Exhibit 4.16
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is entered into
as of December __, 2001 among Peabody Energy Corporation, a Delaware corporation
(the "Company"), Xxxxxx Brothers Merchant Banking Partners II L.P., a Delaware
limited partnership ("Xxxxxx"), Xxxxxx Brothers Offshore Investment Partners II
L.P., a Bermuda exempted limited partnership ("Offshore"), LB I Group Inc., a
Delaware corporation ("LB I"), Xxxxxx Brothers Capital Partners III, L.P., a
Delaware limited partnership ("Cap III"), Xxxxxx Brothers Capital Partners IV,
L.P., a Delaware limited partnership ("Cap IV"), Xxxxxx Brothers MBG Partners
1998 (A) L.P., a Delaware limited partnership ("MBG Partners (A)"), Xxxxxx
Brothers MBG Partners 1998 (B) L.P., a Delaware limited partnership ("MBG
Partners (B)"), and Xxxxxx Brothers MBG Partners 1998 (C) L.P., a Delaware
limited partnership ("MBG Partners (C)," collectively with Offshore, LB I, Cap
III, Cap IV, MBG Partners (A) and MBG Partners (B), the "Other Xxxxxx
Entities"). Each of the parties to this Agreement (other than the Company) and
any other Person (as hereinafter defined) who or which shall become a party to
or agree to be bound by the terms of this Agreement after the date hereof is
sometimes hereinafter referred to as a "Stockholder."
ARTICLE I
DEFINITIONS
Section 1.1. Definitions.
As used in this Agreement, the following terms shall have the
following meanings:
"Agreement" shall have the meaning set forth in the preamble to this
Agreement.
"Common Stock" shall mean the common stock, par value $0.01 per share,
of the Company.
"Company" shall mean Peabody Energy Corporation, a Delaware
corporation.
"Demand Registration" shall have the meaning set forth in Section
2.1(a).
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Indemnified Party" shall have the meaning set forth in Section 4.3.
"Indemnifying Party" shall have the meaning set for the in Section
4.3.
"Inspectors" shall have the meaning set forth in Section 3.1(g).
"Person" shall mean an individual, partnership, corporation, business
trust, joint stock company, limited liability company, unincorporated
association, joint venture or other entity of whatever nature.
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"Piggy-Back Registration" shall mean have the meaning set forth in
Section 2.2.
"Records" shall have the meaning set forth in Section 3.1(g).
"Registrable Security" shall mean any outstanding share of Common
Stock held by Xxxxxx and the Other Xxxxxx Entities as of the date hereof, or
acquired from the Company or an affiliate of the Company, whether as the result
of the purchase of Common Stock, the conversion of any convertible security or
otherwise, and Common Stock or Common Stock issuable upon the conversion of a
convertible security which may be issued or distributed in respect thereof by
way of a stock dividend or stock split or other distribution, recapitalization
or reclassification, until (i) a registration statement covering such Common
Stock has been declared effective by the SEC and such share has been disposed of
pursuant to such effective registration statement; (ii) such share is sold under
circumstances in which all of the applicable conditions of Rule 144 (or any
similar provisions then in force) under the Securities Act are met or under
which it may be sold pursuant to Rule 144(k); or (iii) such shares may be
resold, without regard to volume limitations, under Rule 144 (or any similar
provisions then in force) of the Securities Act.
"Registration Expenses" shall have the meaning set forth in Section
3.2.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Selling Stockholder" shall mean a holder of a Registrable Security
who is selling Registrable Securities pursuant to a registration statement under
the Securities Act.
"Stockholder" shall have the meaning set forth in the preamble of this
Agreement.
"Underwriter" shall mean a securities dealer who purchases any
Registrable Securities as principal in an underwritten offering and not as part
of such dealer's market-making activities.
ARTICLE II
REGISTRATION RIGHTS
Section 2.1. Demand Registrations.
(a) At any time and from time to time after the first underwritten
public offering of shares of Common Stock by Xxxxxx and/or the Other Xxxxxx
Entities, Xxxxxx may make a written request for registration under the
Securities Act of all or part of its and/or the Other Xxxxxx Entities'
Registrable Securities (a "Demand Registration"); provided that such request
specifies the number of shares of Registrable Securities proposed to be sold and
the intended method of disposition thereof.
