EXHIBIT 10.1
[EXECUTION COPY]
REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
XXXXX RIVER COAL COMPANY
AND THE
SHAREHOLDERS IDENTIFIED HEREIN
DATED MAY 6, 2004
TABLE OF CONTENTS
PAGE
1. Demand Registration....................................................1
2. Piggyback Registrations................................................2
3. Registration Procedures................................................4
4. Participations in Underwritten Registrations...........................8
5. Holdback Agreement.....................................................9
6. Indemnification........................................................9
7. Covenants Relating to Rule 144........................................12
8. Other Registration Rights.............................................12
9. Definitions...........................................................13
10. Miscellaneous.........................................................16
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REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT is made and entered into as of May 6,
2004, by and among Xxxxx River Coal Company, a Virginia corporation (the
"COMPANY"), and the holders (each a "Shareholder" and, collectively, the
"SHAREHOLDERS") of Common Stock ("COMMON STOCK") of the Company signatory
hereto.
WHEREAS, pursuant to the First Amended Joint Plan of Reorganization
under Chapter 11 of the Bankruptcy Code of Xxxxx River Coal Company, ET AL.,
dated as of May 6, 2004 (the "CHAPTER 11 PLAN"), upon satisfaction of certain
conditions set forth therein, the Company will issue Common Stock to the
Shareholders in satisfaction of the Allowed Senior Secured Claims; and
WHEREAS, pursuant to the Chapter 11 Plan, the Company is required to
enter into this Agreement with the Shareholders in order to grant them certain
registration rights with respect to the Common Stock;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. DEMAND Registration
(a) DEMAND NOTICE. At any time after the date hereof,
Beneficiaries holding not less than 33% of the Registrable Shares then
outstanding may request in writing (a "DEMAND NOTICE") that the Company file a
registration statement under the Securities Act to register Registrable Shares
under the Securities Act for public sale (the "DEMAND RIGHTS"). Such Demand
Notice must be provided by to the Company in writing and must designate the
specific number of Registrable Shares proposed to be sold by each of the
Beneficiaries in such public offering and the proposed plan of distribution for
the Registrable Shares. Prior to providing the Company with any such Demand
Notice, any Beneficiary intending to present a Demand Notice to the Company
shall provide reasonable notice to the other Beneficiaries of its intention to
present such Demand Notice and provide such other Beneficiaries with the
opportunity to sell Registrable Shares in connection with such registration.
(b) SHELF REGISTRATION. The Company shall use its reasonable
best efforts to cause to be filed with the SEC as promptly as practicable after
the receipt of the Demand Notice a registration statement for an offering to be
made on a continuous basis pursuant to Rule 415 covering the Registrable Shares
listed in the Demand Notice(the "INITIAL SHELF REGISTRATION"). The Initial Shelf
Registration shall be on Form S-1 or another appropriate form permitting
registration of such Registrable Shares for resale by Beneficiaries. Other than
registration of shares issued to the Company's employees, officers or directors,
the Company shall not permit any securities other than such Registrable Shares
to be included in the Initial Shelf Registration or any Subsequent Shelf
Registration (as defined below).
(c) SHELF EFFECTIVENESS DATE. The Company shall use its
reasonable best efforts to cause the Shelf Registration to be declared effective
under the Securities Act as promptly as practicable after the date the Initial
Shelf Registration is first filed with the SEC (the
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"SHELF EFFECTIVENESS DATE") and to keep the Initial Shelf Registration
continuously effective under the Securities Act until all Registrable Shares
covered by the Initial Shelf Registration have been sold in the manner set forth
and as contemplated in the Initial Shelf Registration, a Subsequent Shelf
Registration or otherwise (the "SHELF EFFECTIVENESS PERIOD"); provided, however,
that no Beneficiary shall be entitled to be named as a selling securityholder in
the Shelf Registration or to use the prospectus forming a part thereof for
resales of Registrable Shares unless such Beneficiary has provided the Company,
within five Business Days after receipt of a request therefor, with the
information required by the paragraph immediately under Section 3(xvii); and
provided, further, that the Shelf Effectiveness Period in respect of the Initial
Shelf Registration shall be extended to the extent required to permit dealers to
comply with the applicable prospectus delivery requirements of Rule 174 under
the Securities Act and as otherwise provided herein.
(d) WITHDRAWAL OF STOP ORDERS; SUBSEQUENT SHELF
REGISTRATIONS. If the Initial Shelf Registration or any Subsequent Shelf
Registration ceases to be effective for any reason at any time during the Shelf
Effectiveness Period (other than because of the sale of all of the Registrable
Shares), the Company shall use its reasonable best efforts to obtain the prompt
withdrawal of any order suspending the effectiveness thereof, and in any event
shall within 30 days of such cessation of effectiveness amend such Shelf
Registration Statement in a manner to obtain the withdrawal of the order
suspending the effectiveness thereof, or file an additional Shelf Registration
Statement pursuant to Rule 415 covering all of the Registrable Shares covered by
and not sold under the Initial Shelf Registration or an earlier Subsequent Shelf
Registration (each, a "SUBSEQUENT SHELF REGISTRATION"). If a Subsequent Shelf
Registration is filed, the Company shall use its reasonable best efforts to
cause the Subsequent Shelf Registration to be declared effective under the
Securities Act as soon as practicable after such filing and to keep such
subsequent Shelf Registration continuously effective for the duration of the
Shelf Effectiveness Period.
(e) SUPPLEMENTS AND AMENDMENTS. The Company shall promptly
supplement and amend any Shelf Registration Statement if required by the rules,
regulations or instructions applicable to the registration form used for such
Shelf Registration, if required by the Securities Act.
2. Piggyback Registrations.
(a) RIGHT TO INCLUDE REGISTRABLE SHARES. If the Company, at
any time while Registrable Shares are outstanding, proposes after the date
hereof to effect a Piggyback Registration, it will at such time give prompt
written notice (a "NOTICE OF PIGGYBACK REGISTRATION") to all Beneficiaries of
its intention to do so and of such Beneficiaries' rights under this SECTION 2,
which Notice of Piggyback Registration shall include a description of the
intended method of disposition of such securities. Upon the written request of
any such Beneficiary made within 30 days after such Notice of Piggyback
Registration (which request shall specify the Registrable Shares intended to be
disposed of by such Beneficiary), the Company will, subject to the other
provisions of this Agreement, include in the registration statement relating to
such Piggyback Registration all Registrable Shares that the Company has been so
requested to register. Notwithstanding the foregoing, if, at any time after
giving a Notice of Piggyback Registration and prior to the effective date of the
registration statement filed in connection with
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such registration, the Company shall determine for any reason not to register or
to delay registration of such securities, the Company may, at its election, give
prompt written notice of such determination to each Beneficiary and, thereupon,
(i) in the case of a determination not to register, shall be relieved of its
obligation to register any Registrable Shares in connection with such
registration, and (ii) in the case of a determination to delay registering,
shall be permitted to delay registering any Registrable Shares for the same
period as the delay in registering such other securities.
