CONTRIBUTION AGREEMENT by and among Natural Resource Partners L.P., NRP (GP) LP, Western Pocahontas Properties Limited Partnership, Great Northern Properties Limited Partnership, New Gauley Coal Corporation and NRP Investment L.P. Dated as of [ ], 2010
EXHIBIT 10.1
by and among
Natural Resource Partners L.P.,
NRP (GP) LP,
Western Pocahontas Properties Limited Partnership,
Great Northern Properties Limited Partnership,
New Gauley Coal Corporation
and
NRP Investment L.P.
Dated as of [ ], 2010
THIS CONTRIBUTION AGREEMENT (this “Agreement”) dated as of [__________], 2010 (the
“Closing Date”), is entered into by and among Natural Resource Partners L.P., a Delaware
limited partnership (the “Partnership”), NRP (GP) LP, a Delaware limited partnership (the
“General Partner”), Western Pocahontas Properties Limited Partnership, a Delaware limited
partnership (“WPP”), Great Northern Properties Limited Partnership, a Delaware limited
partnership (“Great Northern”), New Gauley Coal Corporation, a West Virginia corporation
(“New Gauley Coal”), and NRP Investment L.P., a Delaware limited partnership (“NRP
Investment”).
RECITALS
A. The General Partner is the general partner of the Partnership and holds a 2% General
Partner Interest in the Partnership, as defined in the Current Partnership Agreement (as defined
below).
B. The General Partner, WPP, Great Northern, New Gauley Coal and NRP Investment (each an
“IDR Holder,” and collectively the “IDR Holders”) each hold certain limited
partnership interests in the Partnership defined in the Current Partnership Agreement as “Incentive
Distribution Rights” (“IDRs”).
C. The IDR Holders have agreed to contribute all of the IDRs to the Partnership in exchange
for the issuance by the Partnership to the IDR Holders of an aggregate of 32,000,000 Common Units
(the “Exchange Units”), and the Partnership has agreed to issue the Exchange Units to the
IDR Holders as consideration for the contribution of the IDRs to the Partnership. Upon the
contribution of the IDRs to the Partnership, such IDRs will be cancelled and cease to exist.
D. Concurrently with the execution of this Agreement, the General Partner will amend and
restate the Third Amended and Restated Agreement of Limited Partnership of Natural Resource
Partners L.P., dated as of April 18, 2007, as amended on April 7, 2008 (as so amended, the
“Current Partnership Agreement”) to reflect the cancellation of the IDRs (such amended
and restated agreement, which may include certain other changes approved by the General Partner,
being referred to as the “Revised Partnership Agreement”).
E. The execution and adoption of the Revised Partnership Agreement, the contribution by the
IDR Holders to the Partnership of the IDRs and the issuance by the Partnership of the Exchange
Units to the IDR Holders (collectively, the “Transactions”) are conditioned on each other.
NOW, THEREFORE, in consideration of their mutual undertakings and agreements hereunder, the
parties undertake and agree as follows:
ARTICLE I
DEFINITIONS
“Exchange Units” has the meaning given such term in the Recitals.
“Agreement” has the meaning given such term in the Preamble.
“Closing Date” has the meaning given such term in the Preamble.
“Current Partnership Agreement” has the meaning given such term in the Recitals.
“General Partner” has the meaning given such term in the Preamble.
“Great Northern” has the meaning given such term in the Preamble.
“IDRs” has the meaning given such term in the Recitals.
“IDR Holder” and “IDR Holders” have the meaning given such terms in the Recitals.
“New Gauley Coal” has the meaning given such term in the Preamble.
“NRP Investment” has the meaning given such term in the Preamble.
“Partnership” has the meaning given such term in the Preamble.
“Revised Partnership Agreement” has the meaning given such term in the Recitals. The Revised
Partnership Agreement shall be in the form attached hereto as Exhibit 1.
“Securities Act” has the meaning given such term in Section 3.2(c).
“Transactions” has the meaning given such term in the Recitals.