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(b) The Company shall not be required to effect more than three Demand
Registrations pursuant to this Section 2.1.
(c) A registration will not count as a Demand Registration until the
registration statement has become effective under the Securities Act and shall
have remained or been effective for a period of 90 days in the aggregate or such
lesser period as may be necessary to permit the sale of all Registrable
Securities registered in connection with such Demand Registration.
(d) If Xxxxxx so elects, the offering of such Registrable Securities
pursuant to such Demand Registration shall be in the form of an underwritten
offering. Xxxxxx, in consultation with the Company, shall select one or more
nationally recognized firms of investment bankers to act as the book-managing,
lead-managing and co-managing Underwriter or Underwriters in connection with
such offering and any additional investment bankers and managers to be used in
connection with the offering.
(e) If at the time of any request to register Registrable Securities
pursuant to Section 2.1, the Company is engaged, or has plans (which have been
or are reasonably expected to be approved by the Board of Directors within 30
days) to engage within 90 days of the time of the request in a registered public
offering as to which the Stockholders may include such Registrable Securities
pursuant to Section 2.2 hereof, or is engaged in any activity which, in the good
faith determination of the Board of Directors, would be adversely affected by
the requested registration to the material detriment of the Company, then the
Company may at its option direct that such request be delayed for a period not
in excess of 180 days from the effective date of such offering, or in the case
of such other material activity, the lesser of (i) 180 days from the date of
such request for registration or (ii) such time when the registration would not
adversely affect such activity of the Company, such right to delay a request to
be exercised by the Company not more than once within any twelve-month period.
Section 2.2. Piggyback Registration.
If at any time the Company proposes to file a registration statement
under the Securities Act with respect to an offering by the Company for its own
account and/or for the account of its securityholders of any shares of Common
Stock (other than (i) a registration statement on Form S-4 or S-8 (or any
substitute form that may be adopted by the SEC) or (ii) a registration statement
filed in connection with an exchange offer or an offering of securities solely
to the Company's existing securityholders), then the Company shall give written
notice of such proposed filing to Xxxxxx as soon as practicable (but in no event
less than 30 days before the anticipated filing date), and such notice shall
offer Xxxxxx the opportunity to register such number of shares of Registrable
Securities as Xxxxxx may request (which request shall specify the Registrable
Securities intended to be delivered to the Company at least ten days prior to
the anticipated filing date) (a "Piggy-Back Registration"). The Company shall
use its best efforts to cause the managing Underwriter or Underwriters of a
proposed underwritten offering to permit the Registrable Securities requested to
be included in a Piggy-Back Registration to be included on the same terms and
conditions and to permit the sale or other disposition of such Registrable
Securities in accordance with the intended method of distribution thereof.
Xxxxxx shall have the
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right to withdraw its request for inclusion of Registrable Securities in any
registration statement pursuant to this Section 2.2 by giving written notice to
the Company of its request to withdraw. The Company may withdraw a Piggy-Back
Registration at any time prior to 48 hours in advance of the time it becomes
effective.
Section 2.3. Reduction of Offering.
Notwithstanding anything contained herein, if the managing Underwriter
or Underwriters of an offering described in Section 2.1 or 2.2 determine that
the offering that the Stockholders, the Company and/or such other Persons intend
to make is such that the success of the offering would be materially and
adversely affected by inclusion of all of the Registrable Securities requested
to be included then the number of shares to be included in the offering shall be
reduced by the amount indicated by the Underwriters, and the Company shall
include in such registration the then remaining shares to be included in the
offering, allocated as follows: (A) in the case of a Demand Registration (i)
first, an amount of Registrable Securities requested to be included in such
Demand Registration by the Stockholder or Stockholders requesting such Demand
Registration, any other Stockholders, if any, who request to be included in such
Demand Registration, and the shares of Common Stock of members of the Company's
management who exercise piggyback registration rights in order to be included in
such registration (such amount to be allocated among such Stockholders and
management holders in proportion to the number of Registrable Securities (or
shares of Common Stock subject to piggyback registration rights, in the case of
the management holders) held by them) and (ii) second, the shares, if any,
proposed to be registered by the Company for its own account or by any other
holders of Common Stock (other than the management holders referred to in clause
(i) above) who have the right to include their shares of Common Stock in such
registration; and (B) in the case of a Piggy-Back Registration, (i) first, the
shares, if any, proposed to be registered by the Company for its own account or
for the account of any security holder exercising contractual demand
registration rights and (ii) second, an amount of Registrable Securities
requested to be included in such registration pursuant to Section 2.2 by any
Stockholder (such amount to be allocated among such Stockholders in proportion
to the number of Registrable Securities held by such Stockholders).
