EXECUTION COPY
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REGISTRATION RIGHTS AGREEMENT
Concerning
FOUNDATION COAL HOLDINGS, INC.
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Dated as of August 17, 2004
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TABLE OF CONTENTS
Section Page
Section 1. Definitions........................................................1
Section 2. Registration Under the Securities Act..............................5
(a) Required Registration.......................................5
(b) Incidental Registration.....................................8
(c) Expenses....................................................9
(d) Effective Registration Statement; Suspension...............10
(e) Selection of Underwriters..................................10
Section 3. Restrictions on Public Sale.......................................10
Section 4. Registration Procedures...........................................11
Section 5. Indemnification; Contribution.....................................16
(a) Indemnification by the Company.............................16
(b) Indemnification by Holders.................................17
(c) Conduct of Indemnification Proceedings.....................17
(d) Contribution...............................................18
Section 6. Miscellaneous.....................................................19
(a) No Inconsistent Agreements.................................19
(b) Amendments and Waivers.....................................19
(c) Investor Action............................................19
(d) Notices....................................................20
(e) Successors and Assigns.....................................21
(f) Recapitalizations, Exchanges, etc., Affecting
Registrable Securities...............................21
(g) Counterparts...............................................22
(h) Descriptive Headings, Etc..................................22
(i) Severability...............................................22
(j) Governing Law..............................................22
(k) Specific Performance.......................................22
(l) Arbitration................................................23
(m) Entire Agreement...........................................23
(i)
REGISTRATION RIGHTS AGREEMENT (the "Agreement") dated as of August
17, 2004, by and between Foundation Coal Holdings, Inc., a Delaware
corporation (the "Company"), the Sponsor Stockholders (as hereinafter
defined), the Investor Stockholders (as hereinafter defined) and the
Management Stockholders (as hereinafter defined) and any other Person that
shall from and after the date hereof acquire or otherwise be the transferee of
any Registrable Securities and who shall be a Permitted Transferee (as
hereinafter defined) of any Stockholder (herein referred to collectively as
the "Holders" and individually as a "Holder").
WHEREAS, Foundation Coal Holdings, LLC (the "LLC") and the
Stockholders are parties to the amended and restated limited liability company
operating agreement describing the rights and privileges of the interests in
the LLC (the "LLC Agreement").
WHEREAS, the LLC and the Company, a wholly-owned subsidiary of the
LLC, are parties to an Agreement and Plan of Merger dated as of August 16,
2004, pursuant to which the LLC will merge with and into the Company, with the
Company as the sole surviving corporation (the "Merger").
WHEREAS, as a result of the Merger each interest in the LLC held by
the Stockholders shall be exchanged for shares of Common Stock (as hereinafter
defined), resulting in the Stockholders becoming holders of shares in the
Company.
WHEREAS, the Stockholders and the Company are parties to a
Stockholders Agreement dated as of August 17, 2004 which sets forth certain
rights and obligations of the Stockholders relating to the ownership by the
Stockholders of the Common Stock (the "Stockholders Agreement").
WHEREAS, the Company has agreed to provide registration rights on
the terms and subject to the conditions provided herein.
NOW, THEREFORE, in consideration of the premises and the
representations, warranties and agreements contained herein, and for other
good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, and intending to be legally bound hereby, the parties
hereto agree as follows:
Section 1. Definitions.
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As used in this Agreement, the following terms shall have the
following meanings:
"Affiliate" has the meaning set forth in the Stockholders Agreement.
"AMCI Investor Group" has the meaning set forth in the Stockholders
Agreement.
"Blackstone Investor Group" has the meaning set forth in the
Stockholders Agreement.
"Board" has the meaning set forth in the Stockholders Agreement.
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"Common Stock" means the common stock, par value $.01 per share, of
the Company and securities issued in respect thereof, or in substitution
therefor, in connection with any split, dividend, spin-off or combination, or
any reclassification, recapitalization, merger, consolidation, exchange or
other similar reorganization or business combination.
"Company" has the meaning set forth in the preamble and also
includes the Company's successors.
"Dispute" has the meaning set forth in Section 6(l).
"Effective Date" has the meaning set forth in the Stockholders
Agreement.
"Exchange Act" has the meaning set forth in the Stockholders
Agreement.
"Fair Market Value" has the meaning set forth in Stockholders
Agreement.
"FRC Investor Group" has the meaning set forth in the Stockholders
Agreement.
"Holder" has the meaning set forth in the preamble.
"Incidental Registration" means a registration required to be
effected by the Company pursuant to Section 2(b).
"Incidental Registration Statement" means a registration statement
of the Company, as provided in Section 2(b), which covers any of the
Registrable Securities on an appropriate form in accordance with the
Securities Act and all amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"Investor Group" has the meaning set forth in the Stockholders
Agreement.
"Investor Stockholder" has the meaning set forth in the Stockholders
Agreement.
"Initial Public Offering" means the closing of the first public
offering of and sale of equity securities of the Company or, if earlier, the
first public offering and sale of equity securities of the Company by any
other Person in a secondary offering pursuant to an effective registration
statement filed by the Company under the Securities Act.
"IRR", with respect to any Person, means the discount rate at which
the net present value of distributions from the Company in connection with,
and proceeds in respect of a sale or redemption of, Securities held by such
Person, less the aggregate purchase price for such Securities (or purchase
price for ownership interests in any predecessor to the Company), equals zero.
Each such discount rate calculation shall be determined as of the date such
purchase price was paid and with respect to each distribution or receipt of
proceeds from the date such distribution or proceeds are received.
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"Majority Holders" means Holders of Common Stock representing in the
aggregate a majority of the aggregate number of outstanding Common Stock
beneficially owned by Holders.
"Management Stockholder" has the meaning set forth in the
Stockholders Agreement.
"NASD" means the National Association of Securities Dealers, Inc.
"Permitted Transferee" has the meaning set forth in the Stockholders
Agreement.
"Person" has the meaning set forth in the Stockholders Agreement.
"Prospectus" means the prospectus included in a Registration
Statement, including any preliminary Prospectus, and any such Prospectus as
amended or supplemented by any prospectus supplement with respect to the terms
of the offering of any portion of the Registrable Securities and by all other
amendments and supplements to such Prospectus, including post-effective
amendments, and in each case including all material incorporated by reference
therein.
"Qualified IPO" has the meaning set forth in the Stockholders
Agreement.
"Reclassified Securities" has the meaning set forth in the
Stockholders Agreement.
"Registrable Securities" means (i) any shares of Common Stock issued
to the Stockholders in connection with the Merger, (ii) any Securities of the
Company subsequently acquired by the Stockholders or any of their Affiliates
including upon exercise of any Securities referred to in clause (iii), (iii)
any Securities of the Company held by any Holder which is convertible,
exchangeable or exercisable into Common Stock and (iv) any Securities of the
Company issued or issuable directly or indirectly with respect to or in
exchange, or substitution for, or conversion of the securities referred to in
clauses (i), (ii) or (iii) above by way of dividend or distribution,
recapitalization, merger, consolidation, exchange or other reorganization. As
to any particular Registrable Securities, such securities shall cease to be
Registrable Securities when they have been distributed to the public pursuant
to an offering registered under the Securities Act or sold to the public
through a broker, dealer or market maker in compliance with Rule 144 under the
Securities Act (or any similar rule then in force).
