EXECUTION VERSION
EXHIBIT 4.26
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
Dated as of March 21, 2003
among
Peabody Energy Corporation,
The Subsidiary Guarantors from time to time party hereto, and
Lehman Brothers Inc. on behalf of the Initial Purchasers
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
This Exchange and Registration Rights Agreement (this
"Agreement") is made and entered into as of March 21, 2003 by and among Peabody
Energy Corporation, a Delaware corporation (the "Company"), the Subsidiary
Guarantors (as defined herein) and Lehman Brothers Inc. on behalf of Morgan
Stanley & Co. Incorporated, Wachovia Securities, Inc., Fleet Securities, Inc.,
BMO Nesbitt Burns Corp., Credit Lyonnais Securities (USA) Inc., PNC Capital
Markets, Inc., U.S. Bancorp Piper Jaffray Inc., ABN AMRO Incorporated and Fortis
Investment Services, LLC (collectively, the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement,
dated March 14, 2003 (the "Purchase Agreement"), by and among the Company, the
Existing Subsidiary Guarantors (as defined herein) and the Initial Purchasers,
which provides for the sale by the Company to the Initial Purchasers of
$650,000,000 aggregate principal amount of the Company's 6 7/8% Senior Notes due
2013 (the "Notes"). The Notes are, and the Exchange Notes (as defined herein)
will be, guaranteed on a senior basis by the Subsidiary Guarantors (as defined
herein). In order to induce the Initial Purchasers to purchase the Notes, the
Company and the Existing Subsidiary Guarantors have agreed to provide the
registration rights set forth in this Agreement. The execution and delivery of
this Agreement is a condition to the obligations of the Initial Purchasers set
forth in Section 7 of the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms
shall have the following meanings:
Additional Subsidiary Guarantor: Any subsidiary of the Company
that executes a Guarantee under the Indenture after the date of this Agreement.
Advice: As defined in Section 6(e) hereof.
Blackout Period: As defined in Section 5(a) hereof.
Blue Sky Application: As defined in Section 8(a) hereof.
Broker-Dealer: Any broker or dealer registered under the
Exchange Act.
Closing Date: The date of this Agreement.
Commission: The U.S. Securities and Exchange Commission.
Company: As defined in the preamble hereto.
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Consummate: A Registered Exchange Offer shall be deemed
"Consummated" for purposes of this Agreement upon the occurrence of (i) the
filing and effectiveness under the Securities Act of the Exchange Offer
Registration Statement relating to the Exchange Notes to be issued in the
Exchange Offer, (ii) the maintaining of such Registration Statement continuously
effective and the keeping of the Exchange Offer open for a period not less than
the minimum period required pursuant to Section 3(b) hereof, and (iii) the
delivery by the Company to the Registrar under the Indenture of Exchange Notes
in the same aggregate principal amount as the aggregate principal amount of
Notes that were tendered by Holders thereof pursuant to the Exchange Offer.
Damages Payment Date: With respect to the Notes, each Interest
Payment Date.
Exchange Act: The U.S. Securities Exchange Act of 1934, as
amended.
Exchange Notes: The Company's 6 7/8% Senior Notes due 2013 to
be issued pursuant to the Indenture in the Exchange Offer, together with the
related Guarantees.
Exchange Offer: The registration by the Company under the
Securities Act of the Exchange Notes pursuant to a Registration Statement
pursuant to which the Company offers the Holders of all outstanding Transfer
Restricted Securities the opportunity to exchange all such outstanding Transfer
Restricted Securities held by such Holders for Exchange Notes in an aggregate
principal amount equal to the aggregate principal amount of the Transfer
Restricted Securities validly tendered in such exchange offer by such Holders.
Exchange Offer Registration Statement: The Registration
Statement relating to the Exchange Offer, including the related Prospectus.
Existing Subsidiary Guarantors: The various Subsidiary
Guarantors signatory to the Indenture as of the date hereof.
Guarantees: Guarantees by the Subsidiary Guarantors of the
Company's obligations under the Notes, the Exchange Notes and the Indenture.
Holders: As defined in Section 2(b) hereof.
Indenture: The Indenture, dated as of the date hereof, among
the Company, the Existing Subsidiary Guarantors and US Bank National
Association, as trustee (the "Trustee"), pursuant to which the Notes and the
Exchange Notes are to be issued, as such Indenture may be amended or
supplemented from time to time in accordance with the terms thereof.
Initial Purchasers: As defined in the preamble hereto.
Interest Payment Date: As defined in the Indenture and the
Notes.
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NASD: National Association of Securities Dealers, Inc.
Notes: As defined in the preamble hereto.
Person: An individual, partnership, corporation, limited
liability company, unincorporated organization, association, joint-stock
company, trust, joint venture, government or any agency or political subdivision
thereof or any other entity.
Prospectus: The prospectus included in a Registration
Statement as amended or supplemented by any prospectus supplement and by all
other amendments thereto, including post-effective amendments, and all material
incorporated by reference into such Prospectus.
Purchase Agreement: As defined in the preamble hereto.
Record Holder: With respect to any Damages Payment Date
relating to Notes, each Person who is a Holder of Notes on the record date with
respect to the Interest Payment Date on which such Damages Payment Date shall
occur.
Registration Default: As defined in Section 5(a) hereof.
Registration Statement: Any Registration Statement of the
Company relating to (a) an offering of Exchange Notes pursuant to an Exchange
Offer or (b) the registration for resale of Transfer Restricted Securities
pursuant to the Shelf Registration Statement, which is filed pursuant to the
provisions of this Agreement, in each case including the Prospectus included
therein, all amendments and supplements thereto (including post-effective
amendments) and all exhibits and material incorporated by reference therein.
Securities Act: The U.S. Securities Act of 1933, as amended.
Shelf Filing Deadline: As defined in Section 4(a) hereof.
Shelf Registration Period: As defined in Section 4(a) hereof.
Shelf Registration Statement: As defined in Section 4(a)
hereof.
Subsidiary Guarantors: The Additional Subsidiary Guarantors
and the Existing Subsidiary Guarantors.
TIA: The U.S. Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) as in effect on the date of the Indenture.
Transfer Restricted Securities: Each Note or Exchange Note
entitled to the benefits of this Agreement (including the related Guarantees),
as applicable, until the earliest to occur of (a) the date on which such Note is
exchanged by a person other than a Broker-Dealer in the Exchange Offer in
exchange for an Exchange Note, so long as such
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person is not prohibited from reselling such Exchange Notes to the public
without delivering a prospectus and the Prospectus in the Exchange Offer
Registration Statement is not sufficient for such purpose, (b) following the
exchange by a Broker-Dealer in the Exchange Offer of a Note for an Exchange
Note, the date on which that Exchange Note is sold to a purchaser who receives
from that Broker-Dealer on or prior to the date of such sale a copy of the
Prospectus contained in the Exchange Offer Registration Statement, (c) the date
on which such Note or Exchange Note has been effectively registered under the
Securities Act and disposed of in accordance with a Shelf Registration
Statement, and (d) the date on which such Note is sold by the Holder pursuant to
Rule 144 under the Securities Act or is saleable pursuant to Rule 144(k) under
the Securities Act.
Underwritten Registration or Underwritten Offering: A
registration in which securities of the Company are sold to an underwriter for
reoffering to the public.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) Transfer Restricted Securities. The securities
entitled to the benefits of this Agreement are the Transfer Restricted
Securities.