ARTICLE III
REGISTRATION PROCEDURES
Section 3.1. Filings; Information.
Whenever Xxxxxx has requested that any Registrable Securities be
registered pursuant to this Agreement, the Company will use its best efforts to
effect the registration of such Registrable Securities in accordance with the
intended method of disposition thereof as quickly as practicable, and in
connection with any such request:
(a) The Company will as expeditiously as practicable prepare and file
with the SEC a registration statement on any form for which the Company then
qualifies or which counsel for the Company shall deem appropriate and which form
shall be available for the sale of the Registrable Securities to be registered
thereunder in accordance with the intended method of distribution thereof (it
being understood that the Company shall use Form S-3 (or any substitute
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form that may be adopted by the SEC) if such form is then available), and use
its best efforts to cause such filed registration statement to become effective
and thereafter to remain effective for a period of not less than 90 days unless
all Registrable Securities are sold in a lesser period.
(b) The Company will, prior to filing a registration statement or
prospectus or any amendment or supplement thereto, furnish to the Stockholders,
their counsel and each Underwriter, if any, of the Registrable Securities
covered by such registration statement copies of such registration statement as
proposed to be filed, together with exhibits thereto, which documents will be
subject to review by the foregoing within five business days after delivery, and
thereafter furnish to the Stockholders, their counsel and each Underwriter, if
any, such number of copies of such registration statement, each amendment and
supplement thereto (in each case including all exhibits thereto and documents
incorporated by reference therein), the prospectus included in such registration
statement (including each preliminary prospectus) and such other documents as
the Stockholders, their counsel or the Underwriter may reasonably request in
order to facilitate the disposition of the Registrable Securities owned by the
Stockholders.
(c) After the filing of the registration statement, the Company will
promptly notify each Selling Stockholder covered by such registration statement
of any stop order issued or threatened by the SEC and take all reasonable
actions required to prevent the entry of such stop order or to remove it if
entered.
(d) The Company will use its best efforts to (i) register or qualify
the Registrable Securities under such other securities or blue sky laws of such
jurisdictions in the United States and such other jurisdictions as any Selling
Stockholder reasonably (in light of such Selling Stockholder's intended plan of
distribution) requests and (ii) cause such Registrable Securities to be
registered with or approved by such other governmental agencies or authorities
in the United States as may be necessary by virtue of the business and
operations of the Company and do any and all other acts and things that may be
reasonably necessary or advisable to enable such Selling Stockholder to
consummate the disposition of the Registrable Securities owned by such Selling
Stockholder; provided that the Company will not be required to (A) qualify
generally to do business in any jurisdiction where it would not otherwise be
required to qualify but for this paragraph (d), (B) subject itself to taxation
in any such jurisdiction or (C) consent to general service of process in any
such jurisdiction.
(e) The Company will immediately notify each Selling Stockholder of
such Registrable Securities, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, of the occurrence of an event
requiring the preparation of a supplement or amendment to such prospectus so
that, as thereafter delivered to the purchasers of such Registrable Securities,
such prospectus will not contain an untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading, and will
promptly make available to each Selling Stockholder any such supplement or
amendment.
(f) The Company will enter into customary agreements (including, if
applicable, an underwriting agreement in customary form) and take such other
actions as are
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reasonably required in order to expedite or facilitate the disposition of such
Registrable Securities in accordance with the intended plan of distribution of
the Selling Stockholders. The Selling Stockholders may, at their option, require
that any or all of the representations, warranties and covenants of the Company
or to or for the benefit of such Underwriters also be made to and for the
benefit of such Selling Stockholders.
