Definitions. | 1 | ||
|
Section 1.02
|
Registrable Securities. | 3 | ||
| Article II REGISTRATION RIGHTS | 3 | |||
|
Section 2.01
|
Registration. | 5 | ||
|
Section 2.02
|
Piggyback Rights. | 5 | ||
|
Section 2.03
|
Underwritten Offering. | 7 | ||
|
Section 2.04
|
Sale Procedures. | 8 | ||
|
Section 2.05
|
Cooperation by Holders. | 12 | ||
|
Section 2.06
|
Restrictions on Public Sale by Holders of Registrable Securities. | 12 | ||
|
Section 2.07
|
Expenses. | 12 | ||
|
Section 2.08
|
Indemnification. | 13 | ||
|
Section 2.09
|
Rule 144 Reporting. | 15 | ||
|
Section 2.10
|
Transfer or Assignment of Registration Rights. | 15 | ||
|
Section 2.11
|
Limitation on Subsequent Registration Rights. | 16 | ||
| Article III MISCELLANEOUS | 16 | |||
|
Section 3.01
|
Communications. | 16 | ||
|
Section 3.02
|
Successor and Assigns. | 16 | ||
|
Section 3.03
|
Aggregation of Purchased Class D Units and Purchased Units. | 16 | ||
|
Section 3.04
|
Recapitalization, Exchanges, Etc. Affecting the Units. | 16 | ||
|
Section 3.05
|
Change of Control | 17 | ||
|
Section 3.06
|
Specific Performance. | 17 | ||
|
Section 3.07
|
Counterparts. | 17 | ||
|
Section 3.08
|
Headings. | 17 | ||
|
Section 3.09
|
Governing Law. | 17 | ||
|
Section 3.10
|
Severability of Provisions. | 17 | ||
|
Section 3.11
|
Entire Agreement. | 17 | ||
|
Section 3.12
|
Amendment. | 17 | ||
|
Section 3.13
|
No Presumption. | 18 | ||
|
Section 3.14
|
Obligations Limited to Parties to Agreement. | 18 | ||
THIS
REGISTRATION RIGHTS AGREEMENT
(this “Agreement”) is made and entered into as of June 29, 2007 by
and among Atlas Energy Resources, LLC, a Delaware limited liability company
(“Atlas Energy”), and each of the Purchasers set forth in Exhibit A
(each, a “Purchaser” and, collectively, the “Purchasers”).
WHEREAS,
this Agreement is made in
connection with the Closing of the issuance and sale of the Purchased Class
D
Units and the Purchased Units pursuant to the Class D Unit and Common Unit
Purchase Agreement, dated as of May 18, 2007, by and among Atlas Energy and
the Purchasers (the “Purchase Agreement”);
WHEREAS,
Atlas Energy has agreed to
provide the registration and other rights set forth in this Agreement for the
benefit of the Purchasers pursuant to the Purchase Agreement; and
WHEREAS,
it is a condition to the
obligations of each Purchaser and Atlas Energy under the Purchase Agreement
that
this Agreement be executed and delivered.
NOW
THEREFORE, in consideration of
the mutual covenants and agreements set forth herein and for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged
by
each party hereto, the parties hereby agree as follows:
ARTICLE
I
DEFINITIONS
Section 1.01
Definitions. Capitalized terms used herein without definition shall
have the meanings given to them in the Purchase Agreement. The terms set
forth below are used herein as so defined:
“Agreement”
has
the meaning
specified therefor in the introductory paragraph.
“Atlas
Energy” has the
meaning specified therefor in the introductory paragraph.
“Effectiveness
Period” has
the meaning specified therefor in Section 2.01(a)(i) of this Agreement.
“File
Date” has the meaning
specified therefor in Section 2.01(a)(i) of this Agreement.
“Holder”
means
the record
holder of any Registrable Securities.
“Included
Registrable
Securities” has the meaning specified therefor in Section 2.02(a) of
this Agreement.
“Liquidated
Damages” has the
meaning specified therefor in Section 2.01(a)(ii) of this Agreement.
“Liquidated
Damages
Multiplier” means the product of $25.00 times the number of Class D Units
and Purchased Units purchased by such Purchaser.
“Losses”
has
the meaning
specified therefor in Section 2.08 of this Agreement.
“Managing
Underwriter” means,
with respect to any Underwritten Offering, the book-running lead manager of
such
Underwritten Offering.
“Opt
Out Notice” has the
meaning specified therefor in Section 2.02(a) of this Agreement.
“Purchase
Agreement” has the
meaning specified therefor in the recitals of this Agreement.
“Purchaser”
and
“Purchasers” have the meanings specified therefor in the introductory
paragraph of this Agreement.
“Purchaser
Underwriter
Registration Statement” has the meaning specified therefor in
Section 2.04(n) of this Agreement.
“Registrable
Securities”
means: (i) the Purchased Units, (ii) Purchased Class D Units,
(iii) the Common Units issuable upon conversion of the Purchased Class D
Units, (iii) any Common Units or Class D Units issued as Liquidated Damages
pursuant to this Agreement, (iv) any Common Units issuable upon conversion
of Class D Units issued as Liquidated Damages pursuant to this Agreement,
(v) any Common Units or Class D Units issuable pursuant to
Section 5.02 of the Purchase Agreement, and (vi) any Common Units
issuable upon conversion of Class D Units issuable pursuant to Section 5.02
of the Purchase Agreement, all of which Registrable Securities are subject
to
the rights provided herein until such rights terminate pursuant to the
provisions hereof.
“Registration
Expenses” has
the meaning specified therefor in Section 2.07(a) of this Agreement.
“Registration
Statement” has
the meaning specified therefor in Section 2.01(a)(i) of this Agreement.
“Selling
Expenses” has the
meaning specified therefor in Section 2.07(a) of this Agreement.
“Selling
Holder” means a
Holder who is selling Registrable Securities pursuant to a registration
statement.
“Target
Effective Date” has
the meaning specified therefor in Section 2.01(a)(i) of this Agreement.
“Underwritten
Offering” means
an offering (including an offering pursuant to a Registration Statement) in
which Units are sold to an underwriter on a firm commitment basis
2
for
reoffering to the public or an
offering that is a “bought deal” with one or more investment banks.
Section 1.02
Registrable
Securities. Any Registrable Security will cease to be a Registrable
Security when: (a) a registration statement covering such Registrable
Security is effective and such Registrable Security has been sold or disposed
of
pursuant to such effective registration statement; (b) such Registrable
Security has been disposed of pursuant to any section of Rule 144 (or any
similar provision then in force) under the Securities Act; (c) two years
after the Closing Date; (d) such Registrable Security is held by Atlas
Energy or one of its Subsidiaries; or (e) such Registrable Security has
been sold in a private transaction in which the transferor’s rights under this
Agreement are not assigned to the transferee of such securities.
ARTICLE
II
REGISTRATION
RIGHTS
Section 2.01
Registration.
(a)
Registration.