(b) Holders of Transfer Restricted Securities. A Person is
deemed to be a holder of Transfer Restricted Securities (each, a "Holder")
whenever such Person owns Transfer Restricted Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permissible
under applicable law or Commission policy (after the procedures set forth in
Section 6(a) below have been complied with), the Company and the Subsidiary
Guarantors shall (i) file with the Commission on or prior to 90 days after the
Closing Date, a Registration Statement under the Securities Act relating to the
Exchange Notes and the Exchange Offer, (ii) use their reasonable best efforts to
cause such Registration Statement to be declared effective on or prior to 180
days after the Closing Date, (iii) in connection with the foregoing, file (A)
all pre-effective amendments to such Registration Statement as may be necessary
in order to cause such Registration Statement to become effective, (B) if
applicable, a post-effective amendment to such Registration Statement pursuant
to Rule 430A under the Securities Act and (C) cause all necessary filings in
connection with the registration and qualification of the Exchange Notes to be
made under the blue sky laws of such jurisdictions as are necessary to permit
Consummation of the Exchange Offer, and (iv) upon the effectiveness of such
Registration Statement, commence the Exchange Offer. The Exchange Offer shall be
on the appropriate form permitting registration of the Exchange Notes to be
offered in exchange for the Transfer Restricted Securities and to permit resales
of Exchange Notes held by Broker-Dealers as contemplated by Section 3(c) below.
(b) The Company and the Subsidiary Guarantors shall use
their reasonable best efforts to cause the Exchange Offer Registration Statement
to be effective
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continuously and shall keep the Exchange Offer open for a period of not less
than the minimum period required under applicable U.S. federal and state
securities laws to Consummate the Exchange Offer; provided, however, that in no
event shall such period be less than 20 business days. The Company and the
Subsidiary Guarantors shall cause the Exchange Offer to comply with all
applicable U.S. federal and state securities laws. No securities other than the
Exchange Notes and the Guarantees shall be included in the Exchange Offer
Registration Statement. The Company and the Subsidiary Guarantors shall use
their reasonable best efforts to cause the Exchange Offer to be Consummated
within 30 business days after the Exchange Offer Registration Statement has
become effective.
(c) The Company and the Subsidiary Guarantors shall
indicate in a "Plan of Distribution" section of the Prospectus contained in the
Exchange Offer Registration Statement that any Broker-Dealer who holds Transfer
Restricted Securities and that were acquired for its own account as a result of
market-making activities or other trading activities (other than Transfer
Restricted Securities acquired directly from the Company or any affiliate of the
Company), may exchange such Transfer Restricted Securities pursuant to the
Exchange Offer; however, such Broker-Dealer may be deemed to be an "underwriter"
within the meaning of the Securities Act and must, therefore, deliver a
Prospectus meeting the requirements of the Securities Act in connection with any
resales of the Exchange Notes received by such Broker-Dealer in the Exchange
Offer, which Prospectus delivery requirement may be satisfied by the delivery by
such Broker-Dealer of the Prospectus contained in the Exchange Offer
Registration Statement. Such "Plan of Distribution" section shall also contain
all other information with respect to such resales by Broker-Dealers that the
Commission may require in order to permit such resales pursuant thereto, but
such "Plan of Distribution" shall not name any such Broker-Dealer or disclose
the amount of Notes held by any such Broker-Dealer except to the extent required
by the Commission.
The Company and the Subsidiary Guarantors shall use their
reasonable best efforts to keep the Exchange Offer Registration Statement
continuously effective, supplemented and amended as required by the provisions
of Section 6(c) below to the extent necessary to ensure that it is available for
resales of Exchange Notes acquired by Broker-Dealers for their own accounts as a
result of market-making activities or other trading activities, and to ensure
that it conforms with the requirements of this Agreement, the Securities Act and
the policies, rules and regulations of the Commission as announced from time to
time, for a period of at least 90 days after the Consummation of the Exchange
Offer.
The Company and the Subsidiary Guarantors shall provide
sufficient copies of the latest version of such Prospectus to Broker-Dealers
promptly upon request at any time during such 90-day period in order to
facilitate such resales.
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SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Company and the
Subsidiary Guarantors are not required to file an Exchange Offer Registration
Statement or cannot Consummate the Exchange Offer because the Exchange Offer is
not permitted by applicable U.S. law or Commission policy (after the procedures
set forth in Section 6(a) below have been complied with) or (ii) if any Holder
of Transfer Restricted Securities shall notify the Company prior to the 20th day
following the Consummation of the Exchange Offer that such Holder (A) is
prohibited by applicable U.S. law or Commission policy from participating in the
Exchange Offer, (B) may not resell the Exchange Notes acquired by it in the
Exchange Offer to the public without delivering a prospectus and the Prospectus
contained in the Exchange Offer Registration Statement is not appropriate or
available for such resales by such Holder, or (C) is a Broker-Dealer and holds
Notes acquired directly from the Company or one of its affiliates, then the
Company and the Subsidiary Guarantors shall:
(x) use their reasonable best efforts to cause to be
filed a Registration Statement pursuant to Rule 415 under the
Securities Act, which may be an amendment to the Exchange Offer
Registration Statement if permitted by the rules and regulations of the
Commission (in either event, the "Shelf Registration Statement") on or
prior to the earliest to occur of (1) the 60th day after the date on
which the Company determines that they are not required to file the
Exchange Offer Registration Statement, or permitted to Consummate the
Exchange Offer and (2) the 60th day after the date on which the Company
receives notice from a Holder of Transfer Restricted Securities as
contemplated by clause (ii) of paragraph (a) above (such earliest date
being the "Shelf Filing Deadline"), which Shelf Registration Statement
shall provide for resales of all Transfer Restricted Securities by the
Holders which shall have provided the information required pursuant to
Section 4(b) hereof; and
(y) use their reasonable best efforts to cause such Shelf
Registration Statement to be declared effective by the Commission on or
before the 180th day after the Shelf Filing Deadline.
Subject to Section 5(b), the Company and the Subsidiary Guarantors shall use
their reasonable best efforts to keep such Shelf Registration Statement
continuously effective, supplemented and amended as required by the provisions
of Sections 6(b) and (c) hereof to the extent necessary to ensure that it is
available for resales of Notes or Exchange Notes by the Holders of Transfer
Restricted Securities entitled to the benefit of this Section 4(a), and to
ensure that it conforms with the requirements of this Agreement, the Securities
Act and the policies, rules and regulations of the Commission as announced from
time to time, until the earlier of (i) two years following the Closing Date or
(ii) such shorter period that will terminate when all Notes or Exchange Notes
covered by the Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement (such earliest date being the "Shelf Registration
Period").
(b) Provision by Holders of Certain Information in
Connection with the Shelf Registration Statement. No Holder of Transfer
Restricted Securities may
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include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 10 days after receipt of a request therefor, such
information as the Company may reasonably request for use in connection with any
Shelf Registration Statement or Prospectus or preliminary Prospectus included
therein and agrees to comply with Regulation M under the Exchange Act. The
Company may exclude from such registration the Transfer Restricted Securities of
any Holder who unreasonably fails to furnish such information. No Holder of
Transfer Restricted Securities shall be entitled to Liquidated Damages pursuant
to Section 5 hereof unless and until such Holder shall have used its reasonable
best efforts to provide all such reasonably requested information or has so
complied. Each Holder as to which any Shelf Registration Statement is being
effected agrees to furnish promptly to the Company all information required to
be disclosed in order to make the information previously furnished to the
Company by such Holder not materially misleading.