“Units” means limited partnership interests in the Partnership defined in the Current
Partnership Agreement and the Revised Partnership Agreement as “Common Units.”
“WPP” has the meaning given such term in the Preamble.
ARTICLE II
THE TRANSACTIONS
Section 2.1 Contribution of IDRs. Each of the IDR Holders hereby grants, contributes,
transfers, assigns and conveys to the Partnership all right, title and interest in the IDRs held by
such IDR Holder and the Partnership hereby accepts such IDRs from such IDR Holders, as a
contribution by each of such IDR Holders to the capital of the Partnership.
Section 2.2 Consideration. As consideration for the contribution of the IDRs to the
Partnership, the Partnership shall issue to each of the IDR Holders the number of Exchange Units
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set forth opposite the name of such IDR Holder on Schedule I hereto. Such issuances shall
be deemed to have occurred immediately upon execution of the Revised Partnership Agreement.
Section 2.3 Partnership Agreement. Concurrently with the execution of this Agreement, the
General Partner shall execute, deliver and adopt the Revised Partnership Agreement. Immediately
upon execution of the Revised Partnership Agreement, the IDRs shall be cancelled and shall cease to
exist.
Section 2.4 Certificates for Exchange Units. On the Closing Date, the Partnership shall issue
to each of the IDR Holders a certificate representing the number of Exchange Units to be issued to
such IDR Holder pursuant to Section 2.2. Each of the certificates evidencing the Exchange Units
shall bear a legend substantially in the form set forth below and containing such other information
as the Partnership may deem necessary or appropriate:
THE UNITS (THE “UNITS”) EVIDENCED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION
HEREOF, THE HOLDER AGREES THAT IT WILL NOT DISTRIBUTE, OFFER,
RESELL, PLEDGE OR OTHERWISE TRANSFER (INDIVIDUALLY AND COLLECTIVELY,
A “TRANSFER”) THE UNITS EVIDENCED HEREBY, EXCEPT (A) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, OR (B)
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
SUCH AS THE EXEMPTION SET FORTH IN RULE 144 UNDER THE SECURITIES ACT
(IF AVAILABLE). IF THE PROPOSED TRANSFER IS TO BE MADE OTHER THAN
PURSUANT TO CLAUSE (A) ABOVE, THE HOLDER MUST, PRIOR TO SUCH
TRANSFER, FURNISH TO THE ISSUER AND THE TRANSFER AGENT SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THEY MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT OR ANY STATE OR FOREIGN SECURITIES LAW.
No fractional Units or scrip shall be issued as a result of the transactions contemplated by this
Agreement.
Section 2.5 Further Assurances. The Partnership and the IDR Holders agree to execute and
deliver, or cause to be executed and delivered, such further instruments or
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documents or take such
other action as may be reasonably necessary or convenient to carry out the transactions
contemplated hereby.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1 Partnership. The Partnership represents and warrants to the IDR Holders as
follows:
(a) the Partnership is a limited partnership duly formed and is validly existing and in good
standing under the laws of the State of Delaware and has the partnership power and authority to
execute and deliver this Agreement and, subject to the terms and conditions hereof, to carry out
its terms;
(b) the Partnership has taken all action as may be necessary to authorize the execution and
delivery of this Agreement and the consummation of the transactions contemplated by this Agreement
and the performance of its obligations hereunder. This Agreement constitutes a legal, valid and
binding obligation of the Partnership, enforceable against the Partnership in accordance with its
terms, subject to bankruptcy, receivership, insolvency, reorganization, moratorium and other laws
relating to or affecting creditors’ or secured parties’ rights generally from time to time in
effect and to general principles of equity (including concepts of materiality, reasonableness, good
faith and fair dealing), regardless of whether considered in a proceeding in equity or at law;
(c) none of the execution and delivery hereof, the performance of the Partnership’s
obligations hereunder nor the consummation of the Transactions will violate or contravene any
applicable law or the Current Partnership Agreement;
(d) on the Closing Date, the Exchange Units and the limited partner interests represented
thereby will have been duly and validly authorized and, when issued and delivered in accordance
with the terms and provisions of this Agreement, will be duly and validly issued and fully paid (to
the extent required under the Revised Partnership Agreement) and non-assessable (except as such
nonassessability may be affected by matters described in the Partnership’s filings with the
Securities and Exchange Commission);
(e) on the Closing Date and prior to the issuance of the Exchange Units, the issued and
outstanding limited partner interests of the Partnership consist of the IDRs and 74,027,836 Common
Units.