(i)
Deadline
To File and Go
Effective. As soon as practicable following January 1, 2008, but
in any event prior to January 31, 2008 (the “File Date”), Atlas
Energy shall prepare and file a registration statement under the Securities
Act
to permit the resale of the Registrable Securities from time to time, including
as permitted by Rule 415 under the Securities Act (or any similar provision
then
in force), with respect to all of the Registrable Securities (the
“Registration Statement”). Atlas Energy shall use its commercially
reasonable efforts to cause the Registration Statement to become effective
no
later than May 30, 2008 (the “Target Effective Date”). A
Registration Statement filed pursuant to this Section 2.01 shall be on Form
S-3 under the Securities Act. Atlas Energy will use its commercially
reasonable efforts to cause the Registration Statement filed pursuant to this
Section 2.01 to be continuously effective under the Securities Act until
the earlier of (i) the date as of which all such Registrable Securities are
sold by the Purchasers and (ii) two years following the Closing Date (the
“Effectiveness Period”). The Registration Statement when effective
(including the documents incorporated therein by reference) shall comply as
to
form with all applicable requirements of the Securities Act and the Exchange
Act
and shall not contain an untrue statement of a material fact or omit to state
a
material fact required to be stated therein or necessary to make the statements
therein not misleading.
(ii)
Failure
To Go
Effective. If the Registration Statement required by Section 2.01
is not effective by the Target Effective Date, then each Purchaser shall be
entitled to a payment with respect to such Purchaser’s Registrable Securities,
as liquidated damages and not as a penalty, of 0.25% of the Liquidated Damages
Multiplier per 30-day period for the first 30 days following the Target
Effective Date, increasing by an additional 0.25% of the Liquidated Damages
Multiplier per 30-day period for each subsequent 30 days, up to a maximum of
1.00% of the Liquidated Damages Multiplier per 30-day period (the “Liquidated
Damages”). The Liquidated Damages payable pursuant to the immediately
preceding sentence shall be payable within ten Business Days of the end of
each
such 30-day period. Liquidated Damages for any period of less than 30-days
shall be prorated by multiplying Liquidated Damages to be paid in a full 30-day
period by a fraction, the numerator of which is the number of days for which
3
Liquidated
Damages are owed, and the
denominator of which is 30. Any Liquidated Damages shall be paid to each
Purchaser in cash or immediately available funds; provided,
however, if Atlas Energy certifies that it is unable to pay Liquidated
Damages in cash or immediately available funds because such payment would result
in a breach under any of Atlas Energy’s or Atlas Energy’s Subsidiaries’ credit
facilities or other indebtedness filed as exhibits to the Atlas Energy SEC
Documents, then Atlas Energy may pay the Liquidated Damages in kind in the
form
of the issuance of additional (A) Common Units or (B) Common Units or
Class D Units. Class D Units may only be issued as Liquidated Damages if
and to the extent Atlas Energy is restricted from issuing Common Units pursuant
to the rules of The New York Stock Exchange or similar regulation. If Class
D Units are issued as Liquidated Damages as a result of a requirement by The
New
York Stock Exchange or similar regulation, then such Common Units and/or Class
D
Units will be issued to each Purchaser on a pro rata basis in such a manner
as
to maximize the number of Common Units issued to each such Purchaser. Upon
any issuance of Common Units and/or Class D Units as Liquidated Damages, Atlas
Energy shall promptly prepare and file an amendment to the Registration
Statement prior to its effectiveness adding such Common Units and/or Common
Units issuable upon conversion of Class D Units to such Registration Statement
as additional Registrable Securities. The determination of the number of
Common Units and Class D Units to be issued as Liquidated Damages shall be
equal
to the amount of Liquidated Damages divided by the volume weighted average
closing price of the Common Units (as reported by The New York Stock Exchange)
for the ten trading days immediately preceding the date on which the Liquidated
Damages payment is due, less a discount of 2%. Any obligation of Atlas
Energy to pay Liquidated Damages (other than Liquidated Damages owing but not
yet paid) to a Purchaser shall cease two years following the Closing
Date. As soon as practicable following the date that the Registration
Statement or any post-effective amendment thereto becomes effective, but in
any
event within two Business Days of such date, Atlas Energy shall provide the
Purchasers with written notice of the effectiveness of the Registration
Statement.
(iii)
Waiver
of Liquidated
Damages. If Atlas Energy is unable to cause a Registration Statement to
become effective by the Target Effective Date as a result of an acquisition,
merger, reorganization, disposition or other similar transaction, then Atlas
Energy may request a waiver of the Liquidated Damages, which may be granted
or
withheld by the consent of the Holders of two-thirds of the aggregate of the
Purchased Class D Units and the Purchased Units, voting as a single class,
in
their sole discretion.
(b)
Delay
Rights. Notwithstanding anything to the contrary contained herein,
Atlas Energy may, upon written notice to all of the Selling Holders whose
Registrable Securities are included in the Registration Statement, suspend
such
Selling Holders’ use of any prospectus which is a part of the Registration
Statement (in which event each such Selling Holder shall discontinue sales
of
the Registrable Securities pursuant to the Registration Statement) but such
Selling Holder may settle any sales of Registrable Securities, if (i) Atlas
Energy is pursuing an acquisition, merger, reorganization, disposition or other
similar transaction and Atlas Energy determines in good faith that Atlas
Energy’s ability to pursue or consummate such a transaction would be materially
adversely affected by any required disclosure of such transaction in the
Registration Statement or (ii) Atlas Energy has experienced some other
material non-public event, the disclosure of which at such time, in the good
faith judgment of Atlas Energy, would materially adversely affect Atlas Energy;
provided, however, in no event shall such Selling Holders be
suspended from selling Registrable
4
Securities
pursuant to the
Registration Statement for a period that exceeds an aggregate of 30 days in
any
90-day period or 90 days in any 365-day period. Upon disclosure of such
information or the termination of the condition described above, Atlas Energy
shall (i) provide prompt notice to the Selling Holders whose Registrable
Securities are included in the Registration Statement, (ii) promptly
terminate any suspension of sales it has put into effect and (iii) take
such other actions to permit sales of Registrable Securities as contemplated
in
this Agreement.
(c)
Additional
Rights to
Liquidated Damages. If (i) the Holders shall be prohibited from
selling their Registrable Securities under the Registration Statement as a
result of a suspension pursuant to Section 2.01(b) of this Agreement in
excess of the periods permitted therein or (ii) the Registration Statement
is filed and effective but, during the Effectiveness Period, shall thereafter
cease to be effective or fail to be usable for its intended purpose without
being succeeded by a post-effective amendment to the Registration Statement,
a
supplement to the prospectus or a report filed with the Commission pursuant
to
Section 13(a), 13(c), 14 or l5(d) of the Exchange Act, then, until the
suspension is lifted or a post-effective amendment, supplement or report is
filed with the Commission and effective, but not including any day on which
a
suspension is lifted or such amendment, supplement or report is filed and
effective, if applicable, Atlas Energy shall owe the Holders an amount equal
to
the Liquidated Damages, following (x) the date on which the suspension
period exceeded the permitted period under Section 2.01(b) of this
Agreement or (y) the date after the Registration Statement ceased to be
effective or failed to be useable for its intended purposes, as liquidated
damages and not as a penalty. For purposes of this Section 2.01(c), a
suspension shall be deemed lifted on the date that notice that the suspension
has been lifted or that a post-effective amendment is effective is delivered
to
the Holders pursuant to Section 3.01 of this Agreement.