SECTION 5. LIQUIDATED DAMAGES
(a) If (i) any of the Registration Statements required by
this Agreement are not filed with the Commission on or prior to the date
specified for such filing in Sections 3(a) and 4(a), as applicable, (ii) any of
such required Registration Statements have not been declared effective by the
Commission on or prior to the date specified for such effectiveness in Sections
3(a) and 4(a), as applicable, (iii) the Exchange Offer has not been Consummated
within 30 business days, or longer, if required by federal securities laws,
after the Exchange Offer Registration Statement has been declared effective, or
(iv) any Registration Statement required by this Agreement is filed and declared
effective but shall thereafter cease to be effective or fail to be usable in
connection with resales of Transfer Restricted Securities without being
succeeded immediately by a post-effective amendment to such Registration
Statement that cures such failure and that is itself immediately declared
effective (except as permitted in paragraph (b) of this Section 5, such period
of time during which any such Registration Statement is not effective or any
such Registration Statement or the related Prospectus is not usable being
referred to as a "Blackout Period") (each such event referred to in clauses (i)
through (iv), a "Registration Default"), the Company and the Subsidiary
Guarantors jointly and severally agree to pay liquidated damages ("Liquidated
Damages") to each Holder of Transfer Restricted Securities adversely affected by
such Registration Default, in an amount equal to $.05 per week per $1,000
principal amount of Transfer Restricted Securities held by such Holder with
respect to the first 90-day period immediately following the occurrence of such
Registration Default. The amount of Liquidated Damages shall increase by an
additional $.05 per week per $1,000 principal amount of Transfer Restricted
Securities with respect to each subsequent 90-day period until all Registration
Defaults have been cured, up to a maximum amount of Liquidated Damages of $.50
per week per $1,000 principal amount of Transfer Restricted Securities. All
accrued Liquidated Damages shall be paid to Record Holders by the Company and
the Subsidiary Guarantors in the same manner as interest is paid under the
Notes. Following the cure of all Registration Defaults relating to any
particular Transfer
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Restricted Securities, the accrual of Liquidated Damages with respect to such
Transfer Restricted Securities will cease. Liquidated Damages shall not accrue
under more than one of the Registration Defaults specified in clauses (i)
through (iv) above at any one time.
(b) A Registration Default referred to in Section
5(a)(iv) shall be deemed not to have occurred and be continuing in relation to a
Registration Statement or the related Prospectus if (i) the Blackout Period has
occurred solely as a result of (x) the filing of a post-effective amendment to
such Shelf Registration Statement to incorporate annual audited financial
information with respect to the Company where such post-effective amendment is
not yet effective and needs to be declared effective to permit Holders to use
the related Prospectus or (y) the occurrence of other material events with
respect to the Company or any Subsidiary Guarantor that would need to be
described in such Registration Statement or the related Prospectus and (ii) in
the case of clause (y), the Company is proceeding promptly and in good faith to
amend or supplement (including by way of filing documents under the Exchange Act
which are incorporated by reference into the Registration Statement) such
Registration Statement and the related Prospectus to describe such events;
provided, however, that in any case if such Blackout Period occurs for a
continuous period in excess of 45 days, a Registration Default shall be deemed
to have occurred on the 46th day of such Blackout Period and Liquidated Damages
shall be payable in accordance with paragraph (a) of this Section from the day
such Registration Default occurs until such Registration Default is cured or
until the Company is no longer required pursuant to this Agreement to keep such
Registration Statement effective or such Registration Statement or the related
Prospectus usable; provided, further, that in no event shall the total of all
Blackout Periods exceed 60 days in the aggregate of any 12-month period.
All payment obligations of the Company and the Subsidiary
Guarantors set forth in this section that are outstanding with respect to any
Transfer Restricted Security at the time such security ceases to be a Transfer
Restricted Security shall survive until such time as all such payment
obligations with respect to such security shall have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection
with the Exchange Offer, the Company and the Subsidiary Guarantors shall comply
with all applicable provisions of Section 6(c) below, shall use their reasonable
best efforts to effect such exchange to permit the sale of Transfer Restricted
Securities being sold in accordance with the intended method or methods of
distribution thereof, and shall comply with all of the following provisions:
(i) As a condition to its participation in the
Exchange Offer pursuant to the terms of this Agreement, each Holder of
Transfer Restricted Securities shall furnish, upon the request of the
Company, prior to the Consummation of the Exchange Offer, a written
representation to the Company
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and the Subsidiary Guarantors (which may be contained in the letter of
transmittal contemplated by the Exchange Offer Registration Statement)
to the effect that (A) it is not an affiliate of the Company, (B) it is
not engaged in, and does not intend to engage in, and has no
arrangement or understanding with any Person to participate in, a
distribution of the Exchange Notes to be issued in the Exchange Offer,
and (C) it is acquiring the Exchange Notes in its ordinary course of
business. In addition, all such Holders of Transfer Restricted
Securities shall otherwise cooperate in the Company's and the
Subsidiary Guarantors' preparations for the Exchange Offer. Each Holder
hereby acknowledges and agrees that any Broker-Dealer and any such
Holder using the Exchange Offer to participate in a distribution of the
securities to be acquired in the Exchange Offer (1) could not under
Commission policy as in effect on the date of this Agreement rely on
the position of the Commission enunciated in Exxon Capital Holdings
Corporation (available May 13, 1988) and Morgan Stanley and Co., Inc.
(available June 5, 1991), as interpreted in the Commission's letter to
Shearman & Sterling dated July 2, 1993, and similar no-action letters,
and (2) must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with a secondary
resale transaction and that such a secondary resale transaction should
be covered by an effective Registration Statement containing the
selling security holder information required by Item 507 or 508, as
applicable, of Regulation S-K if the resales are of Exchange Notes
obtained by such Holder in exchange for Notes acquired by such Holder
directly from the Company;
(ii) Prior to effectiveness of the Exchange Offer
Registration Statement, the Company and the Subsidiary Guarantors shall
state to the Commission that the Company and the Subsidiary Guarantors
are registering the Exchange Offer in reliance on the position of the
Commission enunciated in Exxon Capital Holdings Corporation (available
May 13, 1988) and Morgan Stanley and Co., Inc. (available June 5, 1991)
as interpreted in the Commission's letter to Shearman & Sterling dated
July 2, 1993, and shall represent to the Commission that neither the
Company nor any Subsidiary Guarantor has entered into any arrangement
or understanding with any Person to distribute the Exchange Notes to be
received in the Exchange Offer and that, to the best of the Company's
and each Subsidiary Guarantor's information and belief, each Holder
participating in the Exchange Offer is acquiring the Exchange Notes in
its ordinary course of business and has no arrangement or understanding
with any Person to participate in the distribution of the Exchange
Notes received in the Exchange Offer; and
(iii) Shall issue, upon the request of any Holder
of Notes covered by the Exchange Offer, Exchange Notes, having an
aggregate principal amount equal to the aggregate principal amount of
Notes surrendered to the Company by such Holder in exchange therefor;
such Exchange Notes to be registered in the name of such Holder or in
the name of the purchaser(s) of such Exchange Notes, as the case may
be; in return, the Notes held by such Holder shall be surrendered to
the Company for cancellation.
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(b) Shelf Registration Statement. In connection with the
Shelf Registration Statement, the Company and the Subsidiary Guarantors shall
comply with all the provisions of Section 6(c) below and shall use their
reasonable best efforts to effect such registration to permit the sale of the
Transfer Restricted Securities being sold in accordance with the intended method
or methods of distribution thereof, and pursuant thereto the Company and the
Subsidiary Guarantors will prepare and file with the Commission a Registration
Statement relating to the registration on any appropriate form under the
Securities Act, which form shall be available for the sale of the Transfer
Restricted Securities in accordance with the intended method or methods of
distribution thereof within the time periods and otherwise in accordance with
the provisions hereof.