(f) The New York Stock Exchange, Inc. has authorized the listing of the Exchange Units.
Section 3.2 IDR Holders. Each IDR Holder, severally and not jointly, represents and warrants
to the Partnership as follows:
(a) such IDR Holder is a limited partnership or corporation duly formed and in good standing
under the laws of the place of its incorporation or organization and has the corporate or
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partnership power and authority to execute and deliver this Agreement and, subject to the terms and
conditions hereof, to carry out its terms;
(b) this Agreement constitutes a legal, valid and binding obligation of such IDR Holder,
enforceable against such IDR Holder Partner in accordance with its terms, subject to bankruptcy,
receivership, insolvency, reorganization, moratorium and other laws relating to or affecting
creditors’ or secured parties’ rights generally from time to time in effect and to general
principles of equity (including concepts of materiality, reasonableness, good faith and fair
dealing), regardless of whether considered in a proceeding in equity or at law;
(c) none of the execution and delivery hereof, the performance of such IDR Holder’s
obligations hereunder nor the consummation of the Transactions will violate or contravene any
applicable law, the organizational documents of such IDR Holder or any its material agreements or
any material agreement of the Partnership;
(d) such IDR Holder is an “Accredited Investor” as defined in Rule 501(a) promulgated under
the United States Securities Act of 1933, as amended (the “Securities Act”), and is
acquiring the Exchange Units for its own account, and not with a view to any distribution, resale,
subdivision, or fractionalization thereof in violation of the Securities Act or any other
applicable domestic or foreign securities law, and the General Partner has no present plans to
enter into any contract, undertaking, agreement or arrangement for any distribution, resale,
subdivision, or fractionalization of the Exchange Units in violation of the Securities Act or any
other applicable domestic or foreign securities law;
(e) such IDR Holder understands that the Exchange Units are characterized as “restricted
securities” under the federal securities law inasmuch as they are being acquired from the
Partnership in a transaction not involving a public offering and that under such law and applicable
regulations such securities may be resold under the Securities Act only in certain limited
circumstances; and
(f) such IDR Holder is the beneficial and record holder of the IDRs listed opposite such IDR
Holder’s name on Schedule I hereto and such IDR Holder has good and valid title to such
IDRs, free and clear of all liens, encumbrances or other claims; there is no subscription, option,
warrant, call, right, agreement or commitment relating to the issuance, sale, delivery,
repurchase or transfer by such IDR Holder of such IDRs, except as set forth in the Current
Partnership Agreement.
ARTICLE IV
CONDITIONS
Section 4.1 Conditions to Obligations of Each Party. Notwithstanding any other provision of
this Agreement, the respective obligations of each party to effect the transactions contemplated by
this Agreement shall be subject to the fulfillment of the condition that no order shall have been
entered and remained in effect in any action or proceeding before any federal, foreign, state or provincial court or governmental agency or other federal, foreign, state or
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provincial regulatory
or administrative agency or commission that would prevent or make illegal the consummation of the
transactions contemplated herein.
Section 4.2 Conditions to Obligations of the Partnership. Notwithstanding any other provision
of this Agreement, the obligations of the Partnership to effect the transactions contemplated by
this Agreement shall be subject to the fulfillment of the condition that the agreements and
covenants of the IDR Holders to be complied with or performed pursuant to the terms hereof shall
have been duly complied with or performed.