(d)
S-1
Filing. In addition
to the rights provided in Section 2.01(a), if Atlas Energy is not eligible
to file a shelf registration statement on Form S-3 on the File Date, one or
more
Holders collectively holding greater than $25 million of Registrable Securities,
based on the Average Purchase Price, may thereafter deliver written notice
to
Atlas Energy that such Holders wish to register under the Securities Act an
aggregate of at least $25 million of Registrable Securities, based on the
Average Purchase Price specifying the amount and intended method of disposition
of such Registrable Securities. Atlas Energy will promptly give written notice
of such requested registration to all other Holders, and thereupon will, as
expeditiously as possible, use its reasonable best efforts to effect the
registration under the Securities Act of (i) such Registrable Securities
which the Company has been so requested to register by the such Holders; and
(ii) all other Registrable Securities which Atlas Energy has been requested
to register by any other Holder (which request shall specify the amount and
intended method of disposition of such Registrable Securities, including an
Underwritten Offering) to the extent necessary to permit the disposition (in
accordance with the intended method thereof as aforesaid) of the Registrable
Securities so to be registered.
Section 2.02
Piggyback
Rights.
(a)
Participation. If
at
any time Atlas Energy proposes to file (i) a shelf registration statement
other than the Registration Statement (in which event Atlas Energy covenants
and
agrees to include thereon a description of the transaction under which the
5
Purchasers
acquired the Registrable
Securities) and a prospectus supplement related to such shelf
registration, (ii) a prospectus supplement to an effective shelf
registration statement, other than the Registration Statement contemplated
by
Section 2.01 of this Agreement and Holders may be included without the
filing of a post-effective amendment thereto, or (iii) a registration
statement, other than a shelf registration statement, in any case, for
the sale of Common Units in an Underwritten Offering for its own account and/or
another Person, then as soon as practicable but not less than three Business
Days prior to the filing of (x) any preliminary prospectus supplement
relating to such Underwritten Offering pursuant to Rule 424(b) under the
Securities Act, (y) the prospectus supplement relating to such Underwritten
Offering pursuant to Rule 424(b) under the Securities Act (if no preliminary
prospectus supplement is used) or (z) such registration statement (only
in respect of clause (iii) above for purposes of this clause (z)), as
the case may be, then Atlas Energy shall give notice (including, but not limited
to, notification by electronic mail) of such proposed Underwritten Offering
to
the Holders and such notice shall offer the Holders the opportunity to include
in such Underwritten Offering such number of Common Units (the “Included
Registrable Securities”) as each such Holder may request in writing;
provided, however, that if Atlas Energy has been advised by the
Managing Underwriter that the inclusion of Registrable Securities for sale
for
the benefit of the Holders will have a material adverse effect on the price,
timing or distribution of the Common Units in the Underwritten Offering, then
the amount of Registrable Securities to be offered for the accounts of Holders
shall be determined based on the provisions of Section 2.02(b) of this
Agreement. The notice required to be provided in this Section 2.02(a)
to Holders shall be provided on a Business Day pursuant to Section 3.01
hereof and receipt of such notice shall be confirmed by such Holder. Each
such Holder shall then have three Business Days after receiving such notice
to
request inclusion of Registrable Securities in the Underwritten
Offering. If no request for inclusion from a Holder is received within the
specified time, such Holder shall have no further right to participate in such
Underwritten Offering. If, at any time after giving written notice of its
intention to undertake an Underwritten Offering and prior to the closing of
such
Underwritten Offering, Atlas Energy shall determine for any reason not to
undertake or to delay such Underwritten Offering, Atlas Energy may, at its
election, give written notice of such determination to the Selling Holders
and,
(x) in the case of a determination not to undertake such Underwritten
Offering, shall be relieved of its obligation to sell any Included Registrable
Securities in connection with such terminated Underwritten Offering, and
(y) in the case of a determination to delay such Underwritten Offering,
shall be permitted to delay offering any Included Registrable Securities for
the
same period as the delay in the Underwritten Offering. Any Selling Holder
shall have the right to withdraw such Selling Holder’s request for inclusion of
such Selling Holder’s Registrable Securities in such offering by giving written
notice to Atlas Energy of such withdrawal up to and including the time of
pricing of such offering. Each Holder’s rights under this
Section 2.02(a) shall terminate when such Holder (together with any
Affiliates of such Holder) holds less than $15 million, in aggregate, of
Registrable Securities, based on the Average Purchase
Price. Notwithstanding the foregoing, any Holder may deliver written notice
(an “Opt Out Notice”) to Atlas Energy requesting that such Holder not
receive notice from Atlas Energy of any proposed Underwritten Offering;
provided, that such Holder may later revoke any such notice.
(b)
Priority
of
Rights. If the Managing Underwriter or Underwriters of any proposed
Underwritten Offering of Common Units included in an Underwritten Offering
involving Included Registrable Securities advises Atlas Energy, or Atlas Energy
reasonably determines, that the total amount of Registrable Securities that
the
Selling Holders and any other Persons intend to include
6
in
such offering exceeds the number
that can be sold in such offering without being likely to have a material
adverse effect on the price, timing or distribution of the Common Units offered
or the market for the Common Units, then the Registrable Securities to be
included in such Underwritten Offering shall include the number of Registrable
Securities that such Managing Underwriter or Underwriters advises Atlas Energy,
or Atlas Energy reasonably determines, can be sold without having such adverse
effect, with such number to be allocated (i) first, to Atlas Energy, and
(ii) second, pro rata among the Selling Holders who have requested
participation in such Underwritten Offering. The pro rata allocations for
each such Selling Holder shall be the product of (a) the aggregate number
of Registrable Securities proposed to be sold by all Selling Holders in such
Underwritten Offering multiplied by (b) the fraction derived by dividing
(x) the number of Registrable Securities owned on the Closing Date by such
Selling Holder by (y) the aggregate number of Registrable Securities owned
on the Closing Date by all Selling Holders participating in the Underwritten
Offering. All participating Selling Holders shall have the opportunity to
share pro rata that portion of such priority allocable to any Selling Holder(s)
not so participating.
Section 2.03
Underwritten
Offering.
(a)
Request
for Underwritten
Offering. In the event that one or more Holders collectively holding greater
than $75 million of Registrable Securities, based on the Average Purchase Price,
elect to dispose of Registrable Securities under the Registration Statement
(including a registration statement pursuant to Section 2.01(d)) pursuant
to an Underwritten Offering, Atlas Energy shall retain underwriters, effect
such
sale though an Underwritten Offering, including entering into an underwriting
agreement in customary form with the Managing Underwriter or Underwriters,
which
shall include, among other provisions, indemnities to the effect and to the
extent provided in Section 2.08 and take all reasonable actions as are
requested by the Managing Underwriter or Underwriters to expedite or facilitate
the disposition of such Registrable Securities. Atlas Energy management shall
participate in a roadshow or similar marketing effort on behalf of any such
Holder or Holders if gross proceeds from such Underwritten Offering are
reasonably expected to exceed $75 million.
(b)
Limitation
on Underwritten
Offerings. In connection with any and all rights granted hereunder to the
Holders to cause Atlas Energy to engage underwriters to conduct an Underwritten
Offering on behalf of the Holders, in no event shall Atlas Energy be required
to
do more than aggregate of four such Underwritten Offerings.