(b) UNDERWRITTEN PIGGYBACK OFFERINGS. If the Company, at any
time while Registrable Shares are outstanding, proposes to register any of its
securities in a Piggyback Registration and such securities are to be distributed
by or through one or more underwriters, the Company will, subject to the
provisions of SECTION 2(D), use its reasonable best efforts, unless otherwise
requested by any Beneficiary, to arrange for such underwriters to include the
Registrable Shares to be offered and sold by such Beneficiary among the
securities to be distributed by such underwriters, and such Beneficiary shall be
obligated to sell its Registrable Shares in such Piggyback Registration through
such underwriters on the same terms and conditions as apply to the other Company
securities to be sold by such underwriters in connection with such Piggyback
Registration. The Beneficiaries holding Registrable Shares to be distributed by
such underwriters shall be parties to the underwriting agreement between the
Company and such underwriter or underwriters and may, at their option, require
that any or all of the representations and warranties by, and the other
agreements on the part of, the Company to and for the benefit of such
underwriters also be made to and for their 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 their obligations.
(c) PRIORITY IN CUTBACK REGISTRATIONS. If the Managing
Underwriter with respect to a Piggyback Registration advises the Company and the
Requesting Beneficiaries that, in its opinion, the number of securities
requested to be included in such registration (including securities of the
Company which are not Registrable Shares) exceed the number which can be sold in
such offering without a reduction in the anticipated number of, or in the
selling price anticipated to be received for, the securities to be sold in such
Public Offering, then:
(i) if such registration is a primary registration
on behalf of the Company, the Company will include therein: (x) first up to the
full amount of securities to be included therein for the account of the Company
that, in the opinion of the Managing Underwriter, can be sold, and (y) second,
up to the full amount of Registrable Shares which the Requesting Beneficiaries
propose to include in such registration that, in the opinion of the Managing
Underwriter, can be sold without adversely affecting the success of the
offering; and
(ii) if such registration is an underwritten
secondary registration on behalf of holders of equity securities of the Company,
the Company will include therein: (x) first up to the full amount of securities
to be included therein for the account of the Company that, in the opinion of
the Managing Underwriter, can be sold, (y) second, up to the full amount of
Registrable Shares which the Requesting Beneficiaries propose to include in such
registration that, in the opinion of the Managing Underwriter, can be sold, and
(z) third, all other securities proposed to be sold by any other Persons that,
in the opinion of the Managing Underwriter, can be sold without adversely
affecting the success of the offering.
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To the extent that the number of securities held by any particular group to be
included in any such offering must, in the opinion of the Managing Underwriter,
be so reduced, the aggregate number of shares held by such group that, in the
opinion of the Managing Underwriter, can be sold in such offering, will be
allocated pro rata among the members of such group in proportion to the number
of securities eligible for registration in such offering held by each member of
such group (or, in the case of such a group other than the Beneficiaries, in
accordance with the priorities then existing among the Company and such holders
or, if none, as the Company may otherwise determine).
3. Registration Procedures. (a) If and whenever the Company is
required to effect the registration of any Registrable Shares under the
Securities Act pursuant to SECTIONS 1 OR 2, the Company will use its reasonable
best efforts to effect the registration and sale of such Registrable Shares in
accordance with the intended method of disposition thereof. Without limiting the
foregoing, the Company in each such case will, as expeditiously as possible, use
its reasonable best efforts to:
(i) In the case of a registration pursuant to
Section 2, prepare and file with the Commission as soon as practicable the
requisite registration statement to effect such registration and to cause such
registration statement to become and remain effective until the earlier of (i)
such time as all of such securities have been disposed of in accordance with the
intended methods of disposition by the seller or sellers thereof set forth in
such registration statement (but in any event not before the expiration of any
longer period required under the Securities Act) and (ii) 180 days after such
registration statement becomes effective, or such longer period as in the
opinion of counsel for the Managing Underwriter, if any, a prospectus is
required by law to be delivered in connection with sales of Registrable Shares
by an underwriter or dealer; PROVIDED that as far in advance as practical before
filing such registration statement or any amendment thereto, the Company will
furnish to the Requesting Beneficiaries copies of reasonably complete drafts of
all such documents proposed to be filed (including exhibits), and any such
Beneficiary shall have the opportunity to object to any information pertaining
solely to such Beneficiary that is contained therein and the Company will make
the corrections reasonably requested by such Beneficiary with respect to such
information prior to filing any such registration statement or amendment;
(ii) prepare and file with the Commission such
amendments and supplements to any registration statement filed pursuant to this
Agreement and any prospectus used in connection therewith as may be necessary to
maintain the effectiveness of such registration statement and to comply with the
provisions of the Securities Act with respect to the disposition of all
Registrable Shares covered by such registration statement, in accordance with
the intended methods of disposition thereof for the period set forth in Section
1(b) above or in Section 3(i) above, as applicable;
(iii) promptly notify each Beneficiary in the case of
a Shelf Registration Statement and each Requesting Beneficiary in the case of a
registration statement filed pursuant to Section 2 and the Managing Underwriter,
if any:
(A) when such registration statement or any prospectus used
in connection therewith, or any amendment or supplement thereto, has
been filed
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and, with respect to such registration statement or any post-effective
amendment thereto, when the same has become effective;
(B) of any written comments from the Commission with respect
to any filing referred to in clause (i) and of any written request by
the Commission for amendments or supplements to such registration
statement or prospectus;
(C) of the notification to the Company by the Commission of
its initiation of any proceeding with respect to the issuance by the
Commission of any stop order suspending the effectiveness of such
registration statement; and
(D) of the receipt by the Company of any notification with
respect to the suspension of the effectiveness of such registration
statement;
(iv) furnish to each seller of Registrable Shares
covered by any registration statement filed pursuant to this Agreement such
number of conformed copies of such registration statement and of each amendment
and supplement thereto (in each case including all exhibits and documents
incorporated by reference), such number of copies of the prospectus contained in
such registration statement (including each preliminary prospectus and any
summary prospectus) and any other prospectus filed under Rule 424 promulgated
under the Securities Act relating to such holder's Registrable Shares, and such
other documents, as such seller may reasonably request to facilitate the
intended disposition of its Registrable Shares;
(v) register or qualify all Registrable Shares
covered by any registration statement filed pursuant to this Agreement under
such other securities or blue sky laws of such jurisdictions as each Beneficiary