"Registration Expenses" means (i) all registration, listing,
qualification and filing fees (including NASD filing fees), (ii) fees and
disbursements of counsel for the Company, (iii) accounting fees incident to
any such registration, (iv) blue sky fees and expenses (including counsel fees
in connection with the preparation of a Blue Sky Memorandum and legal
investment survey), (v) all reasonable expenses of any Persons incurred on
behalf of the Investor Stockholders or the Company in preparing or assisting
in preparing, printing, distributing, mailing and delivering any Registration
Statement, any Prospectus, any underwriting agreements, transmittal letters,
securities sales agreements, securities certificates and other documents
relating to the performance of and compliance with this Agreement, (vi) the
expenses incurred in connection with making road show presentations and
holding meetings with potential
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investors to facilitate the distribution and sale of Registrable Securities
which are customarily borne by the issuer, (vii) all internal expenses of the
Company (including all salaries and expenses of officers and employees
performing legal or accounting duties) and (viii) the reasonable fees and
expenses of the Investor Stockholders incurred in connection with the sale of
Registrable Securities (including reasonable fees and expenses of counsel for
the Sponsor Stockholders); provided, however, Registration Expenses shall not
include any Selling Expenses.
"Registration Statement" means any registration statement of the
Company which covers any Registrable Securities and all amendments and
supplements to any such Registration Statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"Required Registration" means a registration required to be effected
pursuant to Section 2(a)(i).
"Required Registration Statement" means a Registration Statement
which covers the Registrable Securities requested to be included therein
pursuant to the provisions of Section 2(a)(i) on an appropriate form pursuant
to the Securities Act (other than pursuant to Rule 415 or any similar rule
then in force), and which form shall be available for the sale of the
Registrable Securities in accordance with the intended method or methods of
distribution thereof, and all amendments and supplements to such Registration
Statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"Required Shelf Registration Statement" means a Registration
Statement which covers the Registrable Securities requested to be included
therein pursuant to the provisions of Section 2(a)(i) on an appropriate form
or any similar successor or replacement form (in accordance with Section 4(a)
hereof) pursuant to Rule 415 of the Securities Act (or any similar rule then
in force), and which form shall be available for the sale of the Registrable
Securities in accordance with the intended method or methods of distribution
thereof, and all amendments and supplements to such Registration Statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
"SEC" means the United States Securities and Exchange Commission.
"Securities" has the meaning set forth in the Stockholders
Agreement.
"Securities Act" has the meaning set forth in the Stockholders
Agreement.
"Selling Expenses" means underwriting discounts, selling commissions
and stock transfer taxes applicable to the shares registered by the Holders,
fees and disbursements of counsel for the Holders (other than the Investor
Stockholders) retained by them (other than with respect to the fees and
disbursements made in connection with the preparation of a Blue Sky Memorandum
and legal investment survey).
"Sponsor Stockholder" has the meaning set forth in the Stockholders
Agreement.
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"Underwriter" has the meaning set forth in Section 5(a).
"Underwritten Offering" means a sale of securities of the Company to
an Underwriter or Underwriters for reoffering to the public.
Section 2. Registration Under the Securities Act.
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(a) Required Registration.
(i) Right to Require Registration. (A) At any time from and
after the second anniversary of the Effective Date, any Sponsor
Stockholder shall have the right to deliver a request in writing to
the Company (a "Request") (which Request shall specify the
Registrable Securities intended to be disposed, the identity of the
Sponsor Stockholder intending to dispose of such Registrable
Securities, and the intended method of distribution thereof) that
the Company register the Registrable Securities held by the
specified Sponsor Stockholder by filing with the SEC a Required
Registration Statement (a "Demand Registration") or, after the
Initial Public Offering of the Company, a Required Shelf
Registration Statement (a "Shelf Registration"); provided, however,
that if such Request is made with respect to the Initial Public
Offering of the Company and prior to the fourth anniversary of the
date of this Agreement, no Sponsor Stockholder shall be permitted to
exercise its rights under this Section 2(a)(i)(A) unless the
transaction contemplated by the Request would, in the reasonable
opinion the Sponsor Stockholder delivering such Request, result in
an IRR to such Sponsor Stockholder in respect of its Registrable
Securities subject to such Request of at least 25%. At any time from
and after the consummation of a Qualified IPO, any Investor
Stockholder shall have the right to deliver a Request to the Company
(which Request shall specify the Registrable Securities intended to
be disposed, the identity of the Investor Stockholder intending to
dispose of such Registrable Securities, and the intended method of
distribution thereof) for a Demand Registration or, in the case of
an Investor Stockholder that is also a Sponsor Stockholder, a Shelf
Registration.
(B) Upon the receipt of any Request, the Company will, by
the tenth calendar day thereafter, give written notice of such
requested registration to all Holders of Registrable Securities, and
each such Holder shall be entitled to notify the Company within ten
days of receipt of notice of such Request of such Holder's election
to include all or a portion of its Registrable Securities in such
registration. Not later than the 60th calendar day after the receipt
of such a Request by the Company, the Company will, subject to the
other provisions of this Section 2(a), cause to be filed with the
SEC a Required Registration Statement or Required Shelf Registration
Statement, as the case may be, covering the Registrable Securities
which the Company has been so requested to register in such Request
and all other Registrable Securities which the Company has been
requested to register by Holders thereof other than the Holder(s)
who are members of the Investor Group initiating such Request, by
written request given to the Company within 15 days after the giving
of such written notice by the
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Company, providing for the registration under the Securities Act of
the Registrable Securities which the Company has been so requested
to register by all such Holders, to the extent necessary to permit
the disposition of such Registrable Securities so to be registered
in accordance with the intended methods of distribution thereof
specified in such Request or further requests, and shall use all
reasonable efforts to have such Required Registration Statement or
Required Shelf Registration Statement, as the case may be, declared
effective by the SEC as soon as practicable thereafter and to keep
such Required Registration Statement continuously effective for a
period of at least (xx) 60 days, in the case of a Demand
Registration (or, in the case of an Underwritten Offering, such
period as the Underwriters shall reasonably require) following the
date on which such Required Registration Statement is declared
effective (or such shorter period which will terminate when all of
the Registrable Securities covered by such Required Registration
Statement have been sold pursuant thereto) or (yy) 180 days, in the
case of a Shelf Registration, following the date on which such
Required Shelf Registration Statement is declared effective (or such
shorter period which will terminate when all of the Registrable
Securities covered by such Required Shelf Registration Statement
have been sold pursuant thereto), including, in either case, if
necessary, by filing with the SEC a post-effective amendment or a
supplement to the Required Registration Statement or Required Shelf
Registration Statement or the related Prospectus or any document
incorporated therein by reference or by filing any other required
document or otherwise supplementing or amending the Required
Registration Statement or Required Shelf Registration Statement, if
required by the rules, regulations or instructions applicable to the
registration form used by the Company for such Required Registration
Statement or Required Shelf Registration Statement or by the
Securities Act, the Exchange Act, any state securities or blue sky
laws, or any rules and regulations thereunder.