(c)
General
Procedures. In connection with any Underwritten Offering under this
Agreement, Atlas Energy shall be entitled to select the Managing Underwriter
or
Underwriters. In connection with an Underwritten Offering contemplated by
this Agreement in which a Selling Holder participates, each Selling Holder
and
Atlas Energy shall be obligated to enter into an underwriting agreement that
contains such representations, covenants, indemnities and other rights and
obligations as are customary in underwriting agreements for firm commitment
offerings of securities. No Selling Holder may participate in such
Underwritten Offering unless such Selling Holder agrees to sell its Registrable
Securities on the basis provided in such underwriting agreement and completes
and executes all questionnaires, powers of attorney, indemnities and other
documents reasonably required under the terms of such
7
underwriting
agreement. Each
Selling Holder may, at its option, require that any or all of the
representations and warranties by, and the other agreements on the part of,
Atlas Energy to and for the benefit of such underwriters also be made to and
for
such Selling Holder’s benefit and that any or all of the conditions precedent to
the obligations of such underwriters under such underwriting agreement also
be
conditions precedent to its obligations. No Selling Holder shall be
required to make any representations or warranties to or agreements with Atlas
Energy or the underwriters other than representations, warranties or agreements
regarding such Selling Holder and its ownership of the securities being
registered on its behalf, its intended method of distribution and any other
representation required by Law. If any Selling Holder disapproves of the
terms of an underwriting, such Selling Holder may elect to withdraw therefrom
by
notice to Atlas Energy and the Managing Underwriter; provided,
however, that such withdrawal must be made at a time up to and including
the time of pricing of such Underwritten Offering. No such withdrawal or
abandonment shall affect Atlas Energy’s obligation to pay Registration Expenses.
Section 2.04
Sale
Procedures. In connection with its obligations under this Article II,
Atlas Energy will, as expeditiously as possible:
(a)
prepare and file with the
Commission such amendments and supplements to the Registration Statement and
the
prospectus used in connection therewith as may be necessary to cause the
Registration Statement to be effective and to keep the Registration Statement
effective for the Effectiveness Period and as may be necessary to comply with
the provisions of the Securities Act with respect to the disposition of all
securities covered by the Registration Statement;
(b)
furnish to each Selling Holder
(i) as far in advance as reasonably practicable before filing the
Registration Statement or any other registration statement contemplated by
this
Agreement or any supplement or amendment thereto, upon request, copies of
reasonably complete drafts of all such documents proposed to be filed (including
exhibits and each document incorporated by reference therein to the extent
then
required by the rules and regulations of the Commission), and provide each
such
Selling Holder the opportunity to object to any information pertaining to such
Selling Holder and its plan of distribution that is contained therein and make
the corrections reasonably requested by such Selling Holder with respect to
such
information prior to filing the Registration Statement or such other
registration statement or supplement or amendment thereto, and (ii) such
number of copies of the Registration Statement or such other registration
statement and the prospectus included therein and any supplements and amendments
thereto as such Persons may reasonably request in order to facilitate the public
sale or other disposition of the Registrable Securities covered by such
Registration Statement or other registration statement;
(c)
if applicable, use its
commercially reasonable efforts to register or qualify the Registrable
Securities covered by the Registration Statement or any other registration
statement contemplated by this Agreement under the securities or blue sky laws
of such jurisdictions as the Selling Holders or, in the case of an Underwritten
Offering, the Managing Underwriter, shall reasonably request; provided,
however, that Atlas Energy will not be required to qualify generally
to
transact business in any jurisdiction where it is not then required to so
qualify 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;
8
(d)
promptly notify each Selling
Holder and each underwriter of Registrable Securities, at any time when a
prospectus relating thereto is required to be delivered by any of them under
the
Securities Act, of (i) the filing of the Registration Statement or any
other registration statement contemplated by this Agreement or any prospectus
to
be used in connection therewith, or any amendment or supplement thereto, and,
with respect to such Registration Statement or any other registration statement
or any post-effective amendment thereto, when the same has become effective;
and
(ii) any written comments from the Commission with respect to any filing
referred to in clause (i) and any written request by the Commission for
amendments or supplements to the Registration Statement or any other
registration statement or any prospectus or prospectus supplement thereto;
(e)
immediately notify each Selling
Holder and each underwriter of Registrable Securities, at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act, of (i) the happening of any event as a result of which the prospectus
or prospectus supplement contained in the Registration Statement or any other
registration statement contemplated by this Agreement, as then in effect,
includes an untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances then existing; (ii) the
issuance or threat of issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or any other registration
statement contemplated by this Agreement, or the initiation of any proceedings
for that purpose; or (iii) the receipt by Atlas Energy of any notification
with respect to the suspension of the qualification of any Registrable
Securities for sale under the applicable securities or blue sky laws of any
jurisdiction. Following the provision of such notice, Atlas Energy agrees
to as promptly as practicable amend or supplement the prospectus or prospectus
supplement or take other appropriate action so that the prospectus or prospectus
supplement does not include an untrue statement of a material fact or omit
to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing and to take such other action as is necessary to remove a stop order,
suspension, threat thereof or proceedings related thereto;
(f)
upon request and subject to
appropriate confidentiality obligations, furnish to each Selling Holder copies
of any and all transmittal letters or other correspondence with the Commission
or any other governmental agency or self-regulatory body or other body having
jurisdiction (including any domestic or foreign securities exchange) relating
to
such offering of Registrable Securities;
(g)
in the case of an Underwritten
Offering, furnish upon request, (i) an opinion of counsel for Atlas Energy
dated the effective date of the applicable registration statement or the date
of
any amendment or supplement thereto, and a letter of like kind dated the date
of
the closing under the underwriting agreement, and (ii) a “cold comfort”
letter, dated the date of the applicable registration statement or the date
of
any amendment or supplement thereto and a letter of like kind dated the date
of
the closing under the underwriting agreement, in each case, signed by the
independent public accountants who have certified Atlas Energy’s financial
statements included or incorporated by reference into the applicable
registration statement, and each of the opinion and the “cold comfort” letter
shall be in customary form and covering substantially the same matters with
respect to such registration statement (and the prospectus and any prospectus
supplement included therein) as are customarily covered in opinions of issuer’s
counsel and in
9
accountants’
letters
delivered to
the underwriters in Underwritten Offerings of securities and such other matters
as such underwriters or Selling Holders may reasonably request;
(h)
otherwise use its commercially
reasonable efforts to comply with all applicable rules and regulations of the
Commission, and make available to its security holders, as soon as reasonably
practicable, an earnings statement, which earnings statement shall satisfy
the
provisions of Section 11(a) of the Securities Act and Rule 158 promulgated
thereunder;
(i)
make available to the
appropriate representatives of the Managing Underwriter and Selling Holders
access to such information and Atlas Energy personnel as is reasonable and
customary to enable such parties to establish a due diligence defense under
the
Securities Act; provided, however, that Atlas Energy need not
disclose any such information to any such representative unless and until such
representative has entered into or is otherwise subject to a confidentiality
agreement with Atlas Energy satisfactory to Atlas Energy (including any
confidentiality agreement referenced in Section 8.06 of the Purchase
Agreement);
(j)
cause all such Registrable
Securities registered pursuant to this Agreement to be listed on each securities
exchange or nationally recognized quotation system on which similar securities
issued by Atlas Energy are then listed;
(k)