(c) General Provisions. In connection with any
Registration Statement and any Prospectus required by this Agreement to permit
the sale or resale of Transfer Restricted Securities (including, without
limitation, any Registration Statement and the related Prospectus required to
permit resales of Notes and Exchange Notes by Broker-Dealers), the Company and
the Subsidiary Guarantors shall:
(i) use their reasonable best efforts to keep
such Registration Statement continuously effective and provide all
requisite financial statements of the Company for the period specified
in Sections 3 or 4 of this Agreement, as applicable; upon the
occurrence of any event that would cause any such Registration
Statement or the Prospectus contained therein (A) to contain an untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements, in the light of the circumstances in
which they were made, not misleading or (B) not to be effective and
usable for resale of Transfer Restricted Securities during the period
required by this Agreement, the Company and the Subsidiary Guarantors
shall file promptly an appropriate amendment to such Registration
Statement, in the case of clause (A), correcting any such misstatement
or omission, and, in the case of either clause (A) or (B), use their
reasonable best efforts to cause such amendment to be declared
effective and such Registration Statement and the related Prospectus to
become usable for their intended purpose(s) as soon as practicable
thereafter. Notwithstanding the foregoing, the Company and the
Subsidiary Guarantors may allow the Shelf Registration Statement to
cease to become effective and usable if (x) the board of directors of
the Company determines in good faith that it is in the best interests
of the Company not to disclose the existence of or facts surrounding
any proposed or pending material corporate transaction involving the
Company or the Subsidiary Guarantors, and the Company notifies the
Holders within two business days after such board of directors makes
such determination or (y) the Prospectus contained in the Shelf
Registration Statement contains an untrue statement of a material fact
or omits to state a material fact necessary in order to make the
statements made therein, in the light of the circumstances under which
they were made, not misleading; provided that the two-year period
referred to in Section 4(a) hereof during which the Shelf Registration
Statement is required to be effective and usable shall be extended by
the number of days during which such Registration
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Statement was not effective or usable pursuant to the foregoing
provisions; and provided further that Liquidated Damages shall accrue
on the Notes as provided in Section 5 hereof;
(ii) prepare and file with the Commission such
amendments and post-effective amendments to the applicable Registration
Statement as may be necessary to keep such Registration Statement
effective for the applicable period set forth in Sections 3 or 4
hereof, as applicable; cause the Prospectus to be supplemented by any
required Prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 under the Securities Act, and to comply fully with
the applicable provisions of Rules 424 and 430A under the Securities
Act in a timely manner; and comply with the provisions of the
Securities Act with respect to the disposition of all securities
covered by such Registration Statement during the applicable period in
accordance with the intended method or methods of distribution by the
sellers thereof set forth in such Registration Statement or supplement
to the Prospectus;
(iii) cooperate with the selling Holders of
Transfer Restricted Securities that will result in such securities no
longer being Transfer Restricted Securities and the underwriter(s), if
any, to facilitate the timely preparation and delivery of certificates
representing Transfer Restricted Securities to be sold and not bearing
any restrictive legends; and enable such Transfer Restricted Securities
to be in such denominations and registered in such names as the Holders
or the underwriter(s), if any, may request at least two business days
prior to any sale of Transfer Restricted Securities made by such
underwriter(s);
(iv) use their reasonable best efforts to cause
the Transfer Restricted Securities covered by the Registration
Statement to be registered with or approved by such other governmental
agencies or authorities as may be necessary to enable the seller or
sellers thereof or the underwriter(s), if any, to consummate the
disposition of such Transfer Restricted Securities; provided, however,
that the Company and the Subsidiary Guarantors shall not be obligated
to qualify as a foreign corporation in any jurisdiction in which it is
not now so qualified or to take any action that would subject it to
general consent to service of process, other than as to matters and
transactions relating to the Shelf Registration Statement, in any
jurisdiction where it is not now so subject;
(v) Subject to Section 6(c)(i) if any fact or
event contemplated by clause (d)(i)(D) below shall exist or have
occurred, prepare a supplement or post-effective amendment to the
Registration Statement or related Prospectus or any document
incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of Transfer
Restricted Securities, the Prospectus will not contain an untrue
statement of a material fact or omit to state any material fact
necessary to make the statements made therein, in the light of the
circumstances under which they were made, not misleading;
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(vi) provide a CUSIP, CINS or ISIN number, as
applicable, for all Transfer Restricted Securities not later than the
effective date of the applicable Registration Statement and provide the
Trustee under the Indenture with printed certificates for the Transfer
Restricted Securities which are in a form eligible for deposit with the
depositary;
(vii) 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 (including any "qualified independent
underwriter") that is required to be retained in accordance with the
rules and regulations of the NASD;
(viii) otherwise use their best efforts to comply
with all applicable rules and regulations of the Commission, and make
generally available to its security holders, as soon as practicable, a
consolidated earnings statement meeting the requirements of Rule 158
(which need not be audited) for the twelve-month period (A) commencing
at the end of any fiscal quarter in which Transfer Restricted
Securities are sold to underwriters in a firm or best efforts
Underwritten Offering or (B) if not sold to underwriters in such an
offering, beginning with the first month of the Company's first fiscal
quarter commencing after the effective date of the Registration
Statement;
(ix) cause the Indenture to be qualified under
the TIA not later than the effective date of the first Registration
Statement required by this Agreement, and, in connection therewith,
cooperate with the Trustee and the Holders of Notes and Exchange Notes
to effect such changes to the Indenture as may be reasonably required
for such Indenture to be so qualified in accordance with the terms of
the TIA; and execute, and use their best efforts to cause the Trustee
to execute, all documents that may be reasonably required to effect
such changes and all other forms and documents required to be filed
with the Commission to enable such Indenture to be so qualified in a
timely manner; and
(x) provide promptly to any Holder upon such
Holder's written request each document filed with the Commission
pursuant to the requirements of Section 13 and Section 15 of the
Exchange Act.