(C) The Company shall not be required to effect, pursuant
to this Section 2(a)(i), (w) more than one Shelf Registration or
Demand Registration within any continuous six month period, (x) any
Underwritten Offering covering Registrable Securities with gross
proceeds reasonably expected by the Holders to be less than $25
million, (y) more than (i) three (3) Demand Registrations requested
by each of the Blackstone Investor Group and the FRC Investor Group
and (ii) one (1) Demand Registration requested by the AMCI Investor
Group (provided that the members of the AMCI Investor Group shall
have no right to, and shall not, make a Request in respect of such
Demand Registration until such time as an offering in respect of a
(I) Demand Registration on account of a Request made by either the
Blackstone Investor Group or the FRC Investor Group or (II) a
Qualified IPO that is a secondary offering has been consummated) and
(z) more than one (1) Shelf Registration requested by each of the
Blackstone Investor Group and the FRC Investor Group (which Shelf
Registration, for the avoidance of doubt, shall not be deemed to be
a Demand Registration under the immediately preceding clause (y)).
The members of the AMCI Investor Group shall have no right to, and
shall not, make a Request in respect of a Shelf Registration at any
time.
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(D) A Request may be withdrawn prior to the filing of the
Required Registration Statement or Required Shelf Registration
Statement by the Investor Group which made such Request (a
"Withdrawn Request") and a Required Registration Statement or
Required Shelf Registration Statement may be withdrawn prior to the
effectiveness thereof by the Holders of a majority of the
Registrable Securities included therein (a "Withdrawn Required
Registration"), and, in either such event, such withdrawal shall not
be treated as a Required Registration for purposes of clauses (y)
and (z) of the immediately preceding paragraph.
(E) Notwithstanding the foregoing, the Company may delay
the filing of a registration statement required pursuant to this
Section 2(a)(i) if the Board determines that such action is in the
best interests of the Company or its Stockholders and only for a
period not to exceed 90 days (a "Blackout Period"); provided that
after any initial Blackout Period the Company may not invoke a
subsequent Blackout Period until 12 months elapse from the end of
any previous Blackout Period.
(F) The registration rights granted pursuant to the
provisions of this Section 2(a)(i) shall be in addition to the
registration rights granted pursuant to the other provisions of this
Section 2.
(ii) Priority in Required Registrations. If a Required
Registration pursuant to this Section 2(a) involves an Underwritten
Offering, and the sole Underwriter or the lead managing Underwriter, as
the case may be, of such Underwritten Offering shall advise the Company
in writing (with a copy to each Holder requesting registration) on or
before the date five days prior to the date of pricing of such offering
that, in its opinion, the amount of Registrable Securities requested to
be included in such Required Registration exceeds the amount which can be
sold in such offering without adversely affecting the distribution of the
Registrable Securities being offered, the Company will include in such
Required Registration only the amount of Registrable Securities that the
Company is so advised can be sold in such offering; provided, however,
that the Company shall be required to include in such Required
Registration first, all Registrable Securities requested to be included
in the Required Registration by the Investor Stockholders and, to the
extent not all such Registrable Securities can be included in such
Required Registration, the number of Registrable Securities to be
included shall be allocated pro rata on the basis of the number of
Registrable Securities requested to be included in such Required
Registration by all Investor Stockholders requesting to participate in
such Required Registration or on such other basis as shall be agreed
among such Investor Stockholders; second, all Registrable Securities
requested to be included in such Required Registration by the other
Holders and, to the extent not all such Registrable Securities can be
included in such Required Registration, the number of Registrable
Securities to be included shall be allocated pro rata on the basis of the
number of Registrable Securities requested to be included in such
Required Registration by all such Holders and third, all other securities
requesting, in accordance with any registration rights which are granted
in compliance with Section 6(a), to be included in such Required
Registration which are of the same class as the Registrable Securities
and,
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to the extent not all such securities can be included in such Required
Registration, the number of securities to be included shall be allocated
pro rata among the remaining holders thereof requesting inclusion in such
Required Registration on the basis of the number of securities requested
to be included by all such holders.
(b) Incidental Registration.
(i) Right to Include Registrable Securities. If at any time
from and after consummation of a Qualified IPO, the Company proposes to
register any of its Common Stock under the Securities Act (other than (A)
any registration of public sales or distributions solely by and for the
account of the Company of securities issued (x) pursuant to any employee
benefit or similar plan or any dividend reinvestment plan or (y) in any
acquisition by the Company, (B) pursuant to any debt financing of the
acquisition of the Acquired Businesses or (C) pursuant to Section 2(a)
hereof) in connection with a primary offering for cash for the account of
the Company, the Company will, each time it intends to effect such a
registration, give written notice to all Holders of Registrable
Securities at least ten but no more than 45 days prior to the expected
initial filing of a Registration Statement with the SEC pertaining
thereto, informing such Holders of its intent to file such Registration
Statement, the expected filing date, and of the Holders' rights to
request the registration of the Registrable Securities held by the
Holders under this Section 2(b) (the "Company Notice"). Upon the written
request of any Holder made within ten days after any such Company Notice
is given (which request shall specify the Registrable Securities intended
to be disposed of by such Holder and such Holder's Permitted Transferees
and the intended method of distribution thereof), the Company will use
all reasonable efforts to effect the registration under the Securities
Act of all Registrable Securities which the Company has been so requested
to register by such Holders to the extent required to permit the
disposition (in accordance with the intended methods of distribution
thereof) of the Registrable Securities so requested to be registered,
including, if necessary, by filing with the SEC a post-effective
amendment or a supplement to the Incidental Registration Statement or the
related Prospectus or any document incorporated therein by reference or
by filing any other required document or otherwise supplementing or
amending the Incidental Registration Statement, if required by the rules,
regulations or instructions applicable to the registration form used by
the Company for such Incidental Registration Statement or by the
Securities Act, any state securities or blue sky laws, or any rules and
regulations thereunder; provided, however, that if, at any time after
giving written notice of its intention to register any securities and
prior to the effective date of the Incidental Registration Statement
filed in connection with 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 written notice of such
determination to each Holder of Registrable Securities and, thereupon,
(A) in the case of a determination not to register, the Company shall be
relieved of its obligation to register any Registrable Securities in
connection with such registration (but not from its obligation to pay the
Registration Expenses incurred in connection therewith), and (B) in the
case of a determination to delay such registration, the Company shall be
permitted to delay registration of any Registrable Securities requested
to be included in such Incidental Registration Statement for the same
period as the delay in registering such other securities.
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The registration rights granted pursuant to the provisions of this
Section 2(b)(i) shall be in addition to the registration rights granted
pursuant to the other provisions of this Section.