shall reasonably request, to keep such registration or qualification in effect
for so long as such registration statement remains in effect, and take any other
action which may be reasonably necessary or advisable to enable such Beneficiary
to consummate the disposition in such jurisdictions of the Registrable Shares
owned by such Beneficiary, except that the Company shall not for any such
purpose be required (i) to qualify generally to do business as a foreign
corporation in any jurisdiction wherein it would not but for the requirements of
this PARAGRAPH (V) be obligated to be so qualified, (ii) to subject itself to
taxation in any such jurisdiction or (iii) to take any action which would
subject it to general service of process in any jurisdiction wherein it would
not but for the requirements of this PARAGRAPH (V) be so subject;
(vi) notify each Beneficiary covered by any
registration statement filed pursuant to this Agreement, (A) at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act, (B) of the happening of any event as a result of which any prospectus
included in such registration statement, 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, in the light of the
circumstances under which they were made, not misleading and, (C) at the request
of any such Beneficiary, promptly prepare and furnish to such Beneficiary a
reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such securities, such prospectus shall not include an untrue
statement of a material fact or omit to state
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a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading;
(vii) make available for inspection by any Beneficiary
covered by any registration statement filed pursuant to this Agreement, any
underwriter participating in any disposition pursuant to such registration
statement and any attorney, accountant or other agent retained by any such
seller or underwriter (collectively, the "INSPECTORS"), all financial and other
records, pertinent corporate documents and properties of the Company
(collectively, the "RECORDS") as shall be reasonably necessary to enable them to
exercise their due diligence responsibility, and cause the Company's officers,
directors and employees to supply all information reasonably requested by any
such 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 the registration statement, (ii) the release of such Records is
ordered pursuant to a subpoena or other order from a court of competent
jurisdiction or (iii) the information in such Records has been made generally
available to the public. Each Beneficiary agrees by acquisition of its
Registrable Shares 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 the Company's expense, to undertake appropriate action to
prevent disclosure of the Records deemed confidential;
(viii) provide a transfer agent and registrar for all
Registrable Shares covered by any registration statement filed pursuant to this
Agreement not later than the effective date of such registration statement; and
(ix) use its reasonable best efforts to cause all
Registrable Shares covered by any registration statement filed pursuant to this
Agreement to be listed, upon official notice of issuance, on any securities
exchange on which any of the securities of the same class as the Registrable
Shares are then listed and, if not so listed, to be listed on the NASD automated
quotation system and, if listed on the NASD automated quotation system, use its
reasonable best efforts to secure designation of all such Registrable Shares
covered by such registration statement as a Nasdaq "national market system
security" within the meaning of Rule 11Aa2-1 of the Securities and Exchange
Commission or, failing that, to secure Nasdaq authorization for such Registrable
Shares and, without limiting the generality of the foregoing, to arrange for at
least two market makers to register as such with respect to such Registrable
Shares with the NASD.
(x) enter into such customary agreements (including
underwriting agreements in customary form) and take all such other reasonable
actions as the holders of a majority of the Registrable Shares included in any
registration statement filed pursuant to this Agreement or the underwriters, if
any, reasonably request in order to expedite or facilitate the disposition of
such Registrable Shares; PROVIDED, that no holder of Registrable Shares shall
have any indemnification or contribution obligation inconsistent with SECTION 6
hereof;
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(xi) otherwise use its reasonable best efforts to
comply with all applicable rules and regulations of the Securities and Exchange
Commission, and make available to its security holders, as soon as reasonably
practicable, but not later than 18 months after the effective date of the
registration statement, an earnings statement covering the period of at least
twelve months beginning with the first day of the Company's first full calendar
quarter after the effective date of the registration statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the Securities Act
and Rule 158 thereunder;
(xii) obtain one or more comfort letters, dated the
effective date of any registration statement filed pursuant to this Agreement
(and, if such registration includes an underwritten public offering, dated the
date of the closing under the underwriting agreement), signed by the Company's
independent public accountants in customary form and covering such matters of
the type customarily covered by comfort letters as the holders of a majority of
the Registrable Shares included in such registration statement and being sold
reasonably request;
(xiii) provide a legal opinion of the Company's outside
counsel, dated the effective date of any registration statement filed pursuant
to this Agreement (and, if such registration includes an underwritten public
offering, dated the date of the closing under the underwriting agreement), with
respect to the registration statement, each amendment and supplement thereto,
the prospectus included therein (including the preliminary prospectus) and such
other documents relating thereto in customary form and covering such matters of
the type customarily covered by legal opinions of such nature (in a form
reasonably acceptable to the holders of a majority of the Registrable Shares
included in the registration).
(xiv) cooperate with the sellers of Registrable Shares
covered by any registration statement filed pursuant to this Agreement and the
managing underwriter or agent, if any, to facilitate the timely preparation and
delivery of certificates (not bearing any restrictive legends) representing
securities to be sold under the registration statement, and enable such
securities to be in such denominations and registered in such names as the
managing underwriter or agent, if any, or such holders may request;
(xv) make every reasonable effort to prevent the
issuance of any stop order suspending the effectiveness of any registration
statement filed pursuant to this Agreement or of any order preventing or
suspending the use of any preliminary prospectus and, if any such order is
issued, to obtain the withdrawal of any such order at the earliest possible
moment;
(xvi) if requested by the managing underwriter or
agent or any holder of Registrable Shares covered by any registration statement
filed pursuant to this Agreement, promptly incorporate in a prospectus
supplement or post-effective amendment such information as the managing
underwriter or agent or such holder reasonably requests to be included therein,
including, without limitation, with respect to the number of Registrable Shares
being sold by such holder to such underwriter or agent, the purchase price being
paid therefor by such underwriter or agent and with respect to any other terms
of the underwritten offering of the Registrable Shares to be sold in such
offering; and make all required filings of such prospectus supplement or
post-effective amendment as soon as practicable after being notified of the
matters incorporated in such prospectus supplement or post-effective amendment;
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(xvii) cooperate with each seller of Registrable Shares
and each underwriter or agent participating in the disposition of such
Registrable Shares and their respective counsel in connection with any filings
required to be made with the NASD.