use its commercially reasonable
efforts to cause the 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 Atlas Energy to enable the Selling Holders to
consummate the disposition of such Registrable Securities;
(l)
provide a transfer agent and
registrar for all Registrable Securities covered by such registration statement
not later than the effective date of such registration statement;
(m)
enter into customary agreements
and take such other actions as are reasonably requested by the Selling Holders
or the underwriters, if any, in order to expedite or facilitate the disposition
of such Registrable Securities;
(n)
If any Purchaser could
reasonably be deemed to be an “underwriter,” as defined in Section 2(a)(11)
of the Securities Act, in connection with the registration statement in respect
of any registration of Registrable Securities of such Purchaser pursuant to
this
Agreement, and any amendment or supplement thereof (any such registration
statement or amendment or supplement, a “Purchaser Underwriter Registration
Statement”), then for a period of two years following the File Date, Atlas
Energy will cooperate with such Purchaser in allowing such Purchaser to conduct
customary “underwriter’s due diligence” with respect to Atlas Energy and satisfy
its obligations in respect thereof. In addition, for a period of one year
following the File Date at any Purchaser’s request, Atlas Energy will furnish to
such Purchaser, on the date of the effectiveness of any Purchaser Underwriter
Registration Statement and thereafter no more often than on a quarterly basis,
(i) a letter, dated such date, from Atlas Energy’s independent certified
public accountants in form and substance as is customarily given by independent
certified public accountants to underwriters in an underwritten public offering,
addressed to such Purchaser, (ii) an opinion, dated as of such date, of
counsel representing
10
Atlas
Energy for purposes of such
Purchaser Underwriter Registration Statement, in form, scope and substance
as is
customarily given in an underwritten public offering, including a standard
“10b-5” opinion for such offering, addressed to such Purchaser and (iii) a
standard officer’s certificate from the Chief Executive Officer and Chief
Financial Officer of Atlas Energy addressed to such Purchaser. Atlas Energy
will also permit one legal counsel to such Purchaser(s) to review and comment
upon any such Purchaser Underwriter Registration Statement at least five
Business Days prior to its filing with the Commission and all amendments and
supplements to any such Purchaser Underwriter Registration Statement within
a
reasonable number of days prior to their filing with the Commission and not
file
any Purchaser Underwriter Registration Statement or amendment or supplement
thereto in a form to which such Purchaser’s legal counsel reasonably objects;
(o)
Each Selling Holder, upon
receipt of notice from Atlas Energy of the happening of any event of the kind
described in Section 2.04(e) of this Agreement, shall forthwith discontinue
disposition of the Registrable Securities until such Selling Holder’s receipt of
the copies of the supplemented or amended prospectus contemplated by
Section 2.04(e) of this Agreement or until it is advised in writing by
Atlas Energy that the use of the prospectus may be resumed and has received
copies of any additional or supplemental filings incorporated by reference
in
the prospectus, and, if so directed by Atlas Energy, such Selling Holder will,
or will request the managing underwriter or underwriters, if any, to deliver
to
Atlas Energy (at Atlas Energy’s expense) all copies in their possession or
control, 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;
(p)
If requested by a Purchaser,
Atlas Energy shall: (i) as soon as practicable incorporate in a prospectus
supplement or post-effective amendment such information as such Purchaser
reasonably requests to be included therein relating to the sale and distribution
of Registrable Securities, including information with respect to the number
of
Registrable Securities being offered or sold, the purchase price being paid
therefor and any other terms of the offering of the Registrable Securities
to be
sold in such offering; (ii) as soon as practicable make all required
filings of such prospectus supplement or post-effective amendment after being
notified of the matters to be incorporated in such prospectus supplement or
post-effective amendment; and (iii) as soon as practicable, supplement or
make amendments to any Registration Statement; and
(q)
Include in the plan of
distribution section of a registrations statement the following language with
respect to the selling unitholders:
“The
selling unitholders may enter
into derivative transactions with third parties, or sell securities not covered
by this prospectus to third parties in privately negotiated transactions. If
the
applicable prospectus supplement indicates, in connection with those
derivatives, the third parties may sell securities covered by this prospectus
and the applicable prospectus supplement, including in short sale transactions.
If so, the third party may use securities
11
pledged
by the selling unitholders
or borrowed from the selling unitholders or others to settle those sales or
to
close out any related open borrowings of Units, and may use securities received
from the selling unitholders in settlement of those derivatives to close out
any
related open borrowings of Units.”
Section 2.05
Cooperation
by
Holders. Atlas Energy shall have no obligation to include in the
Registration Statement Registrable Securities of a Holder, or in an Underwritten
Offering pursuant to Section 2.02 Registrable Securities of a Selling
Holder, who has failed to timely furnish such information that Atlas Energy
determines, after consultation with counsel, is reasonably required to be
furnished or conformed in order for the registration statement or prospectus
supplement, as applicable, to comply with the Securities Act.
Section 2.06
Restrictions
on
Public Sale by Holders of Registrable Securities. For a period of 365 days
from the Closing Date, each Holder of Registrable Securities agrees not to
effect any public sale or distribution of the Registrable Securities for a
period of up to 30 days following completion of an Underwritten Offering of
equity securities by Atlas Energy (except as provided in this
Section 2.06); provided, however, that the duration of the
foregoing restrictions shall be no longer than the duration of the shortest
restriction generally imposed by the underwriters on the officers or directors
or any other Unitholder of Atlas Energy on whom a restriction is imposed in
connection with such public offering. In addition, the provisions of this
Section 2.06 shall not apply with respect to a Holder that (A) owns
less than $25 million, in aggregate, of Registrable Securities based on the
Average Purchase Price or (B) has delivered an Opt Out Notice to Atlas
Energy pursuant to Section 2.02(a) hereof; provided, however, the
above shall not apply, in the case of a Purchaser that is a large multi-unit
investment or commercial banking organization, to activities in the normal
course of trading of units of such Purchaser other than the unit participating
in this transaction so long as such other units are not acting on behalf of
the
unit participating in this transaction and have not been provided with
confidential information regarding Atlas Energy by the unit participating in
this transaction; provided further, with respect to Xxxxxxx,
Xxxxx & Co., the restrictions contained in this Section 2.06 shall
only apply to the Xxxxxxx Sachs Principal Strategies Group, as currently
configured, and shall not restrict or limit the activities of any area or
division of Xxxxxxx, Xxxxx & Co. or any of its Affiliates, other than
Xxxxxxx Sachs Principal Strategies Group, as currently configured.
Section 2.07
Expenses.
(a)
Certain
Definitions. “Registration Expenses” means all expenses incident
to Atlas Energy’s performance under or compliance with this Agreement to effect
the registration of Registrable Securities on the Registration Statement
pursuant to Section 2.01 hereof or an Underwritten Offering covered under
this Agreement, and the disposition of such securities, including, without
limitation, all registration, filing, securities exchange listing and The New
York Stock Exchange fees, all registration, filing, qualification and other
fees
and expenses of complying with securities or blue sky laws, fees of the National
Association of Securities Dealers, Inc., transfer taxes and fees of transfer
agents and registrars, all word processing, duplicating and printing expenses
12
and
the fees and disbursements of
one counsel to the Holders and independent public accountants for Atlas Energy,
including the expenses of any special audits or “cold comfort” letters required
by or incident to such performance and compliance. “Selling
Expenses” means all underwriting fees, discounts and selling commissions
allocable to the sale of the Registrable Securities.
(b)
Expenses. Atlas
Energy will pay all reasonable Registration Expenses as determined in good
faith, including, in the case of an Underwritten Offering, whether or not any
sale is made pursuant to such Underwritten Offering. In addition, except as
otherwise provided in Section 2.08 hereof, Atlas Energy shall not be
responsible for legal fees incurred by Holders in connection with the exercise
of such Holders’ rights hereunder. Each Selling Holder shall pay its pro
rata share of all Selling Expenses in connection with any sale of its
Registrable Securities hereunder.