(g) The Company will deliver promptly to each Selling Stockholder of
such Registrable Securities and each Underwriter, if any, subject to
restrictions imposed by the United States federal government or any agency or
instrumentality thereof, copies of all correspondence between the SEC and the
Company, its counsel or auditors and all memoranda relating to discussions with
the SEC or its staff with respect to the registration statement and make
available for inspection by any Selling Stockholder of such Registrable
Securities, any Underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other professional
retained by any such Selling Stockholder or Underwriter (collectively, the
"Inspectors"), all financial and other records, pertinent corporate documents
and properties of the Company (collectively, the "Records"), subject to
restrictions imposed by any governmental authority governing access to
classified information, as shall be reasonably necessary to enable them to
perform a reasonable and customary due diligence investigation, and cause the
Company's officers, directors and employees to supply all information reasonably
requested by any Inspector in connection with such registration statement.
Records which the Company determines, in good faith, to be confidential and
which it notifies the Inspectors are confidential shall not be disclosed by the
Inspectors unless (i) the disclosure of such Records is necessary to avoid or
correct a misstatement or omission in such registration statement or (ii) the
disclosure or release of such Records is requested or required pursuant to oral
questions, interrogatories, requests for information or documents or a subpoena
or other order from a court of competent jurisdiction or other process; provided
that prior to any disclosure or release pursuant to clause (ii), the Inspectors
shall provide the Company with prompt notice of any such request or requirement
so that the Company may seek an appropriate protective order or waive such
Inspectors' obligation not to disclose such Records; and provided, further, that
if failing the entry of a protective order or the waiver by the Company
permitting the disclosure or release of such Records, the Inspectors, upon
advice of counsel, are compelled to disclose such Records, the Inspectors may
disclose that portion of the Records which counsel has advised the Inspectors
that the Inspectors are compelled to disclose. All Inspectors will be advised of
these confidentiality obligations and agree to be bound by them. The Selling
Stockholders and the Underwriters shall be responsible for breaches by
Inspectors acting on their behalf. Each Selling Stockholder of such Registrable
Securities agrees that it will, upon learning that disclosure of such Records is
sought in a court of competent jurisdiction, give notice to the Company and
allow the Company, at its expense, to undertake appropriate action to prevent
disclosure of the Records deemed confidential.
(h) The Company will furnish to each Selling Stockholder and to each
Underwriter, if any, a signed counterpart, addressed to such Selling Stockholder
or Underwriter, of (i) an opinion or opinions of counsel to the Company and (ii)
a comfort letter or comfort letters from the Company's independent public
accountants, each in customary form and covering such matters of the type
customarily covered by opinions or comfort letters, as the case
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may be, as the Selling Stockholders of Registrable Securities included in such
offering or the managing Underwriter, if any, therefor reasonably requests.
(i) The Company will use its best efforts to comply with all
applicable rules and regulations of the SEC, and make available to its security
holders, as soon as reasonably practicable, an earning statement covering a
period of 12 months, beginning within three months after the effective date of
the registration statement, which earning statement shall satisfy the provisions
of Section 11(a) of the Securities Act and Rule 158 thereunder.
(j) In connection with an underwritten offering, the Company will
participate, at its own expense, to the extent reasonably requested by the
managing Underwriter for the offering or the Selling Stockholder, in efforts to
sell the Registrable Securities under the offering (including, without
limitation, participating in "road show" meetings with prospective investors)
that would be customary for primary offerings of equity securities by the
Company.
(k) The Company will appoint a transfer agent and registrar for all
such Registrable Securities covered by such registration statement not later
than the effective date of such registration statement.
The Company may require each Selling Stockholder of Registrable
Securities to promptly furnish in writing to the Company such information
regarding the distribution of the Registrable Securities as the Company may from
time to time reasonably request and such other information as may be legally
required in connection with such registration.
Each Selling Stockholder agrees that, upon receipt of any notice from
the Company of the occurrence of any event of the kind described in Subsection
(e) hereof, such Selling Stockholder will forthwith discontinue disposition of
Registrable Securities pursuant to the registration statement covering such
Registrable Securities until such Selling Stockholder's receipt of the copies of
the supplemented or amended prospectus contemplated by Subsection (e) hereof,
and, if so directed by the Company, such Selling Stockholder will deliver to the
Company, at the Company's expense, all copies, other than permanent file copies
then in such Selling Stockholder's possession, of the most recent prospectus
covering such Registrable Securities at the time of receipt of such notice. In
the event the Company shall give such notice, the Company shall extend the
period during which such registration statement shall be maintained effective
(including the period referred to in Subsection (a) hereof) by the number of
days during the period from and including the date of the giving of notice
pursuant to Subsection (e) hereof to the date when the Company shall make
available to the Selling Stockholders of Registrable Securities covered by such
registration statement a prospectus supplemented or amended to conform with the
requirements of Subsection (e) hereof.