Subject to the provisions of Section 1(b), the Company may
require each Beneficiary as to which any registration is being effected to, and
each such Beneficiary, as a condition to including Registrable Shares in such
registration shall, furnish the Company with such information and affidavits
regarding such Beneficiary and the distribution of such securities as the
Company may from time to time reasonably request in writing within a reasonable
time after receiving such request.
Each Beneficiary agrees by acquisition of its Registrable Shares
that, upon receipt of any notice from the Company of the happening of any event
of the kind described in PARAGRAPH (VI), such Beneficiary will forthwith
discontinue such Beneficiary's disposition of Registrable Shares pursuant to the
registration statement relating to such Registrable Shares until such
Beneficiary's receipt of the copies of the supplemented or amended prospectus
contemplated by PARAGRAPH (VI) and, if so directed by the Company, will deliver
to the Company all copies, other than permanent file copies, then in such
Beneficiary's possession of the prospectus relating to such Registrable Shares
current at the time of receipt of such notice.
(b) CESSATION OF SALES. Each Beneficiary agrees that, upon
receipt of any notice from the Company of the happening of any event of the kind
described in Section 3(a)(vi)(B) hereof, such Beneficiary will forthwith
discontinue disposition of Registrable Shares pursuant to the then current
prospectus until (i) such Beneficiary is advised in writing by the Company that
a new registration statement covering the offer of Registrable Shares has become
effective under the Securities Act, (ii) such Beneficiary receives copies of any
required supplemented or amended prospectus, or (iii) such Beneficiary is
advised in writing by the Company that the use of the prospectus may be resumed;
provided, however, that the Company shall use its reasonable best efforts to
cure any such misstatement, omission or event that is applicable to the
registration statement as soon as reasonably practicable after delivery of such
notice pursuant to Section 3(a)(vi)(B) hereof. Such periods of discontinued use
of the registration statement shall not exceed 120 days in any 365-day period.
If so directed by the Company, on the happening of such event, each Beneficiary
will deliver to the Company (at the Company's expense) all copies, other than
permanent file copies then in such Beneficiary's possession, of the prospectus
covering such Registrable Shares current at the time of receipt of such notice.
(c) REGISTRATION EXPENSES. The Company will pay all
Registration Expenses incurred in connection with each registration undertaken
pursuant to this agreement. In connection with each Piggyback Registration, in
addition to such Registration Expenses, the Company will reimburse the holders
of Registrable Shares covered by such registration for the reasonable fees and
disbursements of one counsel chosen by the holders of a majority of the
Registrable Shares included in such registration.
4. Participations in Underwritten Registrations. Any Requesting
Beneficiary participating in an underwritten offering pursuant to this Section 4
shall,
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if required by the Managing Underwriter of such offering, enter into an
underwriting agreement in a form customary for underwritten offerings of the
same general type as such offering. No Requesting Beneficiary may participate in
such underwritten offering unless such Beneficiary agrees to sell its
Registrable Shares 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 underwriting
agreement. If any Requesting Beneficiary disapproves of the terms of an
underwriting, such Beneficiary may elect to withdraw therefrom and from such
registration by notice to the Company and the Managing Underwriter, and each of
the remaining Requesting Beneficiaries shall be entitled to increase the number
of Registrable Shares being registered to the extent of the Registrable Shares
so withdrawn in the proportion which the number of Registrable Shares being
registered by such remaining Requesting Beneficiary bears to the total number of
Registrable Shares being registered by all such remaining Requesting
Beneficiaries.
5. Holdback Agreement. Unless the Managing Underwriter (or, in the
case of a non-underwritten Public Offering, the Company) otherwise agrees, and
to the extent not otherwise inconsistent with applicable law, each Beneficiary,
by acquisition of its Registrable Shares, agrees not to effect any public sale
or distribution (including a sale under Rule 144 or Regulation S (or any similar
provisions then in effect)) of such securities, or any securities convertible
into or exchangeable or exercisable for such securities, (a) during the seven
days prior to the effective date of any registration statement filed by the
Company in connection with a Public Offering and (b) during the 120 days after
the effective date of any registration statement filed by the Company in
connection with a Public Offering, in either case except as part of such
registration statement, whether or not such holder participates in such
registration.
6. Indemnification.
(a) INDEMNIFICATION BY THE COMPANY. The Company shall, to
the full extent permitted by law, indemnify and hold harmless each Beneficiary
who sells Registrable Shares pursuant to a Shelf Registration Statement or any
registration statement filed in connection with a Piggyback Registration, its
directors and officers, and each other Person, if any, who controls any such
Beneficiary within the meaning of the Securities Act, against any and all
losses, claims, damages, expenses or liabilities (or actions in respect
thereof), joint or several (together, "LOSSES"), to which such Beneficiary or
any such director or officer or controlling Person may become subject under the
Securities Act or otherwise, insofar as such Losses (or actions or proceedings,
whether commenced or threatened, or settlement of any litigation, in respect
thereof) arise out of or are based upon (x) any untrue statement or alleged
untrue statement of any material fact contained in any such registration
statement, any preliminary prospectus, final prospectus or summary prospectus
contained therein, or any amendment or supplement thereto, together with
documents incorporated therein by reference, or any omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading or (y) any violation or alleged violation by the
Company of any federal, state or common law rule or regulation applicable to the
Company and relating to action or inaction required of the Company in connection
with any registration or qualification of Registrable Shares, and the Company
will reimburse such Beneficiary and each such director, officer and controlling
Person for any legal or any other expenses reasonably incurred by them,
including
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any amounts paid in connection with any settlement effected with the consent of
the Company, which consent will not be unreasonably withheld or delayed, in
connection with investigating or defending any such Losses; PROVIDED that the
Company shall not be liable in any such case to the extent that any such Losses
arise out of or are based upon (A) an untrue statement or alleged untrue
statement or omission or alleged omission made in any such registration
statement, preliminary prospectus, final prospectus, summary prospectus,
amendment or supplement in reliance upon and in conformity with written
information prepared and furnished to the Company by or on behalf of such
Beneficiary expressly for such use or (B) such Beneficiary's failure to send or
give a copy of the final prospectus to the Persons asserting any untrue
statement or alleged untrue statement or omission or alleged omission at or
prior to the written confirmation of the sale of Registrable Shares to such
Person if such statement or omission was corrected in such final prospectus.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of such Beneficiary or any other person
asserting the right to be indemnified, and shall survive the transfer of such
securities by such Beneficiary. In connection with an underwritten offering, the
Company will indemnify such underwriters, their officers and directors and each
Person who controls such underwriters (within the meaning of the Securities Act)
to the same extent as provided above with respect to the indemnification of the
holders of Registrable Shares.