(d) Additional Provisions Applicable to Shelf
Registration Statements. In connection with each Shelf Registration Statement,
during the Shelf Registration Period, the Company and the Subsidiary Guarantors
shall:
(i) advise the underwriter(s), if any, and
selling Holders of Transfer Restricted Securities promptly and, if
requested by such Persons, to confirm such advice in writing, (A) when
the Prospectus or any Prospectus supplement or post-effective amendment
has been filed, and, with respect to the Shelf Registration Statement
or any post-effective amendment thereto, when the same has become
effective, (B) of any request by the Commission for amendments to the
Shelf Registration Statement or amendments or supplements
13
to the Prospectus or for additional information relating thereto, (C)
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement under the Securities Act,
of the suspension by any state securities commission of the
qualification of the Transfer Restricted Securities for offering or
sale in any jurisdiction or of the initiation of any proceeding for any
of the preceding purposes, and (D) of the existence of any fact or the
happening of any event that requires the making of any additions to or
changes in the Shelf Registration Statement or the Prospectus in order
that the Shelf Registration Statement and the Prospectus do not contain
an untrue statement of a material fact or omit to state a material fact
necessary to make the statements made therein, in the light of the
circumstances under which they were made, not misleading. If at any
time the Commission shall issue any stop order suspending the
effectiveness of the Shelf Registration Statement, or any U.S. state
securities commission or other regulatory authority shall issue an
order suspending the qualification or exemption from qualification of
the Transfer Restricted Securities under U.S. state securities or blue
sky laws, the Company and the Subsidiary Guarantors shall use their
reasonable best efforts to obtain the withdrawal or lifting of such
order at the earliest possible time;
(ii) if requested in writing, furnish to each of
the selling Holders of Transfer Restricted Securities and each of the
underwriter(s), if any, before filing with the Commission, copies of
any Shelf Registration Statement or any Prospectus included therein or
any amendments or supplements to any such Shelf Registration Statement
or Prospectus (including all documents incorporated by reference after
the initial filing of such Shelf Registration Statement), which
documents will be subject to the review of such Holders and
underwriter(s), if any, for a period of at least three business days,
and the Company and the Subsidiary Guarantors will not file any such
Shelf Registration Statement or Prospectus or any amendment or
supplement to any such Shelf Registration Statement or Prospectus
(including all such documents incorporated by reference) if a selling
Holder of Transfer Restricted Securities covered by such Shelf
Registration Statement or the underwriter(s), if any, shall reasonably
object within three business days after the receipt thereof; such
Holders and underwriter(s) shall be deemed to have reasonably objected
to such filing if such Shelf Registration Statement, amendment,
Prospectus or supplement, as applicable, as proposed to be filed,
contains an untrue statement of a material fact or omits to state any
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or fails
to comply with the applicable requirements of the Securities Act;
(iii) upon request, provide copies of any document
that is to be incorporated by reference into a Shelf Registration
Statement or Prospectus to the selling Holders and to the
underwriter(s), make the Company's and the Subsidiary Guarantors'
representatives available for discussion of such document and other
customary due diligence matters, and include such information in such
document
14
prior to the filing thereof as such selling Holders or underwriter(s),
if any, reasonably may request;
(iv) make available for inspection at reasonable
times at the Company's principal place of business by the Holders of
Transfer Restricted Securities, any underwriter participating in any
disposition pursuant to such Shelf Registration Statement, and any
attorney or accountant retained by such selling Holders or any of the
underwriter(s) who shall certify to the Company and the Subsidiary
Guarantors that they have a current intention to sell Transfer
Restricted Securities pursuant to a Shelf Registration Statement, any
such relevant financial and other records and pertinent corporate
documents of the Company and the Subsidiary Guarantors as reasonably
requested and cause the Company's and the Subsidiary Guarantors'
officers, directors and employees to respond to such inquiries as shall
be reasonably necessary, in the reasonable judgment of counsel to such
Holders, to conduct a reasonable investigation; provided, however, that
the foregoing inspection and information gathering shall be coordinated
on behalf of the selling Holders by one counsel designated by and on
behalf of such Holders and, provided, further, that each such party
shall be required to maintain in confidence and not disclose to any
other Person any information or records reasonably designated by the
Company in writing as being confidential, until such time as (A) such
information becomes a matter of public record (whether by virtue of its
inclusion in such Shelf Registration Statement or otherwise), (B) such
Person shall be required so to disclose such information pursuant to a
subpoena or order of any court or other governmental agency or body
having jurisdiction over the matter (subject to the requirements of
such order, and only after such Person shall have given the Company
prompt prior written notice of such requirement) or (C) such
information is required to be set forth in such Shelf Registration
Statement or the Prospectus included therein or in an amendment to such
Shelf Registration Statement or an amendment or supplement to such
Prospectus in order that such Shelf Registration Statement, Prospectus,
amendment or supplement, as the case may be, does not contain an untrue
statement of a material fact or omit to state therein a material fact
required to be stated therein or necessary to make the statements made
therein, in light of the circumstances under which they were made, not
misleading;
(v) if requested by any selling Holders of
Transfer Restricted Securities or the underwriter(s), if any, promptly
include in any Shelf Registration Statement or Prospectus pursuant to a
supplement or post-effective amendment if necessary, such information
as such selling Holders and underwriter(s), if any, may reasonably
request to have included therein, including, without limitation,
information relating to the "Plan of Distribution" of the Transfer
Restricted Securities information with respect to the principal amount
of Transfer Restricted Securities being sold to such underwriter(s),
the purchase price being paid therefor and any other terms of the
offering of the Transfer Restricted Securities to be sold in such
offering; and make all required filings of such Prospectus
15
supplement or post-effective amendment as soon as practicable after the
Company is notified of the matters to be included in such Prospectus
supplement or post-effective amendment; provided, however, that the
Company shall not be required to take any action pursuant to this
Section 6(d)(v) that would, in the opinion of counsel for the Company
reasonably satisfactory to the underwriters, violate applicable law;
(vi) deliver to each selling Holder of Transfer
Restricted Securities and each of the underwriter(s), if any, without
charge, as many copies of the Prospectus (including each preliminary
Prospectus) and any amendment or supplement thereto as such Persons
reasonably may request; the Company and the Subsidiary Guarantors
hereby consent to the use (in accordance with the law) of the
Prospectus and any amendment or supplement thereto by each of the
selling Holders and each of the underwriter(s), if any, in connection
with the offering and the sale of the Transfer Restricted Securities
covered by the Prospectus or any amendment or supplement thereto;
(vii) furnish to each Holder whose Transfer
Restricted Securities have been included in a Shelf Registration
Statement in connection with such exchange or sale, without charge, at
least one copy of the Registration Statement, as first filed with the
Commission, and of each amendment thereto, including all documents
incorporated by reference therein and all exhibits (including exhibits
incorporated therein by reference);
(viii) enter into an underwriting agreement on not
more than one occasion in the case of an offering pursuant to a Shelf
Registration, and make such representations and warranties, and take
all such other reasonable actions in connection therewith in order to
expedite or facilitate the disposition of the Transfer Restricted
Securities pursuant to any Shelf Registration Statement contemplated by
this Agreement, all to such extent as may be reasonably requested by
any Holder or Holders of Transfer Restricted Securities who hold at
least 25% in aggregate principal amount of such class of Transfer
Restricted Securities; provided that the Company and the Subsidiary
Guarantors shall not be required to enter into any such agreement more
than once with respect to all of the Transfer Restricted Securities and
may delay entering into such agreement if the board of directors of the
Company determines in good faith that it is in the best interests of
the Company and the Subsidiary Guarantors not to disclose the existence
of or facts surrounding any proposed or pending material corporate
transaction involving the Company and the Subsidiary Guarantors; and
whether or not an underwriting agreement is entered into and whether or
not the registration is an Underwritten Registration, the Company and
the Subsidiary Guarantors shall:
(A) furnish to the Initial Purchasers,
the Holders of Transfer Restricted Securities who hold at least 25% in
aggregate principal amount of such class of Transfer Restricted
Securities and each underwriter, if
16
any, in such substance and scope as they may reasonably request and as
are customarily made in connection with an offering of debt securities
pursuant to a Shelf Registration Statement (i) upon the effective date
of the Shelf Registration Statement (and if such Shelf Registration
Statement contemplates an Underwritten Offering of Transfer Restricted
Securities upon the date of the closing under the underwriting
agreement related thereto) and (ii) upon the filing of any amendment or
supplement to the Shelf Registration Statement or any other document
that is incorporated in the Shelf Registration Statement by reference
and includes financial data with respect to a fiscal quarter or year:
(1) a certificate, dated the date of
effectiveness of the Shelf Registration Statement signed by
(y) the respective chief executive officer, the respective
President or any Vice President and (z) the respective chief
financial officer of each of the Company and each of the
Subsidiary Guarantors which makes substantially similar
statements with respect to the Shelf Registration statement,
as of the date thereof, as the matters set forth in Section
7(m) of the Purchase Agreement and such other matters as such
parties may reasonably request;
(2) an opinion, dated the date of
effectiveness of such Shelf Registration Statement, of counsel
for the Company covering matters similar to those set forth in
Section 7(d) of the Purchase Agreement and such other matters
as such parties may reasonably request, and in any event
including a statement to the effect that such counsel has
participated in conferences with officers and other
representatives of the Company, representatives of the
independent public accountants for the Company, the
underwriters' representatives and the underwriters' counsel in
connection with the preparation of such Shelf Registration
Statement and the related Prospectus although such counsel has
not independently verified the accuracy, completeness or
fairness of such statements in such Shelf Registration
Statement; and that such counsel advises that, on the basis of
the foregoing, such counsel's work in connection with this
work did not disclose information that gave such counsel
reason to believe that the Shelf Registration Statement, at
the time such Shelf Registration Statement or any
post-effective amendment thereto became effective contained an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading, or that the
Prospectus contained in such Shelf Registration Statement as
of its date contained an untrue statement of a material fact
or omitted to state a material fact necessary in order to make
the statements made therein, in the light of the circumstances
under which they were made, not misleading. Such counsel may
state further that such counsel expresses no view with respect
to, and has not independently verified, the accuracy,
completeness or fairness of the financial statements, notes
and schedules, the financial projections and
17
other financial, statistical and accounting data included or
incorporated by reference in the Shelf Registration Statement
contemplated by this Agreement or the related Prospectus; and
(3) a customary comfort letter, dated
as of the date of effectiveness of the Shelf Registration
Statement from the Company's independent accountants, in the
customary form and covering matters of the type customarily
covered in comfort letters to underwriters in connection with
underwritten offerings, and affirming the matters set forth in
the comfort letters delivered pursuant to Sections 7(j) and
7(k) of the Purchase Agreement;
(B) set forth in full or incorporate by
reference in the underwriting agreement, if any, the indemnification
provisions and procedures of Section 8 hereof with respect to all
parties to be indemnified pursuant to said Section; and
(C) deliver such other documents and
certificates as may be reasonably requested by such parties to evidence
compliance with clause (A) above and with any customary conditions
contained in the underwriting agreement or other agreement entered into
by the Company and the Subsidiary Guarantors pursuant to this clause
(viii), if any.