Section 3.2. Registration Expenses.
In connection with the first two Demand Registrations made pursuant to
Article II, the Company shall pay the following registration expenses incurred
in connection with the registration hereunder (the "Registration Expenses"): (i)
all registration and filing fees, (ii) fees and expenses of compliance with
securities or blue sky laws (including reasonable fees and disbursements of
counsel in connection with blue sky qualifications of the Registrable
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Securities), (iii) printing expenses, (iv) the Company's internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), (v) fees and expenses incurred
in connection with the listing of the Registrable Securities, (vi) reasonable
fees and disbursements of one counsel for both the Company and the Stockholders
(which counsel shall be chosen by the Company and approved by the Stockholders,
which approval shall not be unreasonably withheld) and customary fees and
expenses for independent certified public accountants retained by the Company
(including the expenses of any comfort letters or costs associated with the
delivery by independent certified public accountants of a comfort letter or
comfort letters requested pursuant to Section 3.1(h) hereof) and (vii)
reasonable fees and expenses of any special experts retained by the Company in
connection with such registration. In connection with the third Demand
Registration made pursuant to Article II, the Company shall pay the expenses
described in clause (iv) above and Xxxxxx shall pay all other expenses occurred
in connection with such registration. The Company shall have no obligation to
pay any underwriting fees, discounts or commissions attributable to the sale of
Registrable Securities.
ARTICLE IV
INDEMNIFICATION AND CONTRIBUTION
Section 4.1. Indemnification by the Company.
The Company agrees to indemnify and hold harmless each Selling
Stockholder, its officers, directors, employees and agents, and each person, if
any, who controls such Selling Stockholder within the meaning of the Securities
Act from and against any loss, claim, damage or liability, joint or several, or
any action in respect thereof (including, but not limited to, any loss, claim,
damage, liability or action relating to purchases and sales of Common Stock) to
which such Selling Stockholder, officer, director, employee or agent or
controlling Person may become subject under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in (A) any registration statement, prospectus or any preliminary
prospectus or any amendment or supplement thereto relating to the Registrable
Securities or (B) in any materials or information provided to investors by, or
with the written approval of, the Company in connection with the marketing of
the offering of the Securities ("Marketing Materials"), (ii) any omission or
alleged omission to state in any registration statement, prospectus or any
preliminary prospectus or any amendment or supplement thereto relating to the
Registrable Securities or in any Marketing Materials a material fact required to
be stated therein or necessary to make the statements therein not misleading or
(iii) any act or failure to act, or any alleged act or failure to act by any
Selling Stockholder in connection with, or relating in any manner to, the
Registrable Securities, and which is included as part of or referred to in any
loss, claim, damage, liability or action arising out of or based upon matters
covered by clause (i) or (ii) above and shall reimburse each Selling Stockholder
and each such officer, director, employee, agent and controlling Person for any
legal and other expenses reasonably incurred by that Selling Stockholder,
officer, director, employee, agent or controlling Person in connection with
investigating or defending or preparing to defend against any such
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loss, claim, damage, liability or action as such expenses are incurred, except
insofar as the same are contained in any information furnished in writing to the
Company by such Selling Stockholder expressly for use therein. In addition, the
Company will not be liable under this Section 4.1 to the extent that any such
loss, claim, damage, liability or action arises out of or is based solely upon
the failure of the Selling Stockholders to deliver copies of any prospectus or
supplement or amendment thereto in the manner required by the Securities Act,
and such copies were provided to such Selling Stockholders on a timely basis.
The Company also agrees to indemnify any Underwriters of the Registrable
Securities, their officers and directors and each Person who controls such
Underwriters on substantially the same basis as that of the indemnification of
the Selling Stockholders provided in this Section 4.1.
Section 4.2. Indemnification by Stockholders.