(b) INDEMNIFICATION BY THE SELLERS. Each Beneficiary holding
Registrable Shares which are included or are to be included in any Shelf
Registration Statement or any registration statement filed in connection with a
Piggyback Registration, as a condition to including Registrable Shares in such
registration statement, shall, to the full extent permitted by law, indemnify
and hold harmless the Company, its directors and officers, and each other
Person, if any, who controls the Company within the meaning of the Securities
Act, against any Losses to which the Company or any such director or officer or
controlling Person may become subject under the Securities Act or otherwise,
insofar as such Losses (or actions or proceedings, whether commenced or
threatened, or settlement of any litigation, in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in any such registration statement, any preliminary prospectus,
final prospectus or summary prospectus contained therein, or any amendment or
supplement thereto, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, if such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information prepared and furnished to the Company by or on behalf of such
Beneficiary expressly for such use; and such Beneficiary will reimburse the
Company and each such director, officer and controlling Person for any legal or
any other expenses reasonably incurred by them in connection with investigating
or defending any such Losses; PROVIDED, HOWEVER, that the obligation to
indemnify will be individual (and not joint and several) to each Beneficiary and
will be limited to the net amount of proceeds received by such holder from the
sale of Registrable Shares pursuant to such registration statement. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of the Company or any other person asserting the right to
be indemnified, and shall survive the transfer of Registrable Shares by such
Beneficiary. Each Beneficiary shall also indemnify each other Person who
participates (including as an underwriter) in the offering or sale of
Registrable Shares, their officers and directors, employees, agents and
partners, and each
10
other Person, if any, who controls any such participating Person within the
meaning of the Securities Act to the same extent as provided above with respect
to the Company.
(c) NOTICES OF CLAIMS, ETC. Promptly after receipt by an
Indemnified Party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding PARAGRAPH (A) OR (B) of this
SECTION 6, such Indemnified Party will, if a claim in respect thereof is to be
made against an Indemnifying Party pursuant to such paragraphs, give written
notice to the latter of the commencement of such action, PROVIDED that the
failure of any Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party of its obligations under the preceding paragraphs
of this SECTION 6, except to the extent that the Indemnifying Party is actually
prejudiced by such failure to give notice. In case any such action is brought
against an Indemnified Party, the Indemnifying Party shall be entitled to
participate in and to assume the defense thereof, jointly with any other
Indemnifying Party similarly notified to the extent that it may wish, 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
the defense thereof, the Indemnifying Party shall not be liable to such
Indemnified Party for any legal or other expenses subsequently incurred by the
latter in connection with the defense thereof other than reasonable costs of
investigation; PROVIDED that the Indemnified Party may participate in such
defense at the Indemnified Party's expense; and PROVIDED FURTHER that the
Indemnified Party or Indemnified Parties shall have the right to employ one
counsel to represent it or them if, in the written opinion of legal counsel to
the Indemnified Party or Indemnified Parties, it is advisable for it or them to
be represented by separate counsel by reason of having legal defenses which are
different from or in addition to those available to the Indemnifying Party or
there is some other conflict of interest between the Indemnifying Party and the
Indemnified Party, and in that event the reasonable fees and expenses of such
separate counsel to the Indemnified Parties shall be paid by the Indemnifying
Party. If the Indemnifying Party is not entitled to, or elects not to, assume
the defense of a claim, it will not be obligated to pay the fees and expenses of
more than one counsel for the Indemnified Parties with respect to such claim,
unless in the reasonable judgment of any Indemnified Party a conflict of
interest may exist between such Indemnified Party and any other Indemnified
Parties with respect to such claim, in which event the Indemnifying Party shall
be obligated to pay the fees and expenses of such additional counsel for the
Indemnified Parties or counsels. No Indemnifying Party shall consent to entry of
any judgment or enter into any settlement without the consent of the Indemnified
Party which does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such Indemnified Party of a release from all liability
in respect to such claim or litigation. No Indemnifying Party shall be subject
to any liability for any settlement made without its consent, which consent
shall not be unreasonably withheld or delayed. Each Indemnified Party shall
furnish such information regarding itself or the claim in question as the
Indemnifying Party or Indemnifying Parties may reasonably request in writing and
as shall be reasonably required in connection with defense of such claim and
litigation resulting therefrom.
(d) CONTRIBUTION. If the indemnity and reimbursement
obligation provided for in any paragraph of this SECTION 6 is held by a court of
competent jurisdiction to be unavailable or insufficient to hold harmless an
Indemnified Party in respect of any Losses (or actions or proceedings in respect
thereof), claims, damages or liabilities referred to therein, then the
Indemnifying Party shall contribute to the amount paid or payable by the
Indemnified Party as a result of such Losses (or actions or proceedings in
respect thereof), claims, damages or
11
liabilities in such proportion as is appropriate to reflect the relative fault
of the Indemnifying Party on the one hand and the Indemnified Party and any
other sellers participating in the registration statement on the other hand in
connection with statements or omissions which resulted in such Losses, as well
as any other relevant equitable considerations. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Indemnifying Party or the
Indemnified Party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue 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 (even if the sellers of Registrable Shares were treated as one entity
for this purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to in the first sentence of
this paragraph. 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. Notwithstanding the provisions of this SECTION 6, no
seller of Registrable Shares shall be required to contribute any amount in
excess of the net proceeds received by such seller from the sale of Registrable
Shares covered by the registration statement filed pursuant hereto. No
Indemnified Party guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from the
Indemnifying Party if the Indemnifying Party was not guilty of such fraudulent
misrepresentation.