(ii) Priority in Incidental Registrations. If a registration
pursuant to this Section 2(b) involves an Underwritten Offering of the
securities so being registered, whether or not for sale for the account
of the Company, and the sole Underwriter or the lead managing
Underwriter, as the case may be, of such Underwritten Offering shall
advise the Company in writing (with a copy to each Holder of Registrable
Securities requesting registration) on or before the date five days prior
to the date of pricing of for such offering that, in its opinion, the
amount of securities (including Registrable Securities) requested to be
included in such registration exceeds the amount which can be sold in (or
during the time of) such offering without adversely affecting the
distribution of the securities being offered, then the Company will be
required to include in such registration, first, all the securities
entitled to be sold pursuant to such Registration Statement by the
Company; second all Registrable Securities requested to be included in
the Underwritten Offering by the Investor Stockholders and, to the extent
not all such Registrable Securities can be included in such Underwritten
Offering, the number of Registrable Securities to be included shall be
allocated pro rata on the basis of the number of Registrable Securities
requested to be included by all the Investor Stockholders requesting to
participate in the Underwritten Offering or on such other basis as shall
be agreed among such Investor Stockholders; third, all Registrable
Securities requested to be included in such Underwritten Offering by the
other Holders and, to the extent not all such Registrable Securities can
be included in such Underwritten Offering, the number of Registrable
Securities to be included shall be allocated pro rata on the basis of the
number of Registrable Securities requested to be included in such
Underwritten Offering by all such Holders and fourth, all other
securities requested, in accordance with any registration rights which
are granted in compliance with Section 6(a), to be included in such
Underwritten Offering which are of the same class as the Registrable
Securities and, to the extent not all such securities can be included in
such Underwritten Offering, the number of securities to be included shall
be allocated pro rata among the remaining holders thereof requesting
inclusion in such Underwritten Offering on the basis of the number of
securities requested to be included in such Underwritten Offering by all
such holders; provided, however, that in the event the Company will not,
by virtue of this paragraph, include in any such registration all of the
Registrable Securities of any Holder requested to be included in such
registration, such Holder may, upon written notice to the Company given
within three days of the time such Holder first is notified of such
matter, reduce the amount of Registrable Securities it desires to have
included in such registration, whereupon only the Registrable Securities,
if any, it desires to have included will be so included and the Holders
not so reducing shall be entitled to a corresponding increase in the
amount of Registrable Securities to be included in such registration.
(c) Expenses. The Company agrees to (i) pay all Registration
Expenses in connection with each of the registrations requested pursuant to
Section 2(a) and (ii) pay all Registration Expenses in connection with each
registration as to which Holders request inclusion of Registrable Securities
pursuant to Section 2(b). All Selling Expenses relating to securities
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registered on behalf of Holders shall be borne by the Holders of securities
included in such registration pro rata on the basis of the number of shares of
securities so registered.
(d) Effective Registration Statement; Suspension. Subject to Section
2(a)(i)(D), a Registration Statement pursuant to Section 2(a) will not be
deemed to have become effective (and the related registration will not be
deemed to have been effected) unless it has been declared effective by the SEC
or in the case of a Required Shelf Registration Statement unless Registrable
Securities have been disposed of pursuant thereto, prior to a request by the
Holders of a majority of the Registrable Securities included in such
registration that such Registration Statement be withdrawn; provided, however,
that if, after it has been declared effective, the offering of any Registrable
Securities pursuant to such Registration Statement is interfered with by any
stop order, injunction or other order or requirement of the SEC or any other
governmental agency or court, such Registration Statement will be deemed not
to have become effective and the related registration will not be deemed to
have been effected.
(e) Selection of Underwriters. At any time or from time to time, the
Holders of a majority of the Registrable Securities covered by a Required
Registration Statement may elect to have such Registrable Securities sold in
an Underwritten Offering and may select the investment banker or investment
bankers and manager or managers that will serve as lead and co-managing
Underwriters with respect to the offering of such Registrable Securities,
subject to the consent of the Company which shall not be unreasonably
withheld. No Holder may participate in any Underwritten Offering hereunder
unless such Holder (a) agrees to sell such Holder's securities on the basis
provided in any underwriting arrangements approved by the Persons entitled
hereunder to approve such arrangements and (b) completes and executes all
questionnaires, powers of attorney, custody agreements, indemnities,
underwriting agreements and other documents required under the terms of such
Underwritten Offering.
Section 3. Restrictions on Public Sale.
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(a) If requested by the sole Underwriter or lead managing
Underwriter(s) in an Underwritten Offering, the Company agrees not to effect
any public sale or distribution (other than, in the case of the Company,
public sales or distributions solely by and for the account of the Company of
securities issued pursuant to any employee benefit or similar plan or any
dividend reinvestment plan) of any equity or equity-linked securities during
the period commencing on the date the Company receives a Request from any
Holder and continuing until 180 days after the commencement of any Initial
Public Offering, Qualified IPO or other Underwritten Offering (or for such
shorter period as the sole or lead managing Underwriter shall request) unless
earlier terminated by the sole Underwriter or lead managing Underwriter(s) in
such Underwritten Offering.
(b) If requested by the sole Underwriter or lead managing
Underwriter(s) in an Underwritten Offering, the Holders shall not sell or
otherwise transfer or dispose of any shares of Common Stock (or other
securities) of the Company held by the Holders (other than those included in
the registration) during the fourteen (14) day period prior to and the one
hundred eighty (180) day period following the effective date (including such
effective date), of an Initial Public Offering, Qualified IPO (including such
effective date) or any other offering, or in the case of a registration
pursuant to Rule 415 of the Securities Act (or any similar rule then in
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force), the 180 day period following the date of any underwritten take-down,
or in either case such shorter period as the sole Underwriter or lead managing
Underwriter(s) may request, of a registration statement of the Company filed
under the Securities Act, provided that the obligations described in this
Section 3(b) shall not apply to a registration relating solely to the sale of
securities to employees of the Company pursuant to a stock option, stock
purchase or similar plan or Rule 145 (or any similar rule then in force) or
similar transaction. The Company may impose stop-transfer instructions with
respect to the Common Stock (or other securities) subject to the foregoing
restriction until the end of said one hundred eighty (180) day period. Any
agreement entered into after the date of this Agreement pursuant to which the
Company issues or agrees to issue any privately placed Common Stock or other
securities shall contain a provision under which holders of such securities
agree not to effect any sale or distribution of any such securities during the
period referred to in the first sentence of this Section 3(b), including any
sale pursuant to Rule 144 under the Securities Act (or any similar rule then
in force) (except as part of such registration, if permitted).
Section 4. Registration Procedures.