Section 4.3 Conditions to Obligations of the IDR Holders. Notwithstanding any other provision
of this Agreement, the obligations of the IDR Holders to effect the transactions contemplated by
this Agreement shall be subject to the fulfillment of the condition that the agreements and
covenants of the Partnership to be complied with or performed pursuant to the terms hereof shall
have been duly complied with or performed.
ARTICLE V
MISCELLANEOUS
Section 5.1 Governing Law. The laws of the State of Delaware shall govern the construction,
interpretation and effect of this Agreement without giving effect to any conflicts of law
principles.
Section 5.2 Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall constitute an original, and all of which when taken together shall constitute one and
the same original document.
Section 5.3 Amendments. All waivers, modifications, amendments or alterations of this Agreement shall require the
written approval of each of the parties to this Agreement.
Section 5.4 Assignment. This Agreement shall be binding upon and inure to the benefit of the
parties and the respective successors and assigns. This Agreement shall not be assignable by any
party hereto, except with the prior written consent of the other parties hereto.
Section 5.5 Benefits of Agreement Restricted to Parties. This Agreement is made solely for
the benefit of the parties to this Agreement, and no other person (including employees) shall have
any right, claim or cause of action under or by virtue of this Agreement.
Section 5.6 Severability. In the event that any provision of this Agreement shall finally be
determined to be unlawful, such provision shall, so long as the economic and legal substance of the
transactions contemplated hereby is not affected in any materially adverse manner as to any of the
parties to this Agreement, be deemed severed from this Agreement and every other provision of this
Agreement shall remain in full force and effect.
Section 5.7 Titles. The article, section and paragraph titles in this Agreement are only for
purposes of convenience and do not form a part of this Agreement and will not be taken to qualify,
explain, or affect any provision thereof.
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Section 5.8 Notices. All notices, requests, claims, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given when delivered if
delivered in person, by cable, telegram, telex, or telecopy and shall be deemed to have been duly
given three business days after deposit with a United States post office if delivered by registered
or certified mail (postage prepaid, return receipt requested) to the respective parties as follows:
if to the Partnership, at
Natural Resource Partners L.P.
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[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, this Agreement has been executed on behalf of each of the parties hereto
effective as of the day and year first above written.
| NATURAL RESOURCE PARTNERS L.P. |
||||||
| By: | NRP (GP) LP, its general partner | |||||
| By: | GP Natural Resource Partners LLC, its general partner | |||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||||
| Title: | Vice President, General Counsel and Secretary |
|||||
| NRP (GP) LP |
||||||
| By: | GP Natural Resource Partners LLC, its general partner | |||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||||
| Title: | Vice President, General Counsel and Secretary |
|||||
| WESTERN POCAHONTAS PROPERTIES LIMITED PARTNERSHIP |
||||||
| By: | Western Pocahontas Corporation, its general partner | |||||
| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||||
| Name: | ▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||||
| Title: | Chief Financial Officer | |||||
| GREAT NORTHERN PROPERTIES LIMITED PARTNERSHIP |
||||||
| By: | GNP Management Corp., its general partner | |||||
| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||
| Title: | Chief Financial Officer | |||
Signature Page
| NEW GAULEY COAL CORPORATION |
||||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇. | |||
| Name: | ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇. | |||
| Title: | Chairman | |||
| NRP INVESTMENT L.P. |
||||
| By: | ▇▇▇▇▇▇▇▇▇ Coal Management LLC, its general partner | |||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇. | |||
| Name: | ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇. | |||
| Title: | Sole Member | |||
Signature Page
Schedule I
| Number of | ||||||||
| IDR Holder | Exchange Units | IDRs Owned | ||||||
NRP (GP) LP
|
20,800,000 | 65.00 | % | |||||
Western Pocahontas Properties Limited Partnership
|
6,383,200 | 19.95 | % | |||||
Great Northern Properties Limited Partnership
|
1,361,600 | 4.25 | % | |||||
New Gauley Coal Corporation
|
255,200 | 0.80 | % | |||||
NRP Investment L.P.
|
3,200,000 | 10.00 | % | |||||
Total
|
32,000,000 | 100.00 | % | |||||