(ix) prior to any public offering of Transfer
Restricted Securities cooperate with the selling Holders of Transfer
Restricted Securities the underwriter(s), if any, and their respective
counsel in connection with the registration and qualification of the
Transfer Restricted Securities under the securities or blue sky laws of
such jurisdictions as the selling Holders of Transfer Restricted
Securities or underwriter(s) may reasonably request and do any and all
other acts or things necessary or advisable to enable the disposition
in such jurisdictions of the Transfer Restricted Securities covered by
the Shelf Registration Statement filed pursuant to Section 4 hereof;
provided, however, that the Company and the Subsidiary Guarantors shall
not be obligated to qualify as a foreign corporation in any
jurisdiction in which it is not now so qualified or to take any action
that would subject it to general consent to service of process, other
than as to matters and transactions relating to the Shelf Registration
Statement, in any jurisdiction where it is not now so subject.
(e) Each Holder agrees by acquisition of a Transfer
Restricted Security that, upon receipt of any notice from the Company of the
existence of any fact of the kind described in Section 6(d)(i) hereof, such
Holder will forthwith discontinue disposition of Transfer Restricted Securities
pursuant to the Shelf Registration Statement until such Holder's receipt of the
copies of the supplemented or amended Prospectus contemplated by Section
6(d)(vi) hereof, or until it is advised in writing (the "Advice") by the Company
that the use of the Prospectus may be resumed, and has received copies of any
additional or supplemental filings that are incorporated by reference in the
18
Prospectus. If so directed by the Company, each Holder will deliver to the
Company (at the Company's expense) all copies, other than permanent file copies
then in such Holder's possession, of the Prospectus covering such Transfer
Restricted Securities that was current at the time of receipt of such notice. In
the event the Company shall give any such notice, the time period regarding the
effectiveness of such Shelf Registration Statement set forth in Section 4
hereof, as applicable, shall be extended by the number of days during the period
from and including the date of the giving of such notice pursuant to Section
6(d)(i) hereof to and including the date when each selling Holder covered by
such Shelf Registration Statement shall have received the copies of the
supplemented or amended Prospectus contemplated by Section 6(d)(vi) hereof or
shall have received the Advice.
(f) The Company and the Subsidiary Guarantors may require
each Holder of Transfer Restricted Securities as to which any registration is
being effected to furnish to the Company such information regarding such Holder
and such Holder's intended method of distribution of the applicable Transfer
Restricted Securities as the Company may from time to time reasonably request in
writing, but only to the extent that such information is required in order to
comply with the Securities Act. Each such Holder agrees to notify the Company as
promptly as practicable of (i) any inaccuracy or change in information
previously furnished by such Holder to the Company or (ii) the occurrence of any
event, in either case, as a result of which any Prospectus relating to such
registration contains or would contain an untrue statement of a material fact
regarding such Holder or such Holder's intended method of distribution of the
applicable Transfer Restricted Securities or omits to state any material fact
regarding such Holder or such Holder's intended method of distribution of the
applicable Transfer Restricted Securities required to be stated therein or
necessary to make the statements made therein, in the light of the circumstances
under which they were made, not misleading and promptly to furnish to the
Company any additional information required to correct and update any previously
furnished information or required so that such Prospectus shall not contain,
with respect to such Holder or the distribution of the applicable Transfer
Restricted Securities an 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.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's and the
Subsidiary Guarantors' performance of or compliance with this Agreement will be
borne by the Company regardless of whether a Registration Statement becomes
effective, including without limitation and as applicable: (i) all Commission,
securities exchange or NASD registration and filing fees and expenses (including
filings made by any underwriters or Holder with the NASD (and, if applicable,
the fees and expenses of any "qualified independent underwriter" and its counsel
that may be required by the rules and regulations of the NASD)); (ii) all fees
and expenses of compliance with U.S. federal securities and state blue sky or
securities laws and compliance with the rules of the NASD (including reasonable
fees and disbursements of one counsel for Holders in connection with blue sky
and/or NASD qualification of the Exchange Notes); (iii) all
19
expenses of printing (including printing certificates for the Exchange Notes to
be issued in the Exchange Offer and printing of Prospectuses), messenger and
delivery services; (iv) all fees and disbursements of counsel for the Company
and the Subsidiary Guarantors; and (v) all fees and disbursements of independent
certified public accountants of the Company (including the expenses of any
special audit and comfort letters required by or incident to such performance).
The Company will, in any event, bear their and the Subsidiary
Guarantors' internal expenses (including, without limitation, all salaries and
expenses of its officers and employees performing legal or accounting duties),
the expenses of any annual audit and the fees and expenses of any Person,
including special experts, retained by the Company or the Subsidiary Guarantors.
(b) Each Holder of Transfer Restricted Securities will
pay all underwriting discounts, if any, and commissions and transfer taxes, if
any, relating to the disposition of such Holder's Transfer Restricted
Securities.