Section 2.08
Indemnification.
(a)
By
Atlas Energy. In
the event of an offering of any Registrable Securities under the Securities
Act
pursuant to this Agreement, Atlas Energy will indemnify and hold harmless each
Selling Holder thereunder, its Affiliates that own Registrable Securities and
their respective directors and officers, and each underwriter, pursuant to
the
applicable underwriting agreement with such underwriter, of Registrable
Securities thereunder and each Person, if any, who controls such Selling Holder
or underwriter within the meaning of the Securities Act and the Exchange Act,
and its directors and officers (collectively, the “Selling Holder Indemnified
Persons”), against any losses, claims, damages, expenses or liabilities
(including reasonable attorneys’ fees and expenses) (collectively,
“Losses”), joint or several, to which such Selling Holder Indemnified
Person may become subject under the Securities Act, the Exchange Act or
otherwise, insofar as such Losses (or actions or proceedings, whether commenced
or threatened, in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement or any other registration statement contemplated by
this
Agreement, any preliminary prospectus, free writing prospectus or final
prospectus contained therein, or any amendment or supplement thereof, arise
out
of or are based upon the 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 light of the circumstances under which
they were made) not misleading or arise out of or are based upon a Selling
Holder being deemed to be an “underwriter,” as defined in Section 2(a)(11)
of the Securities Act, in connection with the registration statement in respect
of any registration of Atlas Energy’s securities, and will reimburse each such
Selling Holder Indemnified Person for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such Loss
or
actions or proceedings; provided, however, that Atlas Energy will
not be liable in any such case if and to the extent that any such Loss arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission so made in strict conformity with information
furnished by such Selling Holder Indemnified Person in writing specifically
for
use in the Registration Statement or such other registration statement, or
prospectus supplement, as applicable. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on behalf of such
Selling Holder or any such Selling Holder, its directors or officers or any
underwriter or controlling Person, and shall survive the transfer of such
securities by such Selling Holder.
13
(b)
By
Each Selling
Holder. Each Selling Holder agrees severally and not jointly to
indemnify and hold harmless Atlas Energy, its directors and officers, and each
Person, if any, who controls Atlas Energy within the meaning of the Securities
Act or of the Exchange Act, and its directors and officers, to the same extent
as the foregoing indemnity from Atlas Energy to the Selling Holders, but only
with respect to information regarding such Selling Holder furnished in writing
by or on behalf of such Selling Holder expressly for inclusion in the
Registration Statement or any preliminary prospectus or final prospectus
included therein, or any amendment or supplement thereto; provided,
however, that the liability of each Selling Holder shall not be greater
in amount than the dollar amount of the proceeds (net of any Selling Expenses)
received by such Selling Holder from the sale of the Registrable Securities
giving rise to such indemnification.
(c)
Notice. Promptly
after receipt by an indemnified party hereunder of notice of the commencement
of
any action, such indemnified party shall, if a claim in respect thereof is
to be
made against the indemnifying party hereunder, notify the indemnifying party
in
writing thereof, but the omission so to notify the indemnifying party shall
not
relieve it from any liability which it may have to any indemnified party other
than under this Section 2.08. In any action brought against any
indemnified party, it shall notify the indemnifying party of the commencement
thereof. The indemnifying party shall be entitled to participate in and, to
the extent it shall wish, to assume and undertake the defense thereof with
counsel reasonably satisfactory to such indemnified party and, after notice
from
the indemnifying party to such indemnified party of its election so to assume
and undertake the defense thereof, the indemnifying party shall not be liable
to
such indemnified party under this Section 2.08 for any legal expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation and of liaison with counsel
so selected; provided, however, that, (i) if the indemnifying
party has failed to assume the defense or employ counsel reasonably acceptable
to the indemnified party or (ii) if the defendants in any such action
include both the indemnified party and the indemnifying party and counsel to
the
indemnified party shall have concluded that there may be reasonable defenses
available to the indemnified party that are different from or additional to
those available to the indemnifying party, or if the interests of the
indemnified party reasonably may be deemed to conflict with the interests of
the
indemnifying party, then the indemnified party shall have the right to select
a
separate counsel and to assume such legal defense and otherwise to participate
in the defense of such action, with the reasonable expenses and fees of such
separate counsel and other reasonable expenses related to such participation
to
be reimbursed by the indemnifying party as incurred. Notwithstanding any
other provision of this Agreement, no indemnified party shall settle any action
brought against it with respect to which it is entitled to indemnification
hereunder without the consent of the indemnifying party, unless the settlement
thereof imposes no liability or obligation on, and includes a complete and
unconditional release from all liability of, the indemnifying party.
(d)
Contribution. If
the
indemnification provided for in this Section 2.08 is held by a court or
government agency of competent jurisdiction to be unavailable to any indemnified
party or is insufficient to hold them harmless in respect of any Losses, 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 Loss in such proportion as is appropriate to reflect the relative
fault of the indemnifying party on the one hand and of such indemnified party
on
the other in connection with the statements or omissions which resulted in
14
such
Losses, as well as any other
relevant equitable considerations; provided, however, that in no
event shall such Selling Holder be required to contribute an aggregate amount
in
excess of the dollar amount of proceeds (net of Selling Expenses) received
by
such Selling Holder from the sale of Registrable Securities giving rise to
such
indemnification. The relative fault of the indemnifying party on the one
hand and the indemnified party 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 has been
made
by, or 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. The parties hereto agree that it would not be
just and equitable if contributions pursuant to this paragraph were to be
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to
herein. The amount paid by an indemnified party as a result of the Losses
referred to in the first sentence of this paragraph shall be deemed to include
any legal and other expenses reasonably incurred by such indemnified party
in
connection with investigating or defending any Loss which is the subject of
this
paragraph. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who is not guilty of such fraudulent
misrepresentation.
(e)
Other
Indemnification. The provisions of this Section 2.08 shall be in
addition to any other rights to indemnification or contribution which an
indemnified party may have pursuant to law, equity, contract or otherwise.
Section 2.09
Rule
144
Reporting. With a view to making available the benefits of certain
rules and regulations of the Commission that may permit the sale of the
Registrable Securities to the public without registration, Atlas Energy agrees
to use its commercially reasonable efforts to:
(a)
make and keep public information
regarding Atlas Energy available, as those terms are understood and defined
in
Rule 144 under the Securities Act, at all times from and after the date hereof;
(b)
file with the Commission in a
timely manner all reports and other documents required of Atlas Energy under
the
Securities Act and the Exchange Act at all times from and after the date hereof;
and
(c)
so long as a Holder owns any
Registrable Securities, furnish, unless otherwise not available at no charge
by
access electronically to the Commission’s XXXXX filing system, to such Holder
forthwith upon request a copy of the most recent annual or quarterly report
of
Atlas Energy, and such other reports and documents so filed as such Holder
may
reasonably request in availing itself of any rule or regulation of the
Commission allowing such Holder to sell any such securities without
registration.
Section 2.10
Transfer
or
Assignment of Registration Rights. The rights to cause Atlas Energy to
register Registrable Securities granted to the Purchasers by Atlas Energy under
this Article II may be transferred or assigned by any Purchaser to one or more
transferee(s) or assignee(s) of such Registrable Securities or by total return
swap; provided, however, that, except
15
with
respect to a total return swap,
(a) unless such transferee is an Affiliate of such Purchaser or another
Purchaser, each such transferee or assignee holds Registrable Securities in
the
amount of $10 million, based on the Average Purchase Price, (b) Atlas
Energy is given written notice prior to any said transfer or assignment, stating
the name and address of each such transferee and identifying the securities
with
respect to which such registration rights are being transferred or assigned,
and
(c) each such transferee assumes in writing responsibility for its portion
of the obligations of such Purchaser under this Agreement.