Each Selling Stockholder agrees, severally but not jointly, to
indemnify and hold harmless the Company, its officers, directors and agents and
each Person, if any, who controls the Company within the meaning of the
Securities Act to the same extent as the indemnity from the Company to such
Selling Stockholder pursuant to clauses (i) and (ii) of Section 4.1, but only
with reference to information related to such Selling Stockholder furnished in
writing by such Selling Stockholder or on such Selling Stockholder's behalf
expressly for use in any registration statement or prospectus relating to the
Registrable Securities, any amendment or supplement thereto, any preliminary
prospectus, or any Marketing Materials; provided that the obligation to
indemnify will be individual to each Selling Stockholder and will be limited to
the net amount of proceeds received by such Selling Stockholder from the sale of
Registrable Securities pursuant to such registration statement. Each Selling
Stockholder also agrees to indemnify and hold harmless Underwriters of the
Registrable Securities, their officers and directors and each Person who
controls such Underwriters on substantially the same basis as that of the
indemnification of the Company provided in this Section 4.2, subject to the
proviso in the first sentence of this Section 4.2.
Section 4.3. Conduct of Indemnification Proceedings.
Promptly after receipt by any Person in respect of which indemnity may
be sought pursuant to Section 4.1 or 4.2 (an "Indemnified Party") of notice of
any claim or the commencement of any action, the Indemnified Party shall, if a
claim in respect thereof is to be made against the person against whom such
indemnity may be sought (an "Indemnifying Party") notify the Indemnifying Party
in writing of the claim or the commencement of such action provided that the
failure to notify the Indemnifying Party shall not relieve it from any liability
which it may have to an Indemnified Party otherwise than under Section 4.1 or
4.2 and except to the extent of any actual prejudice resulting therefrom. If any
such claim or action shall be brought against an Indemnified Party, and it shall
notify the Indemnifying Party thereof, the Indemnifying Party shall be entitled
to participate therein, and, to the extent that it wishes, jointly with any
other similarly notified Indemnifying Party, to assume the defense thereof with
counsel satisfactory to the Indemnified Party. After notice from the
Indemnifying Party to the Indemnified Party of its election to assume the
defense of such claim or action, the Indemnifying Party shall not be liable to
the Indemnified Party for any legal or other expenses subsequently incurred by
the Indemnified Party in connection with the defense thereof other than
reasonable
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costs of investigation; provided that the Indemnified Party shall have the right
to employ separate counsel to represent the Indemnified Party and its
controlling Persons who may be subject to liability arising out of any claim in
respect of which indemnity may be sought by the Indemnified Party against the
Indemnifying Party, but the fees and expenses of such counsel shall be for the
account of such Indemnified Party unless (i) the Indemnifying Party and the
Indemnified Party shall have mutually agreed to the retention of such counsel or
(ii) in the reasonable judgment of such Indemnified Party representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them, in which case the Indemnifying Party's
obligations shall be limited to reimbursement of the reasonable fees and
expenses of one firm of separate counsel for all Indemnified Parties, unless one
counsel for all Indemnified Parties is inappropriate because of conflicts of
interest, in which case the Indemnifying Party's obligations shall be limited to
reimbursement of the reasonable fees and expenses of up to one firm of separate
counsel for each Indemnified Party. No Indemnifying Party shall, without the
prior written consent of the Indemnified Party, effect any settlement of any
claim or pending or threatened proceeding in respect of which the Indemnified
Party is or could have been a party and indemnity could have been sought
hereunder by such Indemnified Party, unless such settlement includes an
unconditional release of such Indemnified Party from all liability arising out
of such claim or proceeding.
Section 4.4. Contribution.
If the indemnification provided for in Article IV is unavailable to
the Indemnified Parties in respect of any losses, claims, damages, liabilities
or expenses referred to herein, 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 losses, claims, damages,
liabilities or expenses in such proportion as the Underwriters shall reasonably
request based on the net proceeds received by each Indemnifying Party as a
result of a sale of Registrable Securities.
ARTICLE V
MISCELLANEOUS
Section 5.1. Rule 144.