(e) INDEMNIFICATION PAYMENTS. The indemnification required
by this SECTION 6 shall be made by periodic payments of the amount thereof
during the course of the investigation or defense, as and when bills are
received or Losses are incurred.
7. Covenants Relating to Rule 144. If at any time the Company is
required to file reports in compliance with either Section 13 or Section 15(d)
of the Exchange Act, the Company will file reports in compliance with the
Exchange Act, will comply with all rules and regulations of the Commission
applicable in connection with the use of Rule 144 and take such other actions
and furnish any Beneficiary with such other information as such Beneficiary may
request in order to avail itself of such rule or any other rule or regulation of
the Commission allowing such Beneficiary to sell any Registrable Shares without
registration, and will, at its expense, forthwith upon the request of any
Beneficiary, deliver to such Beneficiary a certificate, signed by the Company's
principal financial officer, stating (a) the Company's name, address and
telephone number (including area code), (b) the Company's Internal Revenue
Service identification number, (c) the Company's Commission file number, (d) the
number of shares of each class of Registrable Shares outstanding as shown by the
most recent report or statement published by the Company, and (e) whether the
Company has filed the reports required to be filed under the Exchange Act for a
period of at least 90 days prior to the date of such certificate and in addition
has filed the most recent annual report required to be filed thereunder.
8. Other Registration Rights.
(a) NO EXISTING AGREEMENTS. The Company represents and
warrants to the parties hereto that there is not in effect on the date hereof
any agreement by the Company
12
(other than this Agreement) pursuant to which any holders of securities of the
Company have a right to cause the Company to register or qualify such securities
under the Securities Act or any securities or blue sky laws of any jurisdiction.
(b) NO INCONSISTENT AGREEMENTS. The Company has not, as of
the date hereof, and will not, on or after the date hereof, except as provided
in SECTION 8(C), enter into any agreement with respect to its securities which
conflicts with the rights granted to the Beneficiaries in this Agreement or is
otherwise inconsistent with the provisions hereof.
(c) REGISTRATION OF SECURITIES OTHER THAN REGISTRABLE
SHARES. Without the written consent of the holders of a majority of the
then-outstanding Registrable Shares, the Company will not grant to any Person
the right to request the Company to register any securities of the Company under
the Securities Act unless the rights so granted are subject to the prior rights
of the Beneficiaries set forth herein, and, if exercised, would not otherwise
conflict or be inconsistent with the provisions of this Agreement.
(d) FOREIGN REGISTRATIONS. In the event the Company's board
of directors (the "BOARD") approves a public offering or sale of the common
stock of the Company (or other securities representing, or exercisable for or
convertible into, shares of common stock) pursuant to the securities laws of a
country other than the United States of America, the Board shall have the power
to amend this Agreement in such manner as it shall deem reasonably necessary to
ensure that the provisions of this Agreement will apply in a substantial manner
to any offering or sale under such foreign securities laws.
9. Definitions.
(a) Except as otherwise specifically indicated, the
following terms will have the following meanings for all purposes of this
Agreement:
"AGREEMENT" means this Registration Rights Agreement, as the same may be
amended from time to time hereafter.
"ALLOWED SENIOR SECURED CLAIM" has the meaning ascribed to it in the
Chapter 11 Plan.
"BANKRUPTCY CODE" means title 11 of the United States Code, as amended
from time to time.
"BENEFICIARY" means each Person who is a signatory to this agreement or
each Person who received beneficial ownership of shares of Common Stock pursuant
to the Chapter 11 Plan who may reasonably be deemed an "underwriter" with
respect to the Common Stock (as defined in section 1145(b)(i) of the Bankruptcy
Code) (including, without limitation, any person who is an "issuer" with respect
to such securities (as defined in Section 2(11) of the Securities Act)), or
their respective permitted assigns pursuant to SECTION 10(G).
"BUSINESS DAY" means a day that is not a Saturday, Sunday or other day
on which commercial banks in New York City are authorized or required by law to
remain closed.
13
"CHAPTER 11 PLAN" has the meaning ascribed to it in the preamble.
"COMMISSION" means the United States Securities and Exchange Commission,
or any successor governmental agency or authority.
"COMMON STOCK" has the meaning ascribed to it in the preamble.
"COMPANY" has the meaning ascribed to it in the preamble.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"INDEMNIFIED PARTY" means a party entitled to indemnity in accordance
with SECTION 6.
"INDEMNIFYING PARTY" means a party obligated to provide indemnity in
accordance with SECTION 6.
"INSPECTORS" has the meaning ascribed to it in SECTION 3(G).
"LOSSES" has the meaning ascribed to it in SECTION 6(A).
"MANAGING UNDERWRITER" means, with respect to any Public Offering, the
underwriter or underwriters managing such Public Offering, if any.
"NASD" means the National Association of Securities Dealers.
"NOTICE OF PIGGYBACK REGISTRATION" has the meaning ascribed to it in
Section 2(a).
"PERSON" means any individual, partnership, corporation (including a
business trust), company, joint stock company, trust, unincorporated
association, joint venture or any other entity or a government or any political
subdivision or agency thereof.
"PIGGYBACK REGISTRATION" means any registration of any class of
Registrable Shares under the Securities Act (other than the first Public
Offering and other than a registration in respect of a dividend reinvestment or
similar plan for stockholders of the Company or on Form S-4 or Form S-8
promulgated by the Commission, or any successor or similar forms thereto),
whether for sale for the account of the Company or for the account of any holder
of securities of the Company.
"PUBLIC OFFERING" means any BONA FIDE public offering of equity
securities (or securities exchangeable for or convertible into equity
securities) of the Company pursuant to an effective registration statement under
the Securities Act, or any other applicable law.
"RECORDS" has the meaning ascribed to it in SECTION 3(G).
"REGISTRABLE SHARES" means shares of Common Stock acquired by the
Beneficiaries on or after the date hereof, pursuant to the Chapter 11 Plan or
otherwise, and any shares of Common Stock or other securities that may be
received by the Beneficiaries (x) as a
14
result of a stock dividend, stock split or other distribution of Common Stock or
(y) on account of Common Stock in a recapitalization or other transaction
involving the Company, in each case upon the respective original issuance
thereof, and at all times subsequent thereto; provided, HOWEVER, that the
foregoing securities shall cease to be "Registrable Shares" to the extent that
(i) a registration statement with respect to the sale of such securities shall
have become effective under the Securities Act and such securities shall have
been disposed of in accordance with such registration statement, (ii) such
securities have been sold under circumstances in which all of the applicable
conditions of Rule 144 (or any similar provisions then in force) have been met,
or (iii) such securities shall have ceased to be outstanding.