Section 2.11
Limitation
on
Subsequent Registration Rights. From and after the date hereof, Atlas
Energy shall not, without the prior written consent of the Holders of
Registrable Securities, (i) enter into any agreement with any current or
future holder of any securities of Atlas Energy that would allow such current
or
future holder to require Atlas Energy to include securities in any registration
statement filed by Atlas Energy on a basis that is superior in any way to the
piggyback rights granted to the Purchasers hereunder or (ii) grant
registration rights to any other Person that would be superior to the
Purchasers’ registration rights hereunder.
ARTICLE
III
MISCELLANEOUS
Section 3.01
Communications. All notices and other communications provided for or
permitted hereunder shall be made in writing by facsimile, electronic mail,
courier service or personal delivery:
(a)
if to Atlas Energy, to the
address set forth on its signature page;
(b)
if to a Purchaser, to the
address set forth on Exhibit A; and
(c)
if to a transferee of Purchaser,
to such Holder at the address provided pursuant to Section 2.10 hereof.
All
such notices and communications
shall be deemed to have been received: at the time delivered by hand, if
personally delivered; when receipt acknowledged, if sent via facsimile or
electronic mail; and when actually received, if sent by courier service or
any
other means.
Section 3.02
Successor
and
Assigns. This Agreement shall inure to the benefit of and be binding
upon the successors and assigns of each of the parties, including subsequent
Holders of Registrable Securities to the extent permitted herein.
Section 3.03
Aggregation
of
Purchased Class D Units and Purchased Units. All Purchased Class D
Units and Purchased Units held or acquired by Persons who are Affiliates of
one
another shall be aggregated together for the purpose of determining the
availability of any rights under this Agreement.
Section 3.04
Recapitalization, Exchanges, Etc. Affecting the Units. The
provisions of this Agreement shall apply to the full extent set forth herein
with respect to any and all units of Atlas Energy or any successor or assign
of
Atlas Energy (whether by merger, consolidation, sale of assets or otherwise)
which may be issued in respect of, in exchange for or in substitution of, the
Registrable Securities, and shall be appropriately adjusted for combinations,
unit splits,
16
recapitalizations
and the like
occurring after the date of this Agreement, including any issuance pursuant
to
Section 5.02 of the Purchase Agreement.
Section 3.05
Change
of
Control. Atlas Energy shall not merge, consolidate or combine with any other
Person unless the agreement providing for such merger, consolidation or
combination expressly provides for the continuation of the registration rights
specified in this Agreement with respect to the Registrable Securities or other
equity securities issued pursuant to such merger, consolidation or combination.
Section 3.06
Specific
Performance. Damages in the event of breach of this Agreement by a
party hereto may be difficult, if not impossible, to ascertain, and it is
therefore agreed that each such Person, in addition to and without limiting
any
other remedy or right it may have, will have the right to an injunction or
other
equitable relief in any court of competent jurisdiction, enjoining any such
breach, and enforcing specifically the terms and provisions hereof, and each
of
the parties hereto hereby waives any and all defenses it may have on the ground
of lack of jurisdiction or competence of the court to grant such an injunction
or other equitable relief. The existence of this right will not preclude
any such Person from pursuing any other rights and remedies at law or in equity
which such Person may have.
Section 3.07
Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each
of
which counterparts, when so executed and delivered, shall be deemed to be an
original and all of which counterparts, taken together, shall constitute but
one
and the same Agreement.
Section 3.08
Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
Section 3.09
Governing
Law. The Laws of the State of New York shall govern this Agreement
without regard to principles of conflict of Laws.
Section 3.10
Severability
of
Provisions. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating
the
remaining provisions hereof or affecting or impairing the validity or
enforceability of such provision in any other jurisdiction.
Section 3.11
Entire
Agreement. This Agreement is intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect
of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the rights granted by Atlas Energy set forth herein. This
Agreement and the Purchase Agreement supersede all prior agreements and
understandings between the parties with respect to such subject matter.
Section 3.12
Amendment. This Agreement may be amended only by means of a written
amendment signed by Atlas Energy and the Holders of a majority of the then
outstanding Registrable Securities; provided, however, that no
such amendment shall materially and adversely affect the rights of any Holder
hereunder without the consent of such Holder.
17
Section 3.13
No
Presumption. If any claim is made by a party relating to any conflict,
omission or ambiguity in this Agreement, no presumption or burden of proof
or
persuasion shall be implied by virtue of the fact that this Agreement was
prepared by or at the request of a particular party or its counsel.
Section 3.14
Obligations
Limited to Parties to Agreement. Each of the Parties hereto covenants,
agrees and acknowledges that no Person other than the Purchasers (and their
permitted assignees) and Atlas Energy shall have any obligation hereunder and
that, notwithstanding that one or more of the Purchasers may be a corporation,
partnership or limited liability company, no recourse under this Agreement
or
the Purchase Agreement or under any documents or instruments delivered in
connection herewith or therewith shall be had against any former, current or
future director, officer, employee, agent, general or limited partner, manager,
member, stockholder or Affiliate of any of the Purchasers or any former, current
or future director, officer, employee, agent, general or limited partner,
manager, member, stockholder or Affiliate of any of the foregoing, whether
by
the enforcement of any assessment or by any legal or equitable proceeding,
or by
virtue of any applicable Law, it being expressly agreed and acknowledged that
no
personal liability whatsoever shall attach to, be imposed on or otherwise be
incurred by any former, current or future director, officer, employee, agent,
general or limited partner, manager, member, stockholder or Affiliate of any
of
the Purchasers or any former, current or future director, officer, employee,
agent, general or limited partner, manager, member, stockholder or Affiliate
of
any of the foregoing, as such, for any obligations of the Purchasers under
this
Agreement or the Purchase Agreement or any documents or instruments delivered
in
connection herewith or therewith or for any claim based on, in respect of or
by
reason of such obligation or its creation.
18
[The
remainder of this page is
intentionally left blank]
19
IN
WITNESS WHEREOF, the Parties
hereto execute this Agreement, effective as of the date first above written.
| ATLAS ENERGY RESOURCES, LLC | ||||||
| By: |
|
|||||
| Name: | Xxxxxxx X. Xxxxx | |||||
| Title: | Chief Financial Officer | |||||
|
Address for notices:
|
Atlas Energy Resources, LLC | |||||
| 000 Xxxxxx Xxxx | ||||||
| Xxxx Xxxxxxxx, XX 00000 | ||||||
| Fax: | 000-000-0000 | |||||
| Attn: | Xxxxxxx X. Xxxxx | |||||
|
With
copies
to:
|
Ledgewood | |||||
| 0000 Xxxxxx Xxxxxx, Xxxxx 000 | ||||||
| Xxxxxxxxxxxx, XX 00000 | ||||||
| Fax: | 000-000-0000 | |||||
| Attn: | Xxxx X. Xxxxx | |||||
Signature
Page to Registration
Rights Agreement
IN
WITNESS WHEREOF, the Parties
hereto execute this Agreement, effective as of the date first above written.
| Purchasers: | ||
| Xxxxxxx,
Xxxxx & Co., on behalf of its Principal Strategies Group |
||
|
By:
|
/s/
|
|
|
Name:
|
Xxxxxx Xxxxxxxx | |
|
Title:
|
Managing Director | |
|
Royal
Bank of
Canada
by
its agent
RBC
Capital Markets
Corporation
|
||
| By: | /s/ | |
|
Name:
Xxxxx
Xxxxxxxx
Title:
Director and Senior
Counsel
|
||
| By: | /s/ | |
|
Name:
Xxxxx
Xxxxxx
Title:
Managing
Director
|
||
| Swank MLP Convergence Fund, LP | ||
| By: | /s/ | |
|
Name:
Xxxxx X.