-----------------------
In connection with the obligations of the Company pursuant to
Section 2, the Company shall use all reasonable efforts to effect or cause to
be effected the registration of the Registrable Securities under the
Securities Act to permit the sale of such Registrable Securities by the
Holders in accordance with their intended method or methods of distribution,
and the Company shall:
(a) (i) prepare and file a Registration Statement with the SEC which
(x) shall be on Form S-1 (if in connection with an Initial Public Offering)
and otherwise on Form S-3 (or any successor to such form), if available, (y)
shall be available for the sale or exchange of the Registrable Securities in
accordance with the intended method or methods of distribution by the selling
Holders thereof, and (z) shall comply as to form with the requirements of the
applicable form and include all financial statements required by the SEC to be
filed therewith and all other information reasonably requested by the lead
managing Underwriter or sole Underwriter, if applicable, to be included
therein, (ii) use all reasonable efforts to cause such Registration Statement
to become effective and remain effective in accordance with Section 2, (iii)
use all reasonable efforts to not take any action that would cause a
Registration Statement to contain a material misstatement or omission or to be
not effective and usable for resale of Registrable Securities during the
period that such Registration Statement is required to be effective and
usable, and (iv) cause each Registration Statement and the related Prospectus
and any amendment or supplement thereto, as of the effective date of such
Registration Statement, amendment or supplement (x) to comply in all material
respects with any requirements of the Securities Act and the rules and
regulations of the SEC and (y) not to contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading;
(b) subject to paragraph (j) of this Section 4, prepare and file
with the SEC such amendments and post-effective amendments to each such
Registration Statement, as may be necessary to keep such Registration
Statement effective for the applicable period; cause each such Prospectus to
be supplemented by any required prospectus supplement, and as so supplemented
to be filed pursuant to Rule 424 under the Securities Act (or any similar rule
then
11
in force); and comply with the provisions of the Securities Act with respect
to the disposition of all securities covered by each Registration Statement
during the applicable period in accordance with the intended method or methods
of distribution by the selling Holders thereof, as set forth in such
registration statement;
(c) furnish to each Holder of Registrable Securities and to each
Underwriter of an Underwritten Offering of Registrable Securities, if any,
without charge, as many copies of each Prospectus, including each preliminary
Prospectus, and any amendment or supplement thereto and such other documents
as such Holder or Underwriter may reasonably request in order to facilitate
the public sale or other disposition of the Registrable Securities; the
Company hereby consents to the use of the Prospectus, including each
preliminary Prospectus, by each Holder of Registrable Securities and each
Underwriter of an Underwritten Offering of Registrable Securities, if any, in
connection with the offering and sale of the Registrable Securities covered by
the Prospectus or the preliminary Prospectus;
(d) (i) use all reasonable efforts to register or qualify the
Registrable Securities, no later than the time the applicable Registration
Statement is declared effective by the SEC, under all applicable state
securities or "blue sky" laws of such jurisdictions as each Underwriter, if
any, or any Holder of Registrable Securities covered by a Registration
Statement, shall reasonably request; (ii) use all reasonable efforts to keep
each such registration or qualification effective during the period such
Registration Statement is required to be kept effective; and (iii) do any and
all other acts and things which may be reasonably necessary or advisable to
enable each such Underwriter, if any, and Holder to consummate the disposition
in each such jurisdiction of such Registrable Securities owned by such Holder;
provided, however, that the Company shall not be obligated to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction in which
it is not so qualified or to consent to be subject to general service of
process (other than service of process in connection with such registration or
qualification or any sale of Registrable Securities in connection therewith)
in any such jurisdiction;
(e) notify each Holder of Registrable Securities promptly, and, if
requested by such Holder, confirm such advice in writing, (i) when a
Registration Statement has become effective and when any post-effective
amendments and supplements thereto become effective, (ii) of the issuance by
the SEC or any state securities authority of any stop order, injunction or
other order or requirement suspending the effectiveness of a Registration
Statement or the initiation of any proceedings for that purpose, (iii) if,
between the effective date of a Registration Statement and the closing of any
sale of securities covered thereby pursuant to any agreement to which the
Company is a party, the representations and warranties of the Company
contained in such agreement cease to be true and correct in all material
respects or if the Company receives any notification with respect to the
suspension of the qualification of the Registrable Securities for sale in any
jurisdiction or the initiation of any proceeding for such purpose, and (iv) of
the happening of any event during the period a Registration Statement is
effective as a result of which such Registration Statement or the related
Prospectus contains any untrue statement of a material fact or omits to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading;
12
(f) furnish counsel for each such Underwriter, if any, and for the
Holders of Registrable Securities copies of any request by the SEC or any
state securities authority for amendments or supplements to a Registration
Statement and Prospectus or for additional information;
(g) use all reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement at the earliest
possible time;
(h) upon request, furnish to the sole Underwriter or lead managing
Underwriter of an Underwritten Offering of Registrable Securities, if any,
without charge, at least one signed copy of each Registration Statement and
any post-effective amendment thereto, including financial statements and
schedules, all documents incorporated therein by reference and all exhibits;
and furnish to each Holder of Registrable Securities, without charge, at least
one conformed copy of each Registration Statement and any post-effective
amendment thereto (without documents incorporated therein by reference or
exhibits thereto, unless requested);
(i) cooperate with the selling Holders of Registrable Securities and
the sole Underwriter or lead managing Underwriter of an Underwritten Offering
of Registrable Securities, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and
not bearing any restrictive legends; and enable such Registrable Securities to
be in such denominations (consistent with the provisions of the governing
documents thereof) and registered in such names as the selling Holders or the
sole Underwriter or lead managing Underwriter of an Underwritten Offering of
Registrable Securities, if any, may reasonably request at least five days
prior to any sale of Registrable Securities;
(j) upon the occurrence of any event contemplated by paragraph
(e)(iv) of this Section, use all reasonable efforts to prepare a supplement or
post-effective amendment to a Registration Statement or the related
Prospectus, or any document incorporated therein by reference, or file any
other required document so that, as thereafter delivered to the purchasers of
the Registrable Securities, such Prospectus will not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
(k) enter into customary agreements (including, in the case of an
Underwritten Offering, underwriting agreements in customary form, and
including provisions with respect to indemnification and contribution in
customary form and consistent with the provisions relating to indemnification
and contribution contained herein) and take all other customary and
appropriate actions in order to expedite or facilitate the disposition of such
Registrable Securities and in connection therewith:
(1) make such representations and warranties to the Holders of
such Registrable Securities and the Underwriters, if any, in form,
substance and scope as are customarily made by issuers to
underwriters in similar underwritten offerings;
13
(2) obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the lead managing Underwriter,
if any, and the Majority Holders of the Registrable Securities being
sold) addressed to each selling Holder and the Underwriters, if any,
covering the matters customarily covered in opinions requested in
sales of securities or underwritten offerings and such other matters
as may be reasonably requested by such Holders and Underwriters;
(3) obtain "cold comfort" letters and updates thereof from the
Company's independent certified public accountants addressed to the
selling Holders of Registrable Securities, if permissible, and the
Underwriters, if any, which letters shall be customary in form and
shall cover matters of the type customarily covered in "cold
comfort" letters to underwriters in connection with primary
underwritten offerings;
(4) to the extent requested and customary for the relevant
transaction, enter into a securities sales agreement with the
Holders providing for, among other things, the appointment of such
representative as agent for the selling Holders for the purpose of
soliciting purchases of Registrable Securities, which agreement
shall be customary in form, substance and scope and shall contain
customary representations, warranties and covenants; and
(5) deliver such customary documents and certificates as may be
reasonably requested by the Majority Holders of the Registrable
Securities being sold or by the managing Underwriters, if any.