"REGISTRATION EXPENSES" means all reasonable expenses incident to the
Company's performance of or compliance with its obligations under this Agreement
to effect the registration and sale of Registrable Shares under a Shelf
Registration Statement or under a registration statement filed with respect to a
Piggyback Registration, including, without limitation, all registration, filing,
securities exchange listing and NASD fees (including all registration, filing,
qualification and other fees and expenses of complying with State securities or
blue sky laws), all word processing, duplicating and printing expenses,
messenger and delivery expenses, road show expenses, the fees and disbursements
of counsel for the Company and of its independent public accountants, including
the expenses of any special audits or "cold comfort" letters required by or
incident to such performance and compliance, premiums and other costs of
policies of insurance against liabilities arising out of the Public Offering of
the Registrable Shares being registered and any fees and disbursements of
underwriters customarily paid by issuers or sellers of securities, but excluding
underwriting discounts and commissions and transfer taxes, if any, in respect of
Registrable Shares, which shall be payable by each holder thereof included in
such registration PRO RATA in proportion to the number of Registrable Shares of
such holder included in such registration.
"REGULATION S" means Regulation S promulgated by the Commission under
the Securities Act, and any successor provision thereto.
"REQUESTING BENEFICIARIES" means, with respect to any Piggyback
Registration, the Beneficiaries requesting to have Registrable Shares included
in such registration in accordance with this Agreement.
"RULE 415" means Rule 415 promulgated by the Commission under the
Securities Act, and any successor provision thereto.
"RULE 144" means Rule 144 promulgated by the Commission under the
Securities Act, and any successor provision thereto.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"SHAREHOLDERS" has the meaning ascribed to it in the preamble.
"SHELF REGISTRATION STATEMENT" means the Initial Shelf Registration and
any Subsequent Shelf Registration.
15
(b) Unless the context of this Agreement otherwise requires,
(i) words of any gender include each other gender; (ii) words using the singular
or plural number also include the plural or singular number, respectively; (iii)
the terms "hereof," "herein," "hereby" and derivative or similar words refer to
this entire Agreement; and (iv) the term "Section" refers to the specified
Section of this Agreement. Whenever this Agreement refers to a number of days,
such number shall refer to calendar days unless Business Days are specified.
10. Miscellaneous.
(a) NOTICES. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be deemed
given only when delivered by hand or sent by facsimile (with receipt confirmed)
on a Business Day during regular business hours of the recipient (or, if not, on
the next succeeding Business Day) or one Business Day after sent by reputable
overnight courier service (charges prepaid), as follows:
(i) If to the Company, to:
Xxxxx River Coal Company
000 X. Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: President
(ii) If to a Shareholder, to the address set forth
opposite such Shareholder's name on the signature pages hereto; and
(iii) If to a Beneficiary other than a Shareholder, to
the address set forth on the stock records books of the Company.
Any party hereto may change its address or facsimile number for notices and
other communications hereunder by notice to the other parties hereto. All
notices and other communications given to any party hereto in accordance with
the provisions of this Agreement shall be effective upon receipt.
(b) ENTIRE AGREEMENT. This Agreement is intended by the
parties hereto as a final and complete expression of their agreement and
understanding with respect to the subject matter contained herein and supersedes
all prior agreements, negotiations and understandings, written or oral, among
the parties with respect to the subject matter hereof and thereof.
(c) AMENDMENT. This Agreement may be amended, supplemented
or modified only by a written instrument (which may be executed in any number of
counterparts) duly executed by or on behalf of the Company and Beneficiaries
owning at least a majority of the Registrable Shares then outstanding; PROVIDED,
that any such amendment that adversely affects the rights and obligations of a
specific Beneficiary, or group of Beneficiaries, and does not affect all
Beneficiaries, shall require the written consent of such Beneficiary or
Beneficiaries.
16
(d) WAIVER. Subject to PARAGRAPH (E) of this Section, any
term or condition of this Agreement may be waived at any time by the party that
is entitled to the benefit thereof, but no such waiver shall be effective unless
set forth in a written instrument duly executed by or on behalf of the party
waiving such term or condition. No waiver by any party of any term or condition
of this Agreement, in any one or more instances, shall be deemed to be or
construed as a waiver of the same term or condition of this Agreement on any
future occasion. Any delays or omissions to exercise any right, power or remedy
accruing to a Beneficiary upon any breach by the Company shall not impair any
such right, power or remedy, nor shall it be construed to be a waiver of any
such breach.
(e) CONSENTS AND WAIVERS BY BENEFICIARIES. Any consent of
the Beneficiaries pursuant to this Agreement, and any waiver by such
Beneficiaries of any provision of this Agreement, must be in writing (which may
be executed in any number of counterparts) and may be given or taken by
Beneficiaries owning at least a majority of the Registrable Shares then
outstanding, and any such consent or waiver so given or taken will be binding on
all the holders of Registrable Shares; PROVIDED, that any such consent or waiver
that adversely affects the rights and obligations of a specific Beneficiary, or
group of Beneficiaries, and does not affect all Beneficiaries, shall require the
written consent of such Beneficiary or Beneficiaries.
(f) NO THIRD PARTY BENEFICIARIES. Nothing in this Agreement
shall convey any rights upon any person or entity which is not a party to this
Agreement, except as expressly set forth herein.
(g) ASSIGNABILITY. The registration rights set forth in this
Agreement are assignable to each transferee of Registrable Shares to whom such
Registrable Shares are transferred who agrees in writing to be bound by the
terms and conditions of this Agreement applicable to such transferor; PROVIDED
that such transferee may reasonably be deemed an "underwriter" with respect to
the Common Stock (as defined in section 1145(b)(i) of the Bankruptcy Code)
(including, without limitation, any person who is an "issuer" with respect to
such securities (as defined in Section 2(11) of the Securities Act)). For
purposes of this Section 10(g), any transferee who holds five percent (5%) or
more of the outstanding Common Stock of the Company upon transfer of such
Registrable Shares shall be deemed to be an underwriter until such time as such
transferee holds less than five percent (5%) of the outstanding Common Stock.