Xxxxx
Title:
Managing
Partner
|
||
| The Xxxxxxx MLP Opportunity Fund I, LP | ||
| By: | /s/ | |
|
Name:
Xxxxx X.
Xxxxx
Title:
Managing
Partner
|
||
| ZLP Fund, L.P. | ||
| By: Xxxxxx Xxxxx Partners, LLC, its general partner | ||
| By: | /s/ | |
|
Name:
Xxxxx X.
Xxxxx
Title:
Managing
Member
|
||
| Xxxxx Xxxxxxxx Energy Development Company | ||
| By: | /s/ | |
|
Name:
Xxxxx X.
Xxxxx
Title:
Vice
President
|
||
| Xxxxx Xxxxxxxx MLP Investment Company | ||
| By: | /s/ | |
|
Name:
Xxxxx X.
Xxxxx
Title:
Vice
President
|
||
| Xxxxx Xxxxxxxx Energy Total Return Fund, Inc. | ||
| By: | /s/ | |
|
Name:
Xxxxx X.
Xxxxx
Title:
Vice
President
|
||
| Xxxxxx Brothers Inc. | ||
| By: | /s/ | |
|
Name:
Xxxxxx X.
Xxxxxxx
Title:
Managing
Director
|
||
| Magnetar Capital Fund, LP | ||
| By: Magnetar Financial LLC, its general partner | ||
| By: | /s/ | |
|
Name:
Xxxx X.
Xxxxx
Title:
General
Counsel
|
||
| Structured Finance Americas, LLC | ||
| By: | /s/ | |
|
Name:
Xxxxx
Xxxxxxx
Title:
VP
|
||
| By: | /s/ | |
|
Name:
Xxxx X.
[Illegible]
Title:
VP
|
||
| LB I Group | ||
| By: | /s/ | |
|
Name:
Xxxx X.
Xxxx
Title:
Managing
Director
|
||
| Xxxxxx Brothers MLP Opportunity Fund L.P. | ||
| By: Xxxxxx Brothers MLP Opportunity Associates L.P., its general partner | ||
| By: Xxxxxx Brothers MLP Opportunity Associates L.L.C., its general partner | ||
| By: | /s/ | |
|
Name:
Xxxx Xxxxxx
Title:
Senior Vice
President
|
||
| Cobalt Partners, LP | ||
| By: Cobalt Management, LLC, its General Partner | ||
| By: | /s/ | |
|
Name:
Xxxxx
Xxxxxxxxx
Title:
Managing
Member
|
||
| Cobalt Partners II, LP | ||
| By: Cobalt Management, LLC, its General Partner | ||
| By: | /s/ | |
|
Name:
Xxxxx
Xxxxxxxxx
Title:
Managing
Member
|
||
| Guggenheim Portfolio Company XI, LLC | ||
| By: Cobalt Capital Management, its Investment Manager | ||
| By: | /s/ | |
|
Name:
Xxxxx
Xxxxxxxxx
Title:
President
|
||
| Cobalt Capital SPV 1 LLC | ||
| By: Cobalt Management, LLC, its General Partner | ||
| By: | /s/ | |
|
Name:
Xxxxx
Xxxxxxxxx
Title:
Managing
Member
|
||
| Credit Suisse Management LLC | ||
| By: | /s/ | |
|
Name:
Xxxxxx
Xxxxxxx
Title:
Managing
Director
|
||
| Sunlight Capital Partners, LLC | ||
| By: | /s/ | |
|
Name:
Xxxxxx
Xxxxxxxxx
Title:
Vice
President
|
||
| Omega Advisors, Inc.* | ||
| By: | /s/ | |
|
Name:
Xxxxx Xxxx
Title:
Chief Operating
Officer
|
||
| * | solely in its capacity as investment manager of the following entities and not in its individual corporate capacity: |
Omega
Capital Partners, L.P.
Omega
Capital Investors, L.P.
Omega
SPV Partners, L.P.
Omega
Equity Investors, L.P.
Beta
Equities, Inc.
GS&Co
Profit Sharing Master
Trust
Presidential
Life Corporation
The
Ministers and Missionaries
Benefit Board of American Baptist Churches
| Xxxxxxx Capital Ltd. | ||
| By: Citadel Limited Partnership, Portfolio Manger | ||
| By: Citadel Investment Group, L.L.C., its General Partner | ||
| By: | /s/ | |
|
Name:
Xxxx Xxxxx
Title:
Director and Associate
General Counsel
|
||
| Oz Offshore ATN Investors I, LLC | ||
| By: OZ Overseas Fund, Ltd., its Sole Member | ||
| By: OZ Management, L.L.C., its Investment Manager | ||
| By: | /s/ | |
|
Name:
Xxxx X.
Xxxxx
Title:
Chief Financial
Officer
|
||
| Oz Offshore ATN Investors II, LLC | ||
| By: OZ Overseas Fund II, Ltd., its Sole Member | ||
| By: OZ Management, L.L.c., its Investment Manager | ||
| By: | /s/ | |
|
Name:
Xxxx X.
Xxxxx
Title:
Chief Financial
Officer
|
||
| Oz Offshore ATN Investors III, LLC | ||
| By: OZ Global Special Investments Intermediate Fund, L.P. its Sole Member | ||
| By: OZ Advisors, LLC, its General Partner | ||
| By: Och-Ziff Associates, LLC, its Managing Member | ||
| By: | /s/ | |
|
Name:
Xxxx X.
Xxxxx
Title:
Chief Financial
Officer
|
||
| Oz Global Special Investments, L.P. | ||
| By: OZ Advisors, L.L.C., its General Partner | ||
| By: Och-Ziff Associates, L.L.C., its Managing Member | ||
| By: | /s/ | |
|
Name:
Xxxx X.
Xxxxx
Title:
Chief Financial
Officer
|
||
| OZ Domestic Partners, L.P. | ||
| By: OZ Advisors, L.L.C., its General Partner | ||
| By: Och-Ziff Associates, L.L.C., its Managing Member | ||
| By: | /s/ | |
|
Name:
Xxxx X.
Xxxxx
Title:
Chief Financial
Officer
|
||
| Oz Domestic Partners II, L.P. | ||
| By: OZ Advisors, L.L.C., its General Partner | ||
| By: Och-Ziff Associates, L.L.C., its Managing Member | ||
| By: | /s/ | |
|
Name:
Xxxx X.
Xxxxx
Title:
Chief Financial
Officer
|
||
| GPC LVII, LLC | ||
| By: OZ Management, L.L.C., its Investment Manager | ||
| By: | /s/ | |
|
Name:
Xxxx X.
Xxxxx
Title:
Chief Financial
Officer
|
||
Signature
Page to Registration
Rights Agreement