SECTION 8. INDEMNIFICATION
(a) The Company and each Subsidiary Guarantor shall,
jointly and severally, indemnify and hold harmless each Holder of Transfer
Restricted Securities, its officers and employees and each Person, if any, who
controls any such Holders, within the meaning of the Securities Act, from and
against any loss, claim, damage or liability, joint or several, or any action in
respect thereof (including, but not limited to, any loss, claim, damage,
liability or action relating to purchases, sales and registration of the Notes,
the Guarantees and the Exchange Notes), to which that Holder, officer, employee
or controlling Person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon (i) any untrue statement or alleged untrue statement of a material
fact contained (A) in any Registration Statement or preliminary Prospectus or
Prospectus or in any amendment or supplement thereto, (B) in any Blue Sky
Application (as defined below) or other document prepared or executed by any
Company or any Subsidiary Guarantor (or based upon any written information
furnished by any Company or any Subsidiary Guarantor) specifically for the
purpose of qualifying any or all of the Notes under the securities laws of any
state or other jurisdiction (any such application, document or information being
hereinafter called a "Blue Sky Application") or (C) in any materials or
information provided to investors by, or with the approval of, the Company in
connection with the marketing of the offering of the Exchange Notes ("Marketing
Materials"), including any roadshow or investor presentations made to investors
by the Company (whether in person or electronically); (ii) the omission or
alleged omission to state in any Registration Statement, preliminary Prospectus
or Prospectus, or in any amendment or supplement thereto, or in any Blue Sky
Application or Marketing Materials any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; or (iii) any act or
failure to act or any alleged act or failure to act by any Holder of Transfer
Restricted Securities in connection with, or relating in any manner to, the
Notes, the Guarantees or the Exchange
20
Notes or the offering contemplated by any Registration Statement, and which is
included as part of or referred to in any loss, claim, damage, liability or
action arising out of or based upon matters covered by clause (i) or (ii) above
(provided that the Company and the Subsidiary Guarantors shall not be liable
under this clause (iii) to the extent that it is determined in a final judgment
by a court of competent jurisdiction that such loss, claim, damage, liability or
action resulted directly from any such acts or failures to act undertaken or
omitted to be taken by such Holder through its gross negligence or willful
misconduct); and shall reimburse each Holder and each such officer, employee or
controlling Person promptly upon demand for any legal or other expenses
reasonably incurred by that Holder, officer, employee or controlling Person in
connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company and the Subsidiary Guarantors shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made in any
Registration Statement, preliminary Prospectus or Prospectus, or in any such
amendment or supplement, or in any Blue Sky Application or Marketing Materials,
in reliance upon and in conformity with written information concerning such
Holder furnished to the Company by or on behalf of any Holder specifically for
inclusion therein; provided, further, that with respect to any such untrue
statement or omission made in any preliminary Prospectus or Prospectus, the
indemnity agreement contained in this Section 8(a) shall not inure to the
benefit of the Holder from whom the Person asserting any such losses, claims,
damages or liabilities purchased the Notes, Guarantees or Exchange Notes
concerned if, to the extent that such sale was a sale by the Holder and any such
loss, claim, damage or liability of such Holder is a result of the fact that
both (A) a copy of the Prospectus (or the Prospectus as then amended or
supplemented) was not sent or given to such Person at or prior to written
confirmation of the sale of such Notes or Exchange Notes to such Person and (B)
the untrue statement or omission in the preliminary Prospectus or Prospectus was
corrected in the Prospectus (or the Prospectus as then amended or supplemented)
unless such failure to deliver the Prospectus was a result of noncompliance by
the Company with Section 6(d)(vi) hereof. The foregoing indemnity agreement is
in addition to any liability which the Company and the Subsidiary Guarantors may
otherwise have to any Holder or to any officer, employee or controlling Person
of that Holder.
(b) Each Holder, severally and not jointly, shall
indemnify and hold harmless each of the Company, each of the Subsidiary
Guarantors, their respective directors, officers and employees, and each Person,
if any, who controls either of the Company or any of the Subsidiary Guarantors
within the meaning of the Securities Act, from and against any loss, claim,
damage or liability, joint or several, or any action in respect thereof, to
which the Company, the Subsidiary Guarantors or any such director, officer or
controlling Person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon (i) any untrue statement or alleged untrue statement of a material
fact contained (A) in any Registration Statement, preliminary Prospectus or
Prospectus, or in any amendment or
21
supplement thereto or (B) in any Blue Sky Application or (ii) the omission or
alleged omission to state in any Registration Statement, preliminary Prospectus
or Prospectus, or in any amendment or supplement thereto, or in any Blue Sky
Application any material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information concerning such
Holders furnished to the Company by or on behalf of that Holder specifically for
inclusion therein, which information consists of the information specified in
Section 8(e) of the Purchase Agreement, and shall reimburse the Company, each of
the Subsidiary Guarantors and each such director, officer, employee and
controlling Person for any legal or other expenses reasonably incurred by the
Company, each such Subsidiary Guarantor or each such director, officer, employee
or controlling Person in connection with investigating or defending or preparing
to defend against any such loss, claim, damage, liability or action as such
expenses are incurred. The foregoing indemnity agreement is in addition to any
liability which any Holder may otherwise have to the Company, any of the
Subsidiary Guarantors or any such director, officer, employee or controlling
Person.
(c) Promptly after receipt by an indemnified party under
this Section 8 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 8 except to the extent it has
been materially prejudiced by such failure and; provided, further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 8.
If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, any
indemnified party shall have the right to employ separate counsel in any such
action and to participate in the defense thereof but the fees and expenses of
such counsel shall be at the expense of the indemnified party unless (i) the
employment of such counsel has been specifically authorized by the indemnifying
party in writing, or (ii) such indemnified party shall have been advised by such
counsel that there may be one or more legal defenses available to it which are
different from or additional to those available to the indemnifying party and in
the reasonable judgment of such counsel it is advisable for such indemnified
party to employ separate counsel or (iii) the indemnifying party has failed to
assume the defense
22
of such action and employ counsel reasonably satisfactory to the indemnified
party, in which case, if such indemnified party notifies the indemnifying party
in writing that it elects to employ separate counsel at the expense of the
indemnifying party, the indemnifying party shall not, in connection with any one
such action or separate but substantially similar or related actions arising out
of the same general allegations or circumstances, be liable for the reasonable
fees and expenses of more than one separate firm of attorneys (in addition to
local counsel) at any time for all such indemnified parties, which firm shall be
designated in writing by (x) Lehman Brothers Inc. if the indemnified parties
under this Section 8 consist of the Initial Purchasers or any of their
respective officers, employees or controlling Persons or (y) by the Company, if
the indemnified parties under this Section 8 consist of any of the Company, any
of the Subsidiary Guarantors or any of their respective directors, officers,
employees or controlling Persons. No indemnifying party shall (i) without the
prior written consent of the indemnified parties (which consent shall not be
unreasonably withheld), settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding or (ii) be liable for any
settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with the consent of
the indemnifying party or if there is a final judgment of the plaintiff in any
such action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
(d) If the indemnification provided for in this Section 8
shall for any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 8(a) or 8(b) in respect of any loss, claim,
damage or liability, or any action in respect thereof, referred to therein, then
each indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company and the Subsidiary Guarantors, on the one hand, and the
Holders on the other, from the sale of the Transfer Restricted Securities 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 Company and the Subsidiary Guarantors, on the one hand and the Holders on
the other hand, with respect to the statements or omissions which resulted in
such loss, claim, damage or liability, or action in respect thereof, as well as
any other relevant equitable considerations. The relative fault shall be
determined by reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or any of the Subsidiary Guarantors, on
the one hand, or the Holders, on the other hand, the intent of the parties and
their relative knowledge, access to information
23
and opportunity to correct or prevent such statement or omission. The amount
paid or payable by a party as a result of the loss, claim, damage or liability
referred to above shall be deemed to include any legal or other fees or expenses
reasonably incurred by such party in connection with investigating or defending
any action or claim. The Company, the Subsidiary Guarantors and the Holders
agree that it would not be just and equitable if contributions pursuant to this
Section 8(d) were to be determined by pro rata allocation (even if the Holders
were treated as one entity for such purpose) or by any other method of
allocation which does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, damage or liability, or action in respect thereof,
referred to above in this Section shall be deemed to include, for purposes of
this Section 8(d), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 8(d), no Holder shall
be required to contribute any amount in excess of the amount by which the net
proceeds received by it in connection with its sale of Notes exceeds the amount
of any damages which such Holder has otherwise paid or become liable to pay by
reason of the 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 entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation. The Holders'
obligations to contribute as provided in this Section 8(d) are several and not
joint.
SECTION 9. RULE 144A
The Company and each Subsidiary Guarantor hereby agrees with
each Holder of Transfer Restricted Securities, during any period in which the
Company or such Subsidiary Guarantor is not subject to Section 13 or 15(d) of
the Exchange Act within the two-year period following the Closing Date, to make
available upon request of any Holder to such Holder or beneficial owner of
Transfer Restricted Securities, in connection with any sale thereof and any
prospective purchaser of such Transfer Restricted Securities from such Holder or
beneficial owner, the information required by Rule 144A(d)(4) under the
Securities Act in order to permit resales of such Transfer Restricted Securities
pursuant to Rule 144A.