(h) BINDING NATURE OF AGREEMENT. This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the parties
hereto, their successors in interest and permitted assigns.
(i) DESCRIPTIVE HEADINGS. The descriptive headings of the
several sections and paragraphs of this Agreement are inserted for reference
only and shall not limit or otherwise affect the meaning hereof.
(j) SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be in
17
any way impaired thereby, it being intended that all of the rights and
privileges of the parties hereto shall be enforceable to the fullest extent
permitted by law.
(k) NON-EXCLUSIVITY OF REMEDIES. Except as otherwise
expressly provided for herein, no remedy conferred by any of the specific
provisions of this Agreement is intended to be exclusive of any other remedy,
and each and every remedy shall be cumulative and shall be in addition to every
other remedy given hereunder or now or hereafter existing at law or in equity or
by statute or otherwise. The election of any one or more remedies by any party
hereto shall not constitute a waiver by any such party of the right to pursue
any other available remedies.
(l) EQUITABLE REMEDIES.The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that, in addition to any other rights and
remedies at law or in equity existing in its favor, any party shall be entitled
to specific performance and/or other injunctive relief from any court of law or
equity of competent jurisdiction (without posting any bond or other security) in
order to enforce or prevent violation of the provisions of this Agreement.
(m) COUNTERPARTS FACSIMILE SIGNATURES. This Agreement may be
executed simultaneously in any number of counterparts, each of which shall be
deemed an original, but all such counterparts shall together constitute one and
the same instrument. This Agreement may be executed by facsimile signatures
(n) DELIVERY BY FACSIMILE.This Agreement and any signed
agreement or instrument entered into in connection thereto or contemplated
thereby, and any amendments hereto or thereto, to the extent signed and
delivered by means of a facsimile machine, shall be treated in all manner and
respects as an original agreement or instrument and shall be considered to have
the same binding legal effect as if it were the original signed version thereof
delivered in person. At the request of any party hereto or to any such agreement
or instrument, each other party hereto or thereto shall re-execute original
forms thereof and deliver them to all other parties. No party hereto or to any
such agreement or instrument shall raise the use of a facsimile machine to
deliver a signature or the fact that any signature or agreement or instrument
was transmitted or communicated through the use of a facsimile machine as a
defense to the formation of a contract and each such party forever waives any
such defense
(o) ADJUSTMENTS AFFECTING REGISTRABLE SHARES. The Company
will not take any action, or permit any change to occur, with respect to its
securities which would materially and adversely affect the ability of the
holders of Registrable Shares to include such Registrable Shares in a
registration undertaken pursuant to this Agreement or to effect the transfer of
such Registrable Shares pursuant to such registration.
(p) SUCCESSORS AND ASSIGNS.This Agreement shall be binding
upon and inure to the benefit of and be enforceable by the parties hereto and
their respective successors and assigns. In addition, and whether or not any
express assignment shall have been made, the provisions of this Agreement which
are for the benefit of the holders of Registrable Shares (or any portion
thereof) as such shall be for the benefit of and enforceable by any subsequent
holder of any Registrable Shares (or of such portion thereof), subject to the
provisions respecting the
18
minimum numbers or percentages of shares of Registrable Shares (or of such
portion thereof) required in order to be entitled to certain rights, or take
certain actions, contained herein..
(q) GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY,
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS
OF LAW THEREOF OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW.
(r) EXPENSES. Each party shall bear its own expenses
incurred in connection with the negotiation, execution and closing of this
Agreement.
(s) TERMINATION. This Agreement shall terminate on the date
on which there cease to be any Registrable Shares outstanding; PROVIDED,
HOWEVER, that the provisions of SECTION 6 and SECTION 10 shall survive any
termination of this Agreement.
(t) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING,
CLAIM OR COUNTERCLAIM, WHETHER IN CONTRACT OR TORT, AT LAW OR IN EQUITY, ARISING
OUT OF OR IN ANY WAY RELATED TO, THIS AGREEMENT.
19
IN WITNESS WHEREOF, the parties hereto have caused this Registration
Rights Agreement to be duly executed by their respective authorized officers as
of the day and year first above written.
XXXXX RIVER COAL COMPANY
By: /s/ Xxxxx X. Xxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxx
Title: President and Chief Executive Officer
XXXX XXXXX STRATEGIC INVESTMENTS, L.P. ADDRESS:
000 Xxxxx Xxxxxx, 00xx Floor
By: Xxxx Xxxxx Management Company, L.P. as General Partner Xxx Xxxx, XX 00000
By: /s/ Xxxxx X. Xxxxxx Attn: Xxxxx Xxxxxx
--------------------------------------------- Facsimile: 000-000-0000
Name: Xxxxx X. Xxxxxx
Title: General Partner
XXXX XXXXX STRATEGIC INVESTMENTS III, L.P. ADDRESS:
000 Xxxxx Xxxxxx, 00xx Floor
By: Xxxx Xxxxx Management Company, L.P. as General Partner Xxx Xxxx, XX 00000
By: /S/ XXXXX X. XXXXXX Attn: Xxxxx Xxxxxx
--------------------------------------------- Facsimile: 000-000-0000
Name: Xxxxx X. Xxxxxx
Title: General Partner
XXXXXXX XXXXX PCG, INC. ADDRESS:
4 World Financial Center, 18th FL
Xxx Xxxx, XX 00000
By: Attention: Xxxxxxxx First
--------------------------------------------- Facsimile: 000-000-0000
Name:
Title:
XXXXXX XXXXXXX SENIOR FUNDING, INC. ADDRESS:
0000 Xxxxxxxx 00xx Xxxxx
Xxx Xxxx, XX 00000
By: /s/ Xxxxx X. Xxxxxxxxx Attn: Xxxx Dell'Aquila
--------------------------------------------- Facsimile: 000-000-0000
Name: Xxxxx X. Xxxxxxxxx
Title: Authorized Signatory
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA ADDRESS:
1114 Avenue of the Americas
30th Floor
By: /s/ Xxxx X. Xxxxx Xxx Xxxx, XX 00000
--------------------------------------------- Attn: Xxxxxx Xxxxxxxx, Esq.
Name: Xxxx X. Xxxxx Facsimile: 000-000-0000
Title: Vice President
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