The above shall be done (i) at the effectiveness of such Registration
Statement (and each post-effective amendment thereto) in connection with any
registration, and (ii) at each closing under any underwriting or similar
agreement as and to the extent required thereunder;
(l) make available for inspection by representatives of the Holders
of the Registrable Securities and any Underwriters participating in any
disposition pursuant to a Registration Statement and any counsel or accountant
retained by such Holders or Underwriters, all relevant financial and other
records, pertinent corporate documents and properties of the Company and cause
the respective officers, managers and employees of the Company to supply all
information reasonably requested by any such representative, Underwriter,
counsel or accountant in connection with a Registration Statement;
(m) (i) within a reasonable time prior to the filing of any
Registration Statement, any Prospectus, any amendment to a Registration
Statement or amendment or supplement to a Prospectus, provide copies of such
document to the Holders of Registrable Securities and to counsel to such
Holders and to the Underwriter or Underwriters of an Underwritten Offering of
Registrable Securities, if any; fairly consider such reasonable changes in any
such document prior to or after the filing thereof as the counsel to the
Holders or the Underwriter or the Underwriters may request and not file any
such document in a form to which the Majority Holders of Registrable
Securities being registered or any Underwriter shall reasonably object; and
make such of the representatives of the Company as shall be reasonably
14
requested by the Holders of Registrable Securities being registered or any
Underwriter available for discussion of such document;
(ii) within a reasonable time prior to the filing of any
document which is to be incorporated by reference into a Registration
Statement or a Prospectus, provide copies of such document to counsel for
the Holders; fairly consider such reasonable changes in such document
prior to or after the filing thereof as counsel for such Holders or such
Underwriter shall request; and make such of the representatives of the
Company as shall be reasonably requested by such counsel available for
discussion of such document;
(n) cause all Registrable Securities to be qualified for inclusion
in or listed on The New York Stock Exchange or any securities exchange or the
NASDAQ National Market on which securities of the same class issued by the
Company are then so qualified or listed if so requested by the Majority
Holders of Registrable Securities covered by a Registration Statement, or if
so requested by the Underwriter or Underwriters of an Underwritten Offering of
Registrable Securities, if any;
(o) otherwise use all reasonable efforts to comply with all
applicable rules and regulations of the SEC, including making available to its
security holders an earnings statement covering at least 12 months which shall
satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder (or any similar provision then in force);
(p) cooperate and assist in any filings required to be made with the
NASD and in the performance of any due diligence investigation by any
Underwriter in an Underwritten Offering; and
(q) use all reasonable efforts to facilitate the distribution and
sale of any Registrable Securities to be offered pursuant to this Agreement,
including without limitation by making road show presentations, holding
meetings with potential investors and taking such other actions as shall be
requested by the Majority Holders of Registrable Securities covered by a
Registration Statement or the lead managing Underwriter of an Underwritten
Offering; provided that the Company shall not be required to make road show
presentations in connection with any Underwritten Offering of Registrable
Securities that would not reasonably be expected to have gross proceeds of at
least $50 million.
Each selling Holder of Registrable Securities as to which any
registration is being effected pursuant to this Agreement agrees, as a
condition to the registration obligations with respect to such Holder provided
herein, to furnish to the Company such information regarding such Holder
required to be included in the Registration Statement, the ownership of
Registrable Securities by such Holder and the proposed distribution by such
Holder of such Registrable Securities as the Company may from time to time
reasonably request in writing.
Each Holder agrees that, upon receipt of any notice from the Company
of the happening of any event of the kind described in paragraph (e)(iv) of
this Section, such Holder will forthwith discontinue disposition of
Registrable Securities pursuant to the affected Registration Statement until
such Holder's receipt of the copies of the supplemented or amended
15
Prospectus, contemplated by paragraph (j) of this Section, and, if so directed
by the Company, such Holder will deliver to the Company (at the expense of the
Company), all copies in its possession, other than permanent file copies then
in such Holder's possession, of the Prospectus covering such Registrable
Securities which was current at the time of receipt of such notice.
Section 5. Indemnification; Contribution.
-----------------------------
(a) Indemnification by the Company. The Company agrees to indemnify
and hold harmless each Person who participates as an underwriter (any such
Person being an "Underwriter"), each Investor Group, Holder and their
respective partners, managers, officers and employees and each Person, if any,
who controls any Investor Group, Holder or Underwriter within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act as follows:
(i) against any and all losses, liabilities, claims, damages,
judgments and reasonable expenses whatsoever, as incurred, arising out of
any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement pursuant to which Registrable
Securities were registered under the Securities Act, including all
documents incorporated therein by reference, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material fact
contained in any Prospectus, including all documents incorporated therein
by reference, or the omission or alleged omission therefrom of a material
fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
(ii) against any and all losses, liabilities, claims, damages,
judgments and reasonable expenses whatsoever, as incurred, to the extent
of the aggregate amount paid in settlement of any litigation,
investigation or proceeding by any governmental agency or body, commenced
or threatened, or of any other claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the written consent of the
Company; and
(iii) against any and all reasonable expense whatsoever
(including fees and disbursements of counsel), as incurred in
investigating, preparing or defending against any litigation,
investigation or proceeding by any governmental agency or body, commenced
or threatened, in each case whether or not such Person is a party, or any
claim whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under sub-paragraph (i) or (ii) above;
provided, however, that this indemnity agreement does not apply to any
Investor Group, Holder or Underwriter with respect to any loss, liability,
claim, damage, judgment or expense to the extent arising out of any untrue
statement or alleged untrue statement of a material fact contained in any
Prospectus, or the omission or alleged omission therefrom of a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, in any such case made in reliance
upon and in conformity with written information
16
furnished to the Company by such Investor Group, Holder or Underwriter
expressly for use in a Registration Statement (or any amendment thereto) or
any Prospectus (or any amendment or supplement thereto); provided, further,
that the Company shall not be liable to any Holder with respect to any
preliminary prospectus to the extent that any such loss, liability, claim,
damage, cost or expense results from the fact that such Holder sold
Registrable Securities to a Person to whom there was not sent or given, at or
prior to the written confirmation of such sale, a copy of the final prospectus
if the Company has previously and timely furnished copies thereof to such
Holder and if such final prospectus would have corrected such untrue statement
or omission. Such indemnity shall remain in full force and effect regardless
of any investigation made by or on behalf of any Holder Indemnified Party and
shall survive the Transfer of such securities by any Holder.
(b) Indemnification by Holders. Each selling Holder severally agrees
to indemnify and hold harmless the Company, each Underwriter and the other
selling Holders and Investor Groups, and each of their respective partners,
managers, officers and employees (including each officer of the Company who
signed the Registration Statement), and each Person, if any, who controls the
Company, any Underwriter or any other selling Holder or Investor Group within
the meaning of Section 15 of the Securities Act, against any and all losses,
liabilities, claims, damages, judgments and expenses described in the
indemnity contained in paragraph (a) of this Section (provided that any
settlement of the type described therein is effected with the written consent
of such selling Holder), as incurred, but only with respect to untrue
statements or alleged untrue statements of a material fact contained in any
Prospectus or the omissions, or alleged omissions therefrom of a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, in any such case made in reliance
upon and in conformity with written information furnished to the Company by
such selling Holder expressly for use in such Registration Statement (or any
amendment thereto) or such Prospectus (or any amendment or supplement
thereto).
(c) Conduct of Indemnification Proceedings. Each indemnified party
or parties shall give reasonably prompt notice to each indemnifying party or
parties of any action or proceeding commenced against it in respect of which
indemnity may be sought hereunder, but failure so to notify an indemnifying
party or parties shall not relieve it or them from any liability which it or
they may have under this indemnity agreement, except to the extent that the
indemnifying party is materially prejudiced by such failure to give notice. If
the indemnifying party or parties so elects within a reasonable time after
receipt of such notice, the indemnifying party or parties may assume the
defense of such action or proceeding at such indemnifying party's or parties'
expense with counsel chosen by the indemnifying party or parties and approved
by the indemnified party defendant in such action or proceeding, which
approval shall not be unreasonably withheld; provided, however, that, if such
indemnified party or parties determine in good faith that a conflict of
interest exists and that therefore it is advisable for such indemnified party
or parties to be represented by separate counsel or that, upon advice of
counsel, there may be legal defenses available to it or them which are
different from or in addition to those available to the indemnifying party,
then the indemnifying party or parties shall not be entitled to assume such
defense and the indemnified party or parties shall be entitled to separate
counsel (limited in each jurisdiction to one counsel for all Underwriters and
another counsel for all other indemnified parties under this Agreement) at the
indemnifying party's or parties' expense. If an indemnifying party or parties
is or are not so entitled to assume the
17
defense of such action or does or do not assume such defense, after having
received the notice referred to in the first sentence of this paragraph, the
indemnifying party or parties will pay the reasonable fees and expenses of
counsel for the indemnified party or parties (limited in each jurisdiction to
one counsel for all Underwriters and another counsel for all other indemnified
parties under this Agreement). No indemnifying party or parties will be liable
for any settlement effected without the written consent of such indemnifying
party or parties, which consent shall not be unreasonably withheld. If an
indemnifying party is entitled to assume, and assumes, the defense of such
action or proceeding in accordance with this paragraph, such indemnifying
party or parties shall not be liable for any fees and expenses of counsel for
the indemnified parties incurred thereafter in connection with such action or
proceeding.
(d) Contribution. (i) In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
this Section is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms in respect of any
losses, liabilities, claims, damages, judgments and expenses suffered by an
indemnified party referred to therein, each applicable 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,
liabilities, claims, damages, judgments and expenses in such proportion as is
appropriate to reflect the relative fault of the Company on the one hand and
of the liable selling Holders (including, in each case, that of their
respective officers, managers, employees and agents) on the other in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages, judgments or expenses, as well as any other
relevant equitable considerations. The relative fault of the Company on the
one hand and of the liable selling Holders (including, in each case, that of
their respective officers, managers, employees and agents) on the other shall
be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company, on the one hand, or by or on behalf of the selling Holders, on the
other, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid
or payable by a party as a result of the losses, liabilities, claims, damages,
judgments and expenses referred to above shall be deemed to include, subject
to the limitations set forth in paragraph (c) of this Section, any legal or
other fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim.
(ii) The Company and each Holder of Registrable Securities
agree that it would not be just and equitable if contribution pursuant to
this paragraph (d) were determined by pro rata allocation or by any other
method of allocation which does not take account of the equitable
considerations referred to in sub-paragraph (i) above. Notwithstanding
the provisions of this paragraph (d), in the case of distributions to the
public, an indemnifying Holder shall not be required to contribute any
amount in excess of the amount by which (A) the total price at which the
Registrable Securities sold by such indemnifying Holder and its
affiliated indemnifying Holders and distributed to the public were
offered to the public exceeds (B) the amount of any damages which such
indemnifying Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No
Person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be
18
entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
(iii) For purposes of this Section, each Person, if any, who
controls a Holder, Investor Group or an Underwriter within the meaning of
Section 15 of the Securities Act (and their respective partners,
managers, officers and employees) shall have the same rights to
contribution as such Holder, Investor Group or Underwriter; and each
manager of the Company, each officer of the Company who signed the
Registration Statement, and each Person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act, shall have the
same rights to contribution as the Company.
Section 6. Miscellaneous.
-------------
(a) No Inconsistent Agreements. The Company will not on or after the
date of this Agreement enter into any agreement which conflicts with the
provisions of this Agreement or which grants registration or similar rights
without the prior written consent of the Sponsor Stockholders, nor has the
Company entered into any such agreement. The rights granted to the Holders
hereunder do not in any way conflict with and are not inconsistent with the
rights granted to the holders of the Company's other issued and outstanding
securities under any such agreements.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company has obtained the prior written consent of
the Sponsor Stockholders, by the Holders of a majority of the Registrable
Securities, and, if any such amendment, modification, supplement, waiver or
consent would materially adversely affect the rights of any Holder hereunder
in a different manner or degree than would affect the rights of all Holders,
the written consent of each such adversely affected Holder shall be obtained;
provided, however, that nothing herein shall prohibit any amendment,
modification, supplement, waiver or consent the effect of which is limited
only to those Holders who have agreed to such amendment, modification,
supplement, waiver or consent.
(c) Investor Action. Any action which requires the approval of an
Investor Group shall only be effective if approved by Investors beneficially
holding a majority of the Registrable Securities held by all members of such
Investor Group.
19
(d) Notices. Any notice, demand, request, waiver, or other
communication under this Agreement shall be personally served in writing,
shall be deemed to have been given on the date of service, and shall be
addressed as follows:
To the Company: Foundation Coal Holdings, LLC
000 Xxxxxxxxx Xxxxxxxxx
Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention:
Fax:
With copies to: The Blackstone Group
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx
Fax: (000) 000-0000
First Reserve Corporation
Xxx Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
Fax: (000) 000-0000
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx
Fax: (000) 000-0000
Bartlit Xxxx Xxxxxx Xxxxxxxxx & Xxxxx LLP
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxx
Fax: (000) 000-0000
To Blackstone Investor Group: The Blackstone Group
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx
Fax: (000) 000-0000
With a copy to: Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx
Fax: (000) 000-0000
To FRC Investor Group: First Reserve Corporation
Xxx Xxxxxxxxx Xxxxx
00
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
Fax: (000) 000-0000
With a copy to: Bartlit Xxxx Xxxxxx Xxxxxxxxx & Xxxxx LLP
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxx
Fax: (000) 000-0000
To AMCI Investor Group: AMCI Acquisition, LLC
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxx
Fax: (000) 000-0000
With a copy to: McGuireWoods LLP
One Xxxxx Center
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Fax: (000) 000-0000
To any other Stockholder At the address set forth on Schedule I.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including, without the need for an express assignment,
subsequent Holders. If any successor, assignee or transferee of any Holder
shall acquire Registrable Securities in any manner, whether by operation of
law or otherwise, such Registrable Securities shall be held subject to all of
the terms of this Agreement, and by taking and holding such Registrable
Securities such Person shall be conclusively deemed to have agreed to be bound
by and to perform all of the terms and provisions of this Agreement. For
purposes of this Agreement, "successor" for any entity other than a natural
person shall mean a successor to such entity as a result of such entity's
merger, consolidation, liquidation, dissolution, sale of substantially all of
its assets, or similar transaction.
(f) Recapitalizations, Exchanges, etc., Affecting Registrable
Securities. The provisions of this Agreement shall apply, to the full extent
set forth herein with respect to the Registrable Securities, to any and all
securities or capital stock of the Company or any successor or assign of the
Company (whether by merger, consolidation, sale of assets or otherwise) which
may be issued in respect of, in exchange for, or in substitution of such
Registrable Securities, by reason of any dividend, split, issuance, reverse
split, combination, recapitalization, reclassification, merger, consolidation
or otherwise.
21
(g) Counterparts. This Agreement may be executed in two or more
counterparts, each of which, when so executed and delivered, shall be deemed
to be an original, but all of which counterparts, taken together, shall
constitute one and the same instrument.
(h) Descriptive Headings, Etc. The headings in this Agreement are
for convenience of reference only and shall not limit or otherwise affect the
meaning of terms contained herein. Unless the context of this Agreement
otherwise requires: (1) words of any gender shall be deemed to include each
other gender; (2) words using the singular or plural number shall also include
the plural or singular number, respectively; (3) the words "hereof", "herein"
and "hereunder" and words of similar import when used in this Agreement shall
refer to this Agreement as a whole and not to any particular provision of this
Agreement, and Article, Section and paragraph references are to the Articles,
Sections and paragraphs to this Agreement unless otherwise specified; (4) the
word "including" and words of similar import when used in this Agreement shall
mean "including, without limitation," unless otherwise specified; (5) "or" is
not exclusive; and (6) provisions apply to successive events and transactions.
(i) Severability. In the event that any one or more of the
provisions, paragraphs, words, clauses, phrases or sentences contained herein,
or the application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision, paragraph, word, clause, phrase or
sentence in every other respect and of the other remaining provisions,
paragraphs, words, clauses, phrases or sentences hereof shall not be in any
way impaired, it being intended that all rights, powers and privileges of the
parties hereto shall be enforceable to the fullest extent permitted by law.
(j) Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES WHICH WOULD RESULT IN THE APPLICATION OF THE LAWS
OF ANOTHER JURISDICTION.
(k) Specific Performance. The parties hereto acknowledge that there
would be no adequate remedy at law if any party fails to perform in any
material respect any of its obligations hereunder, and accordingly agree that
each party, in addition to any other remedy to which it may be entitled at law
or in equity, shall be entitled to compel specific performance of the
obligations of any other party under this Agreement in accordance with the
terms and conditions of this Agreement.
22
(l) Arbitration. Any dispute, controversy or claim arising out of or
relating to this Agreement or the Registration Rights Agreement (a "Dispute"),
shall be settled by binding arbitration in accordance with the commercial
arbitration rules of the Center for Public Resources. Any such Dispute shall
be consolidated, to the extent practicable, in any arbitration with any
dispute, claim or controversy of any other Stockholder unless the arbitrator
decides that such consolidation cannot occur. The arbitration shall be
conducted in New York City, New York, and any court having jurisdiction
thereof may be immediately issue judgment on the arbitration award. The
Stockholders agree that the arbitration provided for in this Section 6(l)
shall be the exclusive means to resolve all Disputes.
(m) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. This Agreement supersedes
all prior agreements and understandings between the Company, on the one hand,
and the other parties to this Agreement, on the other, with respect to such
subject matter.
(n) Other Registration Rights Agreement. Each of the Stockholders
and the Company (as surviving corporation in the Merger) agrees that the
Registration Rights Agreement dated as of July 30, 2004 to which it is party
is hereby terminated and of no further force and effect.
* * *
23
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first written above.
FOUNDATION COAL HOLDINGS, INC.
By:
-----------------------------
Name: Xxxx Xxxxxx
Title: Senior V.P. - General Counsel
and Secretary
FIRST RESERVE FUND IX, L.P.
By: First Reserve GP IX, L.P.,
its General Partner
By: First Reserve GP IX, Inc.,
its General Partner
By:
-----------------------------
Name:
Title:
BLACKSTONE FCH CAPITAL PARTNERS IV L.P.
By: Blackstone Management Associates IV
L.L.C., its General Partner
By:
----------------------------------
Name: Xxxxx X. Xxxxx
Title: Authorized Signatory
BLACKSTONE FAMILY INVESTMENT
PARTNERSHIP IV-A L.P.
By: Blackstone Management Associates IV
L.L.C., its General Partner
By:
----------------------------------
Name: Xxxxx X. Xxxxx
Title: Authorized Signatory
[Signature Page to Registration Rights Agreement]
AMCI ACQUISITION, LLC
By:
-----------------------------
Name:
Title:
Management Stockholders:
-----------------------------------------------
Xx. Xxxxx Xxxxxx-Xxxx
-----------------------------------------------
Xxxxx X. Xxxxx
-----------------------------------------------
Xxxxx X. Xxxxx
-----------------------------------------------
Xxxxxxx X. Xxxxxxx
-----------------------------------------------
Xxxxx X. Xxxxxxx
-----------------------------------------------
Xxxx X. Xxxxxxxx
-----------------------------------------------
Xxxx X. Xxxxxx
-----------------------------------------------
Xxxxx X. Xxxx
[Signature Page to Registration Rights Agreement]
Schedule I
Addresses for Other Stockholders
Stockholder:
------------
Xx. Xxxxx Xxxxxx-Xxxx
Address: 000 Xxxxxxx Xxxxx Xxxx Xxxxx
Xxxxxxxxx, XX 00000
Xxxxx X. Xxxxx
Address: 0000 Xxxxx Xxxxxxx Xxxxx
Xxxxxxxx Xxxx, XX 00000
Xxxxx X. Xxxxx
Address: 0000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxxx
Address: 0000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxxxxx, XX 00000
Xxxxx X. Xxxxxxx
Address: 000 Xxxx Xxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
Xxxx X. Xxxxxxxx
Address: 000 Xxxxxxx Xxxxx
Xxxxxxx Xxxx, XX 00000
Xxxx X. Xxxxxx
Address: 00 Xxxxxxx Xxxxx Xxxx Xxxxx
Xxxxxxxxx, XX 00000
Xxxxx X. Xxxx
Address: 000 Xxxxxxxxxx Xxxxx
Xxxxxxx Xxxx, XX 00000
[Signature Page to Registration Rights Agreement]