The Company covenants that it will file any reports required to be
filed by it under the Securities Act and the Exchange Act and that it will take
such further action as any Stockholder may reasonably request, all to the extent
reasonably required from time to time to enable Stockholders to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by (a) Rule 144 under the Securities Act, as such
Rules may be amended from time to time, or (b) any similar rule or regulation
hereafter adopted by the Commission. Upon the request of any Stockholder, the
Company will deliver to such Stockholder a written statement as to whether it
has complied with such requirements.
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Section 5.2. Notices.
(a) Notices to the Company shall be sent to the Company at the
following address (or at such other address or addresses as the Company shall
have specified in writing to each of the other Stockholders):
Peabody Energy Corporation
000 Xxxxxx Xxxxxx
Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxxxx X. Xxxxxxx, Vice-President -- Legal Services
(b) notices to Xxxxxx or the Other Xxxxxx Entities shall be addressed
to the applicable Stockholder at the following address (or at such other address
as Xxxxxx or the Other Xxxxxx Entities shall have specified in writing to each
of the other Stockholders):
c/x Xxxxxx Brothers Merchant Banking Group
3 World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxx
(c) copies of all notices to the Company and to Xxxxxx and the Other
Xxxxxx Entities shall be sent to the following address:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Rise X. Xxxxxx, Esq.
Section 5.3. Inspection.
So long as this Agreement shall be in effect, this Agreement and any
amendments hereto shall be made available for inspection by a Stockholder at the
principal offices of the Company.
Section 5.4. Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
Section 5.5. Section Headings.
The section headings contained in this Agreement are for reference
purposes only and shall not affect the meaning or interpretation of this
Agreement.
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Section 5.6. Entire Agreement.
This Agreement constitutes the entire agreement and understanding
among the parties hereto and supersedes any and all prior agreements and
understandings, written or oral, relating to the subject matter hereof.
Section 5.7. Severability.
Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without rendering invalid
or unenforceable the remaining terms and provisions of this Agreement or
affecting the validity or enforceability of any of the terms or provisions of
this Agreement in any other jurisdictions, it being intended that all rights and
obligations of the parties hereunder shall be enforceable to the fullest extent
permitted by law.
Section 5.8. Other Agreements.
Nothing contained herein shall limit the ability of the Company or
Xxxxxx or the Other Xxxxxx Entities from time to time to enter into separate
agreements or arrangements relating to the Common Stock held by any stockholder
of the Company.
Section 5.9. Counterparts.
This Agreement may be signed in counterparts, each of which shall
constitute an original and which together shall constitute one and the same
agreement.
Section 5.10. Termination Date.
This Agreement shall no longer be binding or of further force or
effect as to any of the parties hereto, as of the date Xxxxxx, together with the
Other Xxxxxx Entities, collectively own less than one percent of the outstanding
Common Stock of the Company, provided, however, that no such termination shall
be effective if the Company is in breach of this Agreement.
13
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date set forth above.
PEABODY ENERGY CORPORATION
By:
--------------------------------------------
Name:
Title:
XXXXXX BROTHERS MERCHANT
BANKING PARTNERS II L.P.
By: Xxxxxx Brothers Merchant Banking
Partners II Inc., its general partner
By:
--------------------------------------------
Name:
Title:
XXXXXX BROTHERS OFFSHORE
INVESTMENT PARTNERS II L.P.
By: Xxxxxx Brothers Merchant Banking
Partners II Inc., its general partner
By:
--------------------------------------------
Name:
Title:
LB I GROUP INC.
By:
--------------------------------------------
Name:
Title:
14
XXXXXX BROTHERS CAPITAL
PARTNERS III, L.P.
By: Xxxxxx Brothers Holdings Inc., its
general partner
By:
--------------------------------------------
Name:
Title:
XXXXXX BROTHERS CAPITAL
PARTNERS IV, L.P.
By: LB I Group Inc., its general partner
By:
--------------------------------------------
Name:
Title:
XXXXXX BROTHERS MBG PARTNERS
1998 (A) L.P.
By: LB I Group Inc., its general partner
By:
--------------------------------------------
Name:
Title:
XXXXXX BROTHERS MBG PARTNERS
1998 (B) L.P.
By: LB I Group Inc., its general partner
By:
--------------------------------------------
Name:
Title:
15
XXXXXX BROTHERS MBG PARTNERS
1998 (C) L.P.
By: LB I Group Inc., its general partner
By:
--------------------------------------------
Name:
Title:
