REGISTRATION RIGHTS AGREEMENT BY AND BETWEEN ENERGY CORPORATION OF AMERICA, JOHN MORK, JULIE MORK AND ECA MARCELLUS TRUST I DATED AS OF [____], 2010
Exhibit 10.15
REGISTRATION RIGHTS AGREEMENT
BY AND BETWEEN
ENERGY CORPORATION OF AMERICA,
XXXX XXXX,
XXXXX XXXX
AND
ECA MARCELLUS TRUST I
DATED AS OF [____], 2010
BY AND BETWEEN
ENERGY CORPORATION OF AMERICA,
XXXX XXXX,
XXXXX XXXX
AND
ECA MARCELLUS TRUST I
DATED AS OF [____], 2010
This REGISTRATION RIGHTS AGREEMENT (the “Agreement”) is made and entered into as of
[___], 2010, by and among ECA Marcellus Trust I, statutory trust formed under the laws of the State
of Delaware (the “Trust”), and Energy Corporation of America (“ECA”), a West Virginia corporation,
Xxxx Xxxx and Xxxxx Xxxx (collectively with ECA and Xxxx Xxxx, the “Principal Unitholders”).
RECITALS:
WHEREAS, in connection with the Initial Public Offering, the Trust has agreed to file a
registration statement or registration statements relating to the sales by the Principal
Unitholders and its Transferees (as defined below) of certain of the Trust Units.
NOW, THEREFORE, in consideration of the premises and the covenants hereinafter contained and
for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, it is agreed as follows:
SECTION 1. Definitions. As used in this Agreement, the following terms shall have the
following meanings:
“Affiliate” means with respect to a specified person, any person that directly or indirectly
controls, is controlled by, or is under common control with, the specified person. As used in this
definition, the term “control” (and the correlative terms “controlling,” “controlled by,” and
“under common control”) shall mean the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of a person, whether through ownership of
voting securities, by contract or otherwise.
“Agreement” has the meaning set forth in the preamble hereof.
“Business Day” means each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on
which banking institutions in The City of New York are authorized or obligated by law or executive
order to close.
“Common Units” has the meaning set forth in the Trust Agreement.
“Deferral Notice” has the meaning set forth in Section 3(j) hereof.
“Deferral Period” has the meaning set forth in Section 3(j) hereof.
“Demand Notice” has the meaning set forth in Section 2(a) hereof.
“Demand Registration” has the meaning set forth in Section 2(a) hereof.
“Demanding Qualified Holder(s)” shall mean, with respect to any Demand Registration, the
Qualified Holder(s) delivering the relevant Demand Notice.
“ECA” has the meaning set forth in the preamble.
“Effective Period” means the period commencing on the 180th day after the date
hereof and ending on the date that all Registrable Securities have ceased to be Registrable
Securities.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated by the SEC thereunder.
“Expenses” has the meaning set forth in Section 6(a) hereof.
“Indemnified Party” has the meaning set forth in Section 6(d) hereof.
“Indemnifying Party” has the meaning set forth in Section 6(d) hereof.
“Initial Public Offering” means the initial public offering of Common Units registered with
the SEC by a registration statement on Form S-1 (Registration No. 333-165833).
“Material Event” has the meaning set forth in Section 3(j) hereof.
“Notice” has the meaning set forth in Section 2(a) hereof.
“person” shall mean any individual, partnership, limited liability company, corporation,
trust, unincorporated association, governmental agency, subdivision, or instrumentality, or other
entity or association.
“Principal Unitholders” has the meaning set forth in the preamble.
“Prospectus” means the prospectus included in any Registration Statement (including, without
limitation, a prospectus that discloses information previously omitted from a prospectus filed as
part of an effective registration statement in reliance upon Rule 430A, Rule 430B or Rule 430C
promulgated under the Securities Act), as amended or supplemented by any amendment, prospectus
supplement or free writing prospectus (as defined in Rule 405 promulgated under the Securities
Act), including post-effective amendments, and all materials incorporated by reference or
explicitly deemed to be incorporated by reference in such Prospectus.
“Qualified Holder” shall mean the Principal Unitholders and any Transferee of a Principal
Unitholder to whom Registrable Securities are permitted to be transferred in accordance with the
terms of this Agreement, and, in each case, who continues to be entitled to the rights of a
Qualified Holder hereunder.
“Registrable Securities” means the Trust Units held by the Qualified Holders and any
securities into or for which such Trust Units have been converted or exchanged, and any security
issued with respect thereto upon any dividend, split or similar event until, in the case of any
such security, the earliest of (i) its effective registration under the Securities Act and resale
in accordance with the Registration Statement covering it, (ii) its disposal pursuant to Rule 144
(or any similar provision then in force, but not Rule 144A) under the Securities Act, (iii) its
sale in a private transaction in which the transferor’s rights under this Agreement are not
assigned to the transferee of the securities, (iv) its being held by the Trust, (v) 10 years after
the Qualified Holder ceases to be an Affiliate of the Trust, or (vi) if such security has been sold
in a private
transaction in which the tranferor’s rights under this Agreement are assigned to the
transferee and such transferee is not an Affiliate of the Trust, the time that is two years following the
later of (a) if the security is a Subordinated Unit, the conversion of the Subordinated Unit into a
Common Unit and (b) the transfer of such security to such transferee.
“Registration Statement” means any registration statement of the Trust, including any Shelf
Registration Statement, that covers any of the Registrable Securities pursuant to the provisions of
this Agreement, including the Prospectus, amendments and supplements to such registration
statement, including post-effective amendments, all exhibits and all materials incorporated by
reference or explicitly deemed to be incorporated by reference in such registration statement.
“Required Information” has the meaning set forth in Section 4(a) hereof.
“Rule 144” means Rule 144 under the Securities Act, as such Rule may be amended from time to
time, or any similar rule or regulation hereafter adopted by the SEC.
“Rule 144A” means Rule 144A under the Securities Act, as such Rule may be amended from time to
time, or any similar rule or regulation hereafter adopted by the SEC.
“SEC” means the Securities and Exchange Commission.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations
promulgated by the SEC thereunder.
“Shelf Registration Statement” means a Registration Statement for an offering to be made on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act registering the resale of
Registrable Securities from time to time by Qualified Holders thereof.
“Special Counsel” means Xxxxxx & Xxxxxx L.L.P. or such other successor counsel as shall be
specified in writing by the Qualified Holders holding a majority of all Registrable Securities.
“Subordinated Units” has the meaning set forth in the Trust Agreement.
“Transferee” has the meaning set forth in Section 9(d) hereof.
“Trust” has the meaning set forth in the preamble hereof.
“Trust Agreement” means that certain Amended and Restated Trust Agreement of the Trust, dated
as of the date hereof.
“Trust Units” means Common Units, Subordinated Units, and Common Units issuable upon
conversion of the Subordinated Units pursuant to the terms of the Trust Agreement.
SECTION 2. Demand Registration Rights.
(a) Commencing 180 days after the Initial Public Offering, a Qualified Holder shall have the
right by delivering a written notice to the Trust (the “Demand Notice”) to require the Trust to
register, pursuant to the terms of this Agreement under and in accordance with the provisions of
the Securities Act, the number of Registrable Securities requested to be so registered pursuant to
the terms and conditions set forth in this Agreement (a “Demand Registration”). Following receipt
of a Demand Notice for a Demand Registration, the Trust shall use its reasonable best efforts to
file a Registration Statement as promptly as practicable, but not later than 45 days after such
Demand Notice, and shall use its reasonable best efforts to cause such Registration Statement to be
declared effective under the Securities Act as promptly as practicable after the filing thereof.
Each Principal Unitholder shall be entitled to a maximum of one Demand Registration, which, if
such Demand Registration has not been exercised, may be transferred to any of such Principal
Unitholder’s successors or assigns who becomes a Qualified Holder pursuant to Section 9(d);
provided, however, that no such succession or assignment shall have the effect of increasing the
number of Demand Registrations to be performed by the Trust with respect to the Registrable
Securities held by such Principal Unitholder. Notwithstanding any other provisions of this Section
2, in no event shall more than one Demand Registration occur during any six-month period (measured
from the effective date of the Registration Statement to the date of the next Demand Notice) or
within 120 days after the effective date of a Registration Statement filed by the Trust; provided
that no Demand Registration may be prohibited for such 120-day period more often than once in a
12-month period.
No Demand Registration shall be deemed to have occurred for purposes of this Section 2(a) if
the Registration Statement relating thereto does not become effective or is not maintained
effective for the period required pursuant to this Section 2(a), in which case the Demanding
Qualified Holders shall be entitled to an additional Demand Registration in lieu thereof.
Within ten (10) days after receipt by the Trust of a Demand Notice, the Trust shall give
written notice (the “Notice”) of such Demand Notice to all other Qualified Holders and shall,
subject to the provisions of Section 2(b) hereof, include in such registration all Registrable
Securities held by such Qualified Holders with respect to which the Trust received written requests
for inclusion therein within ten (10) days after such Notice is given by the Trust to such holders.
All requests made pursuant to this Section 2 will specify the amount of Registrable Securities
to be registered and the intended methods of disposition thereof.
The Trust shall be required to maintain the effectiveness of the Registration Statement with
respect to any Demand Registration for a period of ninety (90) days after the effective date
thereof or, in the case of a Shelf Registration Statement, the Effectiveness Period; provided,
however, that such period shall be extended for a period of time equal to the period the holders of
Registrable Securities refrain from selling any securities included in such registration at the
request of (i) an underwriter of the Trust or (ii) the Trust pursuant to this Agreement.
(b) If any of the Registrable Securities registered pursuant to a Demand Registration are to
be sold in a firm commitment underwritten offering, and the managing underwriter or underwriters
advise the holders of such securities in writing that in its view the total amount of securities
proposed to be sold in such offering is such as to adversely affect the success of such offering
(including, without limitation, securities proposed to be included by other holders of securities
entitled to include securities in the Registration Statement pursuant to incidental or piggyback
registration rights), then the amount of securities to be offered (i) for the account of Demanding
Qualified Holders and (ii) for the account of all such other persons (other than the Demanding
Qualified Holders) shall be reduced to the extent necessary to reduce the total amount of
securities to be included in such offering to the amount recommended by such managing underwriter
or underwriters by first reducing, or eliminating if necessary, all securities of the Trust
requested to be included by such other persons and then, if necessary, reducing the Registrable
Securities requested to be included by the Demanding Qualified Holders, pro rata among such
security holders on the basis of the percentage of the Registrable Securities requested to be
included in such Registration Statement by such security holders. In connection with any Demand
Registration to which the provisions of this subsection (b) apply, no securities other than
Registrable Securities shall be covered by such Demand Registration except as provided in
subsection 2(b)(ii) hereof, and such registration shall not reduce the number of available
registrations with respect to the Qualified Holders under this Section 2 in the event that the
Registration Statement excludes more than 25% of the aggregate number of Registrable Securities
that the Demanding Qualified Holders requested be included.
(c) The Trust shall be entitled to postpone (but not more than once in any 12-month period),
for a reasonable period of time not in excess of 90 days, the filing of a Registration Statement if
the Trust delivers to the Demanding Qualified Holders a certificate signed by the Trust certifying
that, in its good faith judgment, it would be detrimental to the Trust and its unitholders for such
Registration Statement to be filed and it is therefore beneficial to defer the filing of such
Registration Statement. If the Trust shall so postpone the filing of a Registration Statement, the
Demanding Qualified Holders shall have the right to withdraw the request for registration by giving
written notice to the Trust within 20 days of the anticipated termination date of the postponement
period, as provided in the certificate delivered thereto, and in the event of such withdrawal, such
request shall not reduce the number of available registrations with respect to the Qualified
Holders under this Section 2.
(d) Whenever the Trust shall effect a Demand Registration pursuant to this Section 2 in
connection with an underwritten offering, no securities other than Registrable Securities shall be
included among the securities covered by such Demand Registration unless (i) the managing
underwriter of such offering shall have advised each holder of Registrable Securities requesting
such registration in writing that it believes that the inclusion of such other securities would not
adversely affect such offering or (ii) the inclusion of such other securities is approved by the
affirmative vote of the holders of at least a majority of the Registrable Securities included in
such Demand Registration by the Demanding Qualified Holders.
SECTION 3. Registration Procedures. In connection with the registration obligations
of the Trust under Section 2 hereof, during the Effective Period, the Trust shall:
(a) Prepare and file with the SEC a Registration Statement or Registration Statements,
including if so requested by the Qualified Holders a Shelf Registration Statement, on any
appropriate form under the Securities Act available for the sale of the Registrable Securities by
the holders thereof in accordance with the intended method or methods of distribution thereof, and
use commercially reasonable efforts to cause each such Registration Statement to become effective
and remain effective as provided herein; provided that before filing any Registration Statement or
Prospectus or any amendments or supplements thereto with the SEC (but excluding reports filed with
the SEC under the Exchange Act), furnish to the Qualified Holders, the Special Counsel and the
managing underwriter or underwriters, if any, copies of all such documents proposed to be filed at
least three (3) Business Days prior to the filing of such Registration Statement or amendment
thereto or Prospectus or supplement thereto.
(b) Subject to Section 3(j), prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such Registration Statement
continuously effective during the period provided herein with respect to the disposition of all
securities covered by such Registration Statement; cause the related Prospectus to be supplemented
by any required prospectus supplement or free writing prospectus, and as so supplemented to be
filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act; and
use commercially reasonable efforts to comply with the provisions of the Securities Act applicable
to the Trust with respect to the disposition of all securities covered by such Registration
Statement during the period provided herein with respect to the disposition of all securities
covered by such Registration Statement in accordance with the intended methods of disposition by
the sellers thereof set forth in such Registration Statement as so amended or such Prospectus as so
supplemented.
(c) Subject to Section 3(j), from and after the date a Registration Statement is declared
effective, the Trust shall, as promptly as practicable after the date the Required Information is
delivered pursuant to Section 4 hereof and in accordance with this Section 3(c):
(i) if required by applicable law, file with the SEC a post-effective amendment to the
Registration Statement or prepare and, if required by applicable law, file a supplement to
the related Prospectus or a supplement or amendment to any document incorporated therein by
reference or file any other required document so that the Qualified Holder delivering such
Required Information is named as a selling securityholder in the Registration Statement and
the related Prospectus in such a manner as to permit such Qualified Holder to deliver such
Prospectus to purchasers of the Registrable Securities in accordance with applicable law
and, if the Trust shall file a post-effective amendment to the Registration Statement, use
commercially reasonable efforts to cause such post-effective amendment to be declared
effective under the Securities Act as promptly as is practicable; and
(ii) provide such Qualified Holder copies of any documents filed pursuant to Section
3(c)(i);
provided, that, if the Required Information is delivered during a Deferral Period, the Trust shall
so inform the Qualified Holder delivering such Required Information. The Trust shall notify such
Qualified Holder as promptly as practicable after the effectiveness under the Securities Act of any
post-effective amendment filed pursuant to Section 3(c)(i). Notwithstanding anything contained
herein to the contrary, the Trust shall be under no obligation to name any Qualified Holder that
has failed to deliver the Required Information in the manner set forth in Section 4 hereof as a
selling securityholder in any Registration Statement or related Prospectus.
(d) As promptly as practicable give notice to the Qualified Holders, the Special Counsel and
the managing underwriter or underwriters, if any, (i) when any Prospectus, Registration Statement
or post-effective amendment to a Registration Statement has been filed with the SEC and, with
respect to a Registration Statement or any post-effective amendment thereto, when the same has been
declared effective, (ii) of any request, following the effectiveness of any Registration Statement
under the Securities Act, by the SEC or any other federal or state governmental authority for
amendments or supplements to any Registration Statement or related Prospectus, (iii) of the
issuance by the SEC or any other federal or state governmental authority of any stop order
suspending the effectiveness of any Registration Statement or the initiation or threatening of any
proceedings for that purpose, (iv) of the receipt by the Trust of any notification with respect to
the suspension of the qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such
purpose, (v) of the occurrence of, but not the nature of or details concerning, a Material Event
and (vi) of the determination by the Trust that a post-effective amendment to a Registration
Statement will be filed with the SEC, which notice may, at the discretion of the Trust (or as
required pursuant to Section 3(j)), state that it constitutes a Deferral Notice, in which event the
provisions of Section 3(j) shall apply.
(e) Use commercially reasonable efforts to obtain the withdrawal of any order suspending the
effectiveness of a Registration Statement or the lifting of any suspension of the qualification (or
exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction in
which they have been qualified for sale, in either case as promptly as practicable, and provide
prompt notice to each Qualified Holder of the withdrawal of any such order.
(f) If requested by the managing underwriters, if any, or the Qualified Holders of the
Registrable Securities being sold in connection with an underwritten offering, promptly include in
a prospectus supplement or post-effective amendment such information as the managing underwriters,
if any, and such Qualified Holders may reasonably request in order to permit the intended method of
distribution of such securities and make all required filings of such prospectus supplement or such
post-effective amendment as soon as practicable after the Trust has received such request;
provided, however, that the Trust shall not be required to take any actions under this Section 3(f)
that are not, in the opinion of counsel for the Trust, in compliance with applicable law.
(g) As promptly as practicable furnish to each Qualified Holder, the Special Counsel and each
managing underwriter, if any, upon request, at least one (1) conformed copy of the Registration
Statement and any amendment thereto, including exhibits and, if requested, all documents
incorporated or deemed to be incorporated therein by reference.
(h) Deliver to each Qualified Holder, the Special Counsel and each managing underwriter, if
any, in connection with any sale of Registrable Securities pursuant to a Registration Statement as
many copies of the Prospectus relating to such Registrable Securities (including each preliminary
Prospectus) and any amendment or supplement thereto as such persons may reasonably request; and the
Trust hereby consents (except during such periods that a Deferral Notice is outstanding and has not
been revoked and subject to Section 3(j)(ii) hereof) to the use of such Prospectus or each
amendment or supplement thereto by each Qualified Holder and the underwriters, if any, in
connection with any offering and sale of the Registrable Securities covered by such Prospectus or
any amendment or supplement thereto in the manner set forth therein.
(i) Prior to any public offering of the Registrable Securities pursuant to a Registration
Statement, use commercially reasonable efforts to register or qualify or cooperate with the
Qualified Holders, the Special Counsel and the underwriters, if any, in connection with the
registration or qualification (or exemption from such registration or qualification) of such
Registrable Securities for offer and sale under the securities or Blue Sky laws of such
jurisdictions within the United States as any Qualified Holder or underwriter reasonably requests
in writing (which request may be included with the Required Information); prior to any public
offering of the Registrable Securities pursuant to the Registration Statement, use commercially
reasonable efforts to keep each such registration or qualification (or exemption therefrom)
effective during the period provided herein with respect to the disposition of all securities
covered by such Registration Statement in connection with such Qualified Holder’s offer and sale of
Registrable Securities pursuant to such registration or qualification (or exemption therefrom) and
do any and all other acts or things reasonably necessary or advisable to enable the disposition in
such jurisdictions of such Registrable Securities in the manner set forth in the relevant
Registration Statement and the related Prospectus; provided that neither the Trust nor the Trust
will be required to (i) qualify as a foreign entity or as a dealer in securities in any
jurisdiction where it would not otherwise be required to qualify but for this Agreement or (ii)
take any action that would subject it to general service of process or to taxation in any such
jurisdiction where it is not then so subject.
(j) Upon (A) the issuance by the SEC of a stop order suspending the effectiveness of any
Registration Statement or the initiation of proceedings with respect to any Registration Statement
under Section 8(d) or 8(e) of the Securities Act, (B) the occurrence of any event or the existence
of any fact as a result of which (x) any Registration Statement shall contain any untrue statement
of a material fact or omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, or (y) any Prospectus shall contain any untrue
statement of a material fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading
(each of subclauses (x) and (y) hereof, a “Material Event”), or (C) the occurrence or existence of
any pending corporate development of the Trust that, in the reasonable discretion of the Trust,
makes it appropriate to suspend the availability of any Registration Statement and the related
Prospectus, the Trust shall:
(i) in the case of clause (B) above, subject to clause (ii) below, as promptly as
practicable prepare and file, if necessary pursuant to applicable law, a post-effective
amendment to such Registration Statement or a supplement to the related Prospectus or
any document incorporated therein by reference or file any other required document that
would be incorporated by reference into such Registration Statement and Prospectus so that
such Registration Statement does not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make the statements
therein not misleading, and such Prospectus does not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein or necessary
in order to make the statements therein, in the light of the circumstances under which they
were made, not misleading, as thereafter delivered to the purchasers of the Registrable
Securities being sold thereunder, and, in the case of a post-effective amendment to a
Registration Statement, subject to clause (ii) below, use commercially reasonable efforts to
cause it to be declared effective as promptly as practicable; and
(ii) give notice to the Qualified Holders and the Special Counsel, if any, that the
availability of any Registration Statement is suspended (a “Deferral Notice”) and, upon
receipt of any Deferral Notice, each Qualified Holder agrees not to sell any Registrable
Securities pursuant to the Registration Statement until such Qualified Holder’s receipt of
copies of the supplemented or amended Prospectus provided for in clause (i) above, or until
it is advised in writing by the Trust that the Prospectus may be used, and has received
copies of any additional or supplemental filings that are incorporated or deemed
incorporated by reference in such Prospectus, in which case such Qualified Holder will use
the Prospectus as so supplemented or amended in connection with any offering and sale of
Registrable Securities covered thereby.
The Trust shall use commercially reasonable efforts to ensure that the use of the Prospectus may be
resumed (x) in the case of clause (A) above, as promptly as is practicable, (y) in the case of
clause (B) above, as soon as, in the sole judgment of the Trust, public disclosure of such Material
Event would not be prejudicial to or contrary to the interests of the Trust or, if necessary to
avoid unreasonable burden or expense, as soon as practicable thereafter, and (z) in the case of
clause (C) above, as soon as, in the reasonable discretion of the Trust, such suspension is no
longer appropriate. The Trust shall be entitled to exercise its right under this Section 3(j) to
suspend the availability of any Registration Statement or any Prospectus (the “Deferral Period”)
for use by any Qualified Holder.
(k) If reasonably requested by a Qualified Holder or any underwriter participating in any
disposition of Registrable Securities, if any, in writing in connection with a disposition by such
Qualified Holder of Registrable Securities pursuant to a Registration Statement, make reasonably
available for inspection during normal business hours by a representative for such Qualified
Holder(s) of such Registrable Securities, any broker-dealers, underwriters, attorneys and
accountants retained by such Qualified Holder(s), and any attorneys or other agents retained by a
broker-dealer or underwriter engaged by such Qualified Holder(s), all relevant financial and other
records and pertinent corporate documents and properties of the Trust, and cause the appropriate
officers, directors and employees of the Trust to make reasonably available for inspection during
normal business hours on reasonable notice all relevant information reasonably requested by such
representative for the Qualified Holder(s), or any such broker-dealers, underwriters, attorneys or
accountants in connection with such disposition, in each case as is customary for similar “due
diligence” examinations; provided that (i) the Trust shall not be obligated to make available for
inspection any information that, based on the reasonable advice
of counsel to the Trust, could subject the Trust to the loss of privilege with respect thereto
and (ii) such persons shall first agree in writing with the Trust that any information that is
reasonably designated by the Trust as confidential at the time of delivery of such information
shall be kept confidential by such persons and shall be used solely for the purposes of exercising
rights under this Agreement, unless (a) disclosure of such information is required by court or
administrative order or is necessary to respond to inquiries of regulatory authorities, (b)
disclosure of such information is required by law (including any disclosure requirements pursuant
to federal securities laws in connection with the filing of any Registration Statement or the use
of any Prospectus referred to in this Agreement) or (c) such information becomes generally
available to the public other than as a result of a disclosure or failure to safeguard by any such
person; and provided further that the foregoing inspection and information gathering shall, to the
greatest extent possible, be coordinated on behalf of all the Qualified Holders and the other
parties entitled thereto by Special Counsel, if any, or another representative selected by the
Qualified Holders holding a majority of Registrable Securities being registered pursuant to such
Registration Statement. Any person legally compelled or required by administrative or court order
or by a regulatory authority to disclose any such confidential information made available for
inspection shall provide the Trust with prompt prior written notice of such requirement so that the
Trust may seek a protective order or other appropriate remedy.
(l) Use its best efforts to comply with all applicable rules and regulations of the SEC and
make generally available to the Trust’s securityholders earnings statements (which need not be
audited) satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder
(or any similar rule promulgated under the Securities Act) for a 12-month period commencing on the
first day of the first fiscal quarter of the Trust commencing after the effective date of a
Registration Statement, which statements shall be made available no later than the next succeeding
Business Day after such statements are required to be filed with the SEC.
(m) Cooperate with each Qualified Holder and the managing underwriters, if any, to facilitate
the timely preparation and delivery of certificates representing Registrable Securities sold or to
be sold pursuant to a Registration Statement, which certificates shall not bear any restrictive
legends stating that the Registrable Securities evidenced by the certificates are “restricted
securities” (as defined by Rule 144), and cause such Registrable Securities to be registered in
such names as such Qualified Holder or the managing underwriters, if any, may request in writing at
least two (2) Business Days prior to any sale of such Registrable Securities.
(n) Provide a CUSIP number for all Registrable Securities covered by each Registration
Statement not later than the effective date of such Registration Statement.
(o) Cooperate with and assist each Qualified Holder, the Special Counsel and any underwriters
participating in any disposition of Registrable Securities in any filings required to be made with
the Financial Industry Regulatory Authority in connection with the filing or effectiveness of any
Registration Statement, any post-effective amendment thereto or any offer or sale of Registrable
Securities thereunder.
(p) In the case of a proposed sale pursuant to a Registration Statement involving an
underwritten offering, the Trust shall enter into such customary agreements on behalf of he Trust
(including, if requested, an underwriting agreement in reasonably customary form) and take all
such other action, if any, as Qualified Holders holding a majority of the Registrable
Securities being sold or any managing underwriters reasonably shall request in order to facilitate
any disposition of the Registrable Securities pursuant to such Registration Statement, including,
without limitation, (i) using commercially reasonable efforts to cause its counsel to deliver an
opinion or opinions in reasonably customary form, (ii) using its reasonable best efforts to cause
its officers to execute and deliver all customary documents and certificates on behalf of the Trust
and (iii) using its reasonable best efforts to cause the Trust’s independent public accountants to
provide a comfort letter or letters in reasonably customary form.
(q) Use its reasonable best efforts to support the marketing of the Registrable Securities
covered by the Registration Statement taking into account the Trust’s business needs.
(r) Upon (i) the filing of any Registration Statement and (ii) the effectiveness of any
Registration Statement, announce the same, in each case by press release to Reuters Economic
Services and Bloomberg Business News.
(s) Use commercially reasonable efforts to cause all such Registrable Securities to be listed
on each securities exchange on which similar securities issued by the Trust are listed or traded.
SECTION 4. Qualified Holder’s Obligations.
(a) Each Qualified Holder agrees that if such Qualified Holder wishes to sell Registrable
Securities pursuant to a Registration Statement and related Prospectus, it will do so only in
accordance with this Section 4 and Section 3(j) hereof. The Trust may require each seller of
Registrable Securities as to which any registration is being effected to furnish to the Trust in
writing such information required in connection with such registration regarding such seller and
the distribution of such Registrable Securities as the Trust may, from time to time, reasonably
request in writing (the “Required Information”) and the Trust may exclude from such registration
the Registrable Securities of any seller who unreasonably fails to furnish such information within
a reasonable time after receiving such request. In addition, following the date that a
Registration Statement is declared effective, each Qualified Holder wishing to sell Registrable
Securities pursuant to a Registration Statement and related Prospectus agrees to deliver, at least
seven (7) Business Days prior to any intended distribution of Registrable Securities under the
Registration Statement, to the Trust any additional Required Information as the Trust may
reasonably request so that the Trust may complete or amend the information required by any
Registration Statement.
(b) Each Qualified Holder agrees, by acquisition of the Registrable Securities, that no
Qualified Holder shall be entitled to sell any of such Registrable Securities pursuant to a
Registration Statement or to receive a Prospectus relating thereto unless such Qualified Holder has
furnished the Trust with the Required Information as required pursuant to this Section 4 and the
information set forth in the next sentence. Each Qualified Holder agrees promptly to furnish to
the Trust all information required to be disclosed in order to make the information previously
furnished to the Trust by such Qualified Holder not misleading and any other information regarding
such Qualified Holder and the distribution of such Registrable Securities as the Trust may from
time to time reasonably request. Any sale of any Registrable Securities by any
Qualified Holder shall constitute a representation and warranty by such Qualified Holder that
the information relating to such Qualified Holder and its plan of distribution is as set forth in
the Prospectus delivered by such Qualified Holder in connection with such disposition, that such
Prospectus does not as of the time of such sale contain any untrue statement of a material fact
relating to or provided by such Qualified Holder or its plan of distribution and that such
Prospectus does not as of the time of such sale omit to state any material fact relating to or
provided by such Qualified Holder or its plan of distribution necessary in order to make the
statements in such Prospectus, in the light of the circumstances under which they were made, not
misleading.
SECTION 5. Registration Expenses. The Company shall bear all out-of-pocket fees and
expenses incurred in connection with the performance by the Trust of its obligations under Sections
2 and 3 of this Agreement whether or not any Registration Statement is declared effective. Such
fees and expenses shall include, without limitation, (i) all registration and filing fees
(including, without limitation, fees and expenses (x) with respect to filings required to be made
with the Financial Industry Regulatory Authority and (y) of compliance with federal and state
securities or Blue Sky laws (including, without limitation, reasonable fees and disbursements of
the Special Counsel, if any, in connection with Blue Sky qualifications of the Registrable
Securities under the laws of such jurisdictions as Qualified Holders holding a majority of the
Registrable Securities being sold pursuant to a Registration Statement may designate)), (ii)
printing expenses (including, without limitation, expenses of printing certificates for Registrable
Securities in a form eligible for deposit with The Depository Trust Company), (iii) duplication
expenses relating to copies of any Registration Statement or Prospectus delivered to any Qualified
Holders hereunder, (iv) fees and disbursements of counsel for the Trust and the Special Counsel, if
any, in connection with any Registration Statement, (v) fees of accountants for consents and cold
comfort and (vi) the fees and expenses incurred in connection with the listing by the Trust of the
Registrable Securities on any securities exchange on which similar securities of the Trust are then
listed. However, the Trust shall pay the internal expenses of the Trust (including, without
limitation, all salaries and expenses of officers and employees performing legal or accounting
duties), the expense of any annual audit and the other fees and expenses of the accountants for the
Trust not covered by clause (v) of the preceding sentence, other than any expense that would not
have otherwise been incurred but for the fact of the filing of the Registration Statement or the
timing thereof, the fees and expenses of any person, including special experts, retained by the
Trust and the fees and expenses of any transfer agent for the Registrable Securities.
Notwithstanding the provisions of this Section 5, each seller of Registrable Securities shall pay
its own selling expenses, including any underwriting discount and commissions, all registration
expenses to the extent required by applicable law and, except as otherwise provided herein, fees
and expenses of counsel.
SECTION 6. Indemnification and Contribution.
(a) Indemnification by the Trust. The Trust shall indemnify and hold harmless ECA, each
Qualified Holder and each person, if any, who controls ECA or any Qualified Holder within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities (including, without limitation, any
reasonable legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) (“Expenses”) to which ECA, any Qualified Holder or
any controlling person of ECA or any Qualified Holder may become subject, under or with
respect to the Securities Act, the Exchange Act, any other federal or state securities law or
otherwise, insofar as such Expenses are caused by any untrue statement or alleged untrue statement
of a material fact contained in any Registration Statement at the date and time as of which such
Registration Statement was declared effective by the SEC, any preliminary Prospectus or the
Prospectus, or caused by any omission or alleged omission to state therein a material fact required
to be stated therein or necessary in order to make the statements therein (in the case of a
preliminary Prospectus or Prospectus, in light of the circumstances under which they were made),
not misleading, but in each case only with respect to written information relating to the Trust
furnished by or on behalf of the Trust specifically for inclusion in the documents referred to in
the foregoing indemnity. Subject to Section 6(e) of this Agreement, the Trust shall reimburse ECA,
the Qualified Holders and any controlling persons thereof for any legal or other expenses
reasonably incurred by ECA, the Qualified Holders or any controlling persons thereof in connection
with the investigation or defense of any Expenses with respect to which ECA and the Qualified
Holders or any controlling persons thereof is entitled to indemnity by the Trust under this
Agreement. In connection with any underwritten offering pursuant to Section 8, the Trust will also
agree to indemnify the underwriters, if any, their officers and directors and each person who
controls such underwriters (within the meaning of the Securities Act and the Exchange Act) on terms
and conditions similar to those set forth herein with respect to the indemnification of ECA and the
Qualified Holders, if requested in connection with any Registration Statement, such indemnification
to be set forth in any underwriting agreement to be entered into by the Trust with such
underwriter(s).
(b) Indemnification by ECA. The Company shall indemnify and hold harmless each Qualified
Holder (other than ECA), the Trust and The Bank of New York Mellon Trust Company, N.A., as trustee
of the Trust (the “Trustee”) and any agents thereof, individually and as trustee, as the case may
be, and each person, if any, who controls such Qualified Holder, the Trust or the Trustee within
the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any Expenses (excluding, however, any taxes, fees and other charges payable by the Trust
on, based on or measured by any fees, commissions or compensation received by the Trust for its
services under this Agreement) to which such Qualified Holder, the Trust, the Trustee or any agent
thereof or any controlling person of such Qualified Holder, the Trust or the Trustee may become
subject, under or with respect to the Securities Act, the Exchange Act, any other federal or state
securities law or otherwise, insofar as such Expenses are caused by (i) an untrue statement or
alleged untrue statement of a material fact contained in any Registration Statement or an omission
or alleged omission to state a material fact required to be stated in or necessary to make the
statements therein not misleading at the date and time as of which such Registration Statement was
declared effective by the SEC, (ii) an untrue statement or alleged untrue statement of a material
fact contained in any preliminary Prospectus or any Prospectus or an omission or alleged omission
to state a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading as of the date of such preliminary
Prospectus or Prospectus and as of the closing of the sale of Trust Units sold thereunder or (iii)
any untrue statement or alleged untrue statement of a material fact contained in any other filing,
report or other action taken with respect to the Securities Act, the Exchange Act or any other
Federal or state securities law, the listing of the Trust Units on the New York Stock Exchange or
another national securities exchange or any omission or alleged omission to state a material fact
required to be stated therein
or necessary to make the statements therein not misleading; provided, however, that ECA shall
not be liable to and shall not indemnify the Qualified Holders (other than ECA), the Trust or any
agents or controlling persons thereof, individually or as trustee, as the case may be, in any such
case under the preceding clauses (i) and (ii) of this Section 6(b) to the extent that any such
Expense arises out of, is based upon or is connected with information relating to (a) the Trust in
its individual capacity or (b) such Qualified Holder, in either case prepared or furnished by the
Trust or such Qualified Holder, as the case may be, expressly for use in any Registration
Statement, any preliminary Prospectus or any Prospectus; and provided, further, that ECA shall not
be liable to the Qualified Holders (other than ECA), the Trust or any agents or controlling persons
thereof, individually or as trustee, as the case may be, in any such case under the preceding
clause (iii) of this Section 6(b) to the extent that any such Expense arises out of, is based upon
or is connected with information relating to (a) the Trust in its individual capacity prepared or
furnished by the Trust and the Trust is found liable or (b) such Qualified Holder prepared or
furnished by such Qualified Holder and such Qualified Holder is found liable. Subject to Section
6(e) of this Agreement, ECA shall reimburse the Qualified Holders (other than ECA), the Trust and
the Trustee and any agents or controlling persons thereof for any legal or other expenses
reasonably incurred by the Qualified Holders (other than ECA), the Trust and the Trust or any agent
or controlling persons thereof in connection with the investigation or defense of any Expenses with
respect to which the Qualified Holders (other than ECA), the Trust and the Trustee or any agent or
controlling persons thereof is entitled to indemnity by ECA under this Agreement.
(c) Indemnification by Certain of the Qualified Holders. Each Qualified Holder (other than
ECA), severally and not jointly, shall indemnify and hold harmless ECA, the Trust, the Trustee and
any agents thereof, individually and as trustee, and any other Qualified Holder and each person, if
any, who controls ECA, the Trust, the Trustee and any agents thereof, individually and as trustee,
or any other Qualified Holder within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any and all Expenses to which ECA, the Trust, the
Trustee and any agents thereof, individually and as trustee, any other Qualified Holder or any
controlling person of ECA, the Trust, the Trustee and any agents thereof, individually and as
trustee, or any other Qualified Holder may become subject, under or with respect to the Securities
Act, the Exchange Act, any other federal or state securities law or otherwise, insofar as such
Expenses are caused by any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement at the date and time as of which such Registration
Statement was declared effective by the SEC, any preliminary Prospectus or the Prospectus, or
caused by any omission or alleged omission to state therein a material fact required to be stated
therein or necessary in order to make the statements therein (in the case of a preliminary
Prospectus or Prospectus, in light of the circumstances under which they were made), not
misleading, but in each case only with respect to written information relating to such Qualified
Holder (other than ECA) furnished by or on behalf of such Qualified Holder specifically for
inclusion in the documents referred to in the foregoing indemnity. Subject to Section 6(e) of this
Agreement, such Qualified Holder shall reimburse ECA, the Trust, the Trustee and any agents
thereof, individually and as trustee, the other Qualified Holders and any agents or controlling
persons thereof for any legal or other expenses reasonably incurred by ECA, the Trust, the Trustee
and any agents thereof, individually and as trustee, the other Qualified Holders or any agent or
controlling persons thereof in connection with the investigation or defense of any Expenses with
respect to which ECA, the Trust, the Trustee and
any agents thereof, individually and as trustee, and the other Qualified Holders or any agent
or controlling persons thereof is entitled to indemnity by such Qualified Holder under this
Agreement.
(d) Conduct of Indemnification Proceedings. In case any proceeding (including any
governmental investigation) shall be instituted involving any person in respect of which indemnity
may be sought pursuant to Section 6(a), 6(b) or 6(c) hereof, such person (the “Indemnified Party”)
shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying
Party”) in writing and the Indemnifying Party, upon request of the Indemnified Party, shall retain
counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party and any
others the Indemnifying Party may designate in such proceeding and shall pay the reasonable fees
and disbursements of such counsel related to such proceeding. In any such proceeding, any
Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Party unless (i) the Indemnifying Party and the
Indemnified Party shall have mutually agreed to the retention of such counsel or (ii) the named
parties to any such proceeding (including any impleaded parties) include both the Indemnifying
Party and the Indemnified Party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them, other than solely by
virtue of the rights and obligations of the Indemnifying Party and the Indemnified Party under this
Section 6. It is understood that the Indemnifying Party shall not, in respect of the legal
expenses of any Indemnified Party in connection with any proceeding or related proceedings in the
same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees and expenses shall be
reimbursed as they are incurred. Such firm shall be designated in writing by, in the case of
parties indemnified pursuant to Section 6(a), the Qualified Holders holding a majority of the
Registrable Securities covered by the Registration Statement held by Qualified Holders that are
indemnified parties pursuant to Section 6(a) and, in the case of parties indemnified pursuant to
Section 6(b) or Section 6(c), the Trust. The Indemnifying Party shall not be liable for any
settlement of any proceeding effected without its written consent, but if settled with such consent
or if there be a final, non-appealable judgment for the plaintiff, the Indemnifying Party agrees to
indemnify the Indemnified Party from and against any Expenses by reason of such settlement or
judgment. No Indemnifying Party shall, without the prior written consent of the Indemnified Party,
effect any settlement of any pending or threatened proceeding in respect of which any Indemnified
Party is or could have been a party and indemnity could have been sought hereunder by such
Indemnified Party, unless such settlement includes an unconditional release of such Indemnified
Party from all liability on claims that are the subject matter of such proceeding.
(e) Contribution. To the extent that the indemnification provided for in Section 6(a), 6(b)
or 6(c) is unavailable to an Indemnified Party or insufficient in respect of any Expenses referred
to therein, then each Indemnifying Party under such paragraph, in lieu of indemnifying such
Indemnified Party thereunder, shall contribute to the amount paid or payable by such Indemnified
Party as a result of such Expenses (i) in such proportion as is appropriate to reflect the relative
benefits received by the Indemnifying Party or Indemnifying Parties on the one hand and the
Indemnified Party or Indemnified Parties on the other hand or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also the
relative fault of the Indemnifying Party or Indemnifying Parties on the one hand and of the
Indemnified Party or Indemnified Parties on the other hand in connection with the statements or
omissions that resulted in such Expenses, as well as any other relevant equitable considerations.
The relative fault of ECA and the other Qualified Holders on the one hand and the Trust on the
other hand 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
required to be stated or necessary in order to make the statements (in the case of a preliminary
Prospectus or Prospectus, in light of the circumstances under which they were made) not misleading,
relates to information supplied by ECA, the other Qualified Holders or by the Trust, and the
parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Qualified Holders’ respective obligations to contribute pursuant
to this Section 6 are several in proportion to the respective number of Registrable Securities they
have sold pursuant to a Registration Statement, and not joint.
The parties hereto agree that it would not be just and equitable if contribution pursuant to
this Section 6(e) were determined by pro rata allocation or by any other method of allocation that
does not take into account the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Party as a result of the Expenses referred
to in the immediately preceding paragraph shall be deemed to include, subject to the limitations
set forth above, any legal or other expenses reasonably incurred by such Indemnified Party in
connection with investigating or defending any such action or claim. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(f) The remedies provided for in this Section 6 are not exclusive and shall not limit any
rights or remedies which may otherwise be available to an Indemnified Party at law or in equity,
hereunder or otherwise.
(g) The indemnity and contribution provisions contained in this Section 6 shall remain
operative and in full force and effect regardless of (i) any termination of this Agreement, (ii)
any investigation made by or on behalf of any Qualified Holder, any person controlling ECA or any
other Qualified Holder or any Affiliate of ECA or any other Qualified Holder or by or on behalf of
the Trust, its officers or directors or any person controlling the Trust and (iii) the sale of any
Registrable Securities by any Qualified Holder.
SECTION 7. Information Requirements. The Trust covenants that, if at any time before
the end of the Effective Period the Trust is not subject to the reporting requirements of the
Exchange Act, it will cooperate with any Qualified Holder and take such further reasonable action
as any Qualified Holder may reasonably request in writing (including, without limitation, making
such reasonable representations as any such Qualified Holder may reasonably request), all to the
extent required from time to time to enable such Qualified Holder to sell Registrable Securities
without registration under the Securities Act within the limitation of the exemptions provided by
Rule 144 or Rule 144A under the Securities Act and customarily taken in connection with sales
pursuant to such exemptions. Upon the written request of any Qualified Holder, the Trust shall
deliver to such Qualified Holder a written statement as to whether the Trust has complied with such
filing requirements. Notwithstanding the foregoing, nothing in this
Section 7 shall be deemed to require the Trust to register any of the Trust’s securities under
any section of the Exchange Act.
SECTION 8. Underwritten Registrations. The Qualified Holders of Registrable
Securities covered by any Registration Statement who desire to do so may sell such Registrable
Securities to an underwriter in an underwritten offering for reoffering to the public. If any of
the Registrable Securities covered by any Registration Statement are to be sold in an underwritten
offering, the investment banker or investment bankers and manager or managers that will administer
the offering will be selected by the Qualified Holders holding a majority of such Registrable
Securities included in such offering, subject to the consent of the Trust (which shall not be
unreasonably withheld or delayed), and such Qualified Holders shall be responsible for all
underwriting commissions and discounts and any transfer taxes in connection therewith. No person
may participate in any underwritten registration hereunder unless such person (i) agrees to sell
such person’s Registrable Securities on the basis reasonably provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such arrangements and (ii)
completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements
and other documents reasonably required under the terms of such underwriting arrangements.
SECTION 9. Miscellaneous.
(a) 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, without the written consent of the Trust, ECA and the
Qualified Holders holding a majority of Registrable Securities. Notwithstanding the foregoing, a
waiver or consent to depart from the provisions hereof with respect to a matter that relates
exclusively to the rights of Qualified Holders whose securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the rights of other
Qualified Holders may be given by Qualified Holders of at least a majority of the Registrable
Securities being sold by such Qualified Holders pursuant to such Registration Statement; provided
that the provisions of this sentence may not be amended, modified or supplemented except in
accordance with the provisions of the immediately preceding sentence. Notwithstanding the
foregoing, this Agreement may be amended by written agreement signed by the Trust, without the
consent of the Qualified Holders of Registrable Securities, to cure any ambiguity or to correct or
supplement any provision contained herein that may be defective or inconsistent with any other
provision contained herein, or to make such other provisions in regard to matters or questions
arising under this Agreement that shall not adversely affect the interests of the Qualified Holders
of Registrable Securities. Each Qualified Holder of Registrable Securities outstanding at the time
of any such amendment, modification, supplement, waiver or consent or thereafter shall be bound by
any such amendment, modification, supplement, waiver or consent effected pursuant to this Section
9(a), whether or not any notice, writing or marking indicating such amendment, modification,
supplement, waiver or consent appears on the Registrable Securities or is delivered to such
Qualified Holder.
(b) Notices. All notices and other communications provided for or permitted hereunder shall
be made in writing by hand delivery, by facsimile, by courier guaranteeing overnight delivery or by
first-class mail, return receipt requested, and shall be deemed given
(i) when made, if made by hand delivery, (ii) upon confirmation, if made by facsimile, (iii) one
(1) Business Day after being deposited with such courier, if made by overnight courier or (iv) on
the date indicated on the notice of receipt, if made by first-class mail, to the parties as
follows:
(i) if to a Qualified Holder other than ECA, at the most current address given by such
Qualified Holder to the Trust (initially such address being that which is included on the
signature page hereto with respect to such Qualified Holder other than ECA);
(ii) if to the Trust or the Trust, to:
ECA Marcellus Trust I
x/x Xxx Xxxx xx Xxx Xxxx Xxxxxx Trust Company, N.A.
Institutional Trust Services
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxxx
Fax: (000) 000-0000
x/x Xxx Xxxx xx Xxx Xxxx Xxxxxx Trust Company, N.A.
Institutional Trust Services
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxxx
Fax: (000) 000-0000
with a copy to:
Bracewell & Xxxxxxxx LLP
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Fax: (000) 000-0000
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Fax: (000) 000-0000
(iii) if to ECA, to:
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Fax: (000) 000-0000
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Fax: (000) 000-0000
with a copy to:
000 00xx Xxxxxx
Xxxxxxxxxx, Xxxx Xxxxxxxx 00000
Attention Xxxxxx X. Xxxxxx
Fax: (000) 000-0000
Xxxxxxxxxx, Xxxx Xxxxxxxx 00000
Attention Xxxxxx X. Xxxxxx
Fax: (000) 000-0000
Xxxxxx & Xxxxxx L.L.P.
0000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxx
Fax: (000) 000-0000
0000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxx
Fax: (000) 000-0000
or to such other address as such person may have furnished to the other persons identified in this
Section 9(b) in writing in accordance herewith.
(c) Approval of Qualified Holders. Whenever the consent or approval of Qualified Holders of a
specified percentage of Registrable Securities is required hereunder, Registrable Securities held
by Affiliates (as such term is defined in Rule 405 under the Securities Act) of the Trust (other
than ECA or subsequent Qualified Holders if such Qualified Holders are deemed to be such Affiliates
solely by reason of their holdings of such Registrable Securities) shall not be counted in
determining whether such consent or approval was given by the Qualified Holders of such required
percentage.
(d) Successors and Transferees. Any person or group of persons who purchases any Registrable
Securities from ECA or otherwise holds any Registrable Securities as a result of any sale,
liquidation, dividend or distribution by ECA or any of its Affiliates shall be deemed, for purposes
of this Agreement, to be a transferee of ECA, but if and only if such person or group (i) agrees to
be designated as a transferee, (ii) is specifically designated as a transferee in writing by ECA to
the Trust (iii) holds Registrable Securities representing at each one (1) million of the
then-outstanding Registrable Securities and (iv) in the case of a group such group shall
collectively constitute a Transferee for purposes of this Agreement (including without limitation,
for purposes of exercising any Demand Registration right transferred by ECA to such group) (a
“Transferee”). This Agreement shall inure to the benefit of and be binding upon such Transferees
and shall inure to the benefit of and be binding upon each such Transferees, provided that nothing
herein shall be deemed to permit any assignment, transfer or other disposition of Registrable
Securities in violation of the terms thereof. If ECA designates any person as a Transferee in
accordance with this Section 9(d), then the Registrable Securities acquired by such Transferee
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 and such person shall be entitled to
receive the benefits hereof.
(e) Counterparts. This Agreement may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for convenience of reference only and shall
not limit or otherwise affect the meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF DELAWARE.
(h) Severability. If any term, provision, covenant or restriction of this Agreement is held
to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants
and restrictions set forth herein shall remain in full force and effect and shall in no way be
affected, impaired or invalidated thereby, and the parties hereto shall use their reasonable best
efforts to find and employ an alternative means to achieve the same or substantially the same
result as that contemplated by such term, provision, covenant or restriction, it being
intended that all of the rights and privileges of the parties shall be enforceable to the
fullest extent permitted by law.
(i) Entire Agreement. This Agreement is intended by the parties as a final expression of
their agreement and is 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 and the
registration rights granted by the Trust with respect to the Registrable Securities. There are no
restrictions, promises, warranties or undertakings, other than those set forth or referred to
herein, with respect to the registration rights granted by the Trust with respect to the
Registrable Securities. This Agreement supersedes all prior agreements and undertakings among the
parties with respect to such registration rights. No party hereto shall have any rights, duties or
obligations other than those specifically set forth in this Agreement.
(j) Termination. This Agreement and the obligations of the parties hereunder shall terminate
upon the end of the Effective Period, except for any liabilities or obligations under Section 4, 5
or 6 hereof, each of which shall remain in effect in accordance with its terms.
(k) Specific Enforcement; Venue. The parties hereto acknowledge and agree that each would be
irreparably damaged if any of the provisions of this Agreement are not performed by the other in
accordance with their specific terms or are otherwise breached. It is accordingly agreed that each
party shall be entitled to seek an injunction or injunctions to prevent breaches of this Agreement
by the other and to enforce this Agreement and the terms and provisions hereof specifically against
the other, in addition to any other remedy to which such aggrieved party may be entitled at law or
in equity. Any action or proceeding seeking to enforce any provision of, or based on any rights
arising out of, this Agreement may be brought against any of the parties in the FEDERAL AND WEST
VIRGINIA STATE COURTS SITTING IN CHARLESTON, KANAWHA COUNTY, WEST VIRGINIA and the FEDERAL AND
TEXAS STATE COURTS SITTING IN XXXXXX, XXXXXX COUNTY, TEXAS and each of the parties consents to the
jurisdiction of such courts (and of the appropriate appellate courts) in any such action or
proceeding and waives any objection to venue laid therein. Process in any action or proceeding
referred to in the preceding sentence may be served on any party anywhere in the world.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.
| ECA MARCELLUS TRUST I |
||||
| By: | The Bank of New York Mellon Trust Company, N.A., as trustee |
|||
| By: | ||||
| Name: | ||||
| Title: | ||||
Signature Page to Registration Rights Agreement
| ENERGY CORPORATION OF AMERICA |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| By: | ||||
| Name: Xxxx Xxxx | ||||
| Address for Notice: | ||||
| By: | ||||
| Name: Xxxxx Xxxx | ||||
| Address for Notice: | ||||
Signature Page to Registration Rights Agreement