SECTION 10. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration
hereunder unless such Holder (a) agrees to sell such Holder's Transfer
Restricted 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 reasonable questionnaires, powers of attorney,
indemnities, underwriting agreements, lock-up letters and other documents
required under the terms of such underwriting arrangements.
24
SECTION 11. SELECTION OF UNDERWRITERS
Subject to Section 6(d)(i), the Holders of Transfer Restricted
Securities covered by the Shelf Registration Statement who desire to do so may
sell such Transfer Restricted Securities in an Underwritten Offering at such
Holders' expense. In any such Underwritten Offering, the investment banker or
investment bankers and manager or managers that will administer the offering
will be selected by the Holders of a majority in aggregate principal amount of
the Transfer Restricted Securities included in such offering; provided that such
investment bankers and managers must be reasonably satisfactory to the Company.
SECTION 12. MISCELLANEOUS
(a) Remedies. The Company and the Subsidiary Guarantors
agree that monetary damages (including Liquidated Damages) would not be adequate
compensation for any loss incurred by reason of a breach by it of Sections 3 and
4 of this Agreement and hereby agree to waive the defense in any action for
specific performance of Sections 3 and 4 that a remedy at law would be adequate.
(b) No Inconsistent Agreements. Neither the Company nor
any Subsidiary Guarantor will, on or after the date of this Agreement, enter
into any agreement with respect to its securities that is inconsistent with the
rights granted to the Holders in this Agreement or otherwise conflicts with the
provisions hereof. Except as disclosed in the Offering Memorandum (as such term
is defined in the Purchase Agreement), neither the Company nor any Subsidiary
Guarantor has previously entered into any agreement granting any registration
rights with respect to its securities to any Person. 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 or any Subsidiary Guarantor's
securities under any agreement in effect on the date hereof.
(c) Adjustments Affecting the Notes. The Company and the
Subsidiary Guarantors will not take any action, or permit any change to occur,
with respect to the Notes that would materially and adversely affect the ability
of the Holders to Consummate any Exchange Offer.
(d) Amendments and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented, and waivers or consents
to or departures from the provisions hereof may not be given unless the Company
have obtained the written consent of Holders of a majority of the outstanding
principal amount of the Transfer Restricted Securities affected by such
amendment, modification, supplement, waiver or consent. Notwithstanding the
foregoing, a waiver or consent to departure from the provisions hereof that
relates exclusively to the rights of Holders whose securities are being tendered
pursuant to the Exchange Offer and that does not affect directly or indirectly
the rights of other Holders whose securities are not being tendered pursuant to
such Exchange Offer may be given by the Holders of a majority of the outstanding
principal amount of Transfer Restricted Securities being tendered or registered.
25
(e) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by hand-delivery,
first-class mail (registered or certified, return receipt requested), telex,
facsimile or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on
the records of the Registrar under the Indenture, with a copy to the
Registrar under the Indenture; and
(ii) if to the Company or the Subsidiary
Guarantors to:
Peabody Energy Corporation
701 Market Street
St. Louis, Missouri 63101
Attention: Chief Executive Officer
Fax: (314) 342-7597
with a copy to:
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
Attention: Rise B. Norman, Esq.
Fax: (212) 455-2502
Any such notices and communications shall take effect at the
time of receipt thereof. The Company shall be entitled to act and rely upon any
notice or communication given or made by the Initial Purchasers.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the Trustee at
the address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders; provided, however, that this Agreement shall not
inure to the benefit of or be binding upon a successor or assign of a Holder
unless and to the extent such successor or assign acquired Transfer Restricted
Securities in accordance with the terms of the Indenture from such Holder.
(g) 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.
26
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED, IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW
YORK.
(j) Severability. In the event that any one or more of
the provisions contained herein, or the application thereof in any circumstance,
is held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement together with the
other Operative Documents (as defined in the Purchase 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. 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
Company and the Subsidiary Guarantors with respect to the Transfer Restricted
Securities. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
(Signature pages follow.)
27
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
Very truly yours,
PEABODY ENERGY CORPORATION
By:_________________________________________
Name:
Title:
AFFINITY MINING COMPANY
ARID OPERATIONS INC.
BEAVER DAM COAL COMPANY
BIG RIDGE, INC.
BIG SKY COAL COMPANY
BLACK WALNUT COAL COMPANY
BLUEGRASS COAL COMPANY
CABALLO COAL COMPANY
CHARLES COAL COMPANY
CLEATON COAL COMPANY
COAL PROPERTIES CORP.
COOK MOUNTAIN COAL COMPANY
COTTONWOOD LAND COMPANY
CYPRUS CREEK LAND COMPANY
CYPRUS CREEK LAND RESOURCES,
LLC
EACC CAMPS, INC.
EASTERN ASSOCIATED COAL CORP.
EASTERN ROYALTY CORP.
GALLO FINANCE COMPANY
GOLD FIELDS CHILE, S.A.
GOLD FIELDS MINING CORPORATION
GOLD FIELDS OPERATING CO.-ORTIZ
GRAND EAGLE MINING, INC.
HAYDEN GULCH TERMINAL, INC.
HIGHLAND MINING COMPANY
HILLSIDE MINING COMPANY
INDEPENDENCE MATERIAL
HANDLING COMPANY
INTERIOR HOLDINGS CORP.
JAMES RIVER COAL TERMINAL
COMPANY
JARRELL'S BRANCH COAL COMPANY
SIGNATURE PAGES TO REGISTRATION RIGHTS AGREEMENT
JUNIPER COAL COMPANY
KAYENTA MOBILE HOME PARK, INC.
LOGAN FORK COAL COMPANY
MARTINKA COAL COMPANY
MIDCO SUPPLY AND EQUIPMENT
CORPORATION
MOUNTAIN VIEW COAL COMPANY
MUSTANG ENERGY COMPANY, L.L.C.
NORTH PAGE COAL CORP.
OHIO COUNTY COAL COMPANY
PEABODY AMERICA, INC.
PEABODY ARCHVEYOR, L.L.C.
PEABODY COALSALES COMPANY
PEABODY COALTRADE, INC.
PEABODY COAL COMPANY
PEABODY DEVELOPMENT COMPANY
PEABODY DEVELOPMENT LAND
HOLDINGS, LLC
PEABODY ENERGY GENERATION
HOLDING COMPANY
PEABODY ENERGY INVESTMENTS,
INC.
PEABODY ENERGY SOLUTIONS, INC.
PEABODY HOLDING COMPANY, INC.
PEABODY NATURAL GAS, LLC
PEABODY RECREATIONAL LANDS,
L.L.C.
PEABODY SOUTHWESTERN COAL
COMPANY
PEABODY TERMINALS, INC.
PEABODY VENEZUELA COAL CORP.
PEABODY-WATERSIDE
DEVELOPMENT, L.L.C.
PEABODY WESTERN COAL COMPANY
PINE RIDGE COAL COMPANY
POND CREEK LAND RESOURCES, LLC
POND RIVER LAND COMPANY
PORCUPINE PRODUCTION, LLC
PORCUPINE TRANSPORTATION, LLC
POWDER RIVER COAL COMPANY
PRAIRIE STATE GENERATING
COMPANY, LLC
RIO ESCONDIDO COAL CORP.
RIVER'S EDGE MINING, INC.
RIVERVIEW TERMINAL COMPANY
SIGNATURE PAGES TO REGISTRATION RIGHTS AGREEMENT
SENECA COAL COMPANY
SENTRY MINING COMPANY
SNOWBERRY LAND COMPANY
STAR LAKE ENERGY COMPANY,
L.L.C.
STERLING SMOKELESS COAL
COMPANY
THOROUGHBRED, L.L.C.
THOROUGHBRED GENERATING
COMPANY, LLC
THOROUGHBRED MINING COMPANY,
L.L.C.
YANKEETOWN DOCK CORPORATION
By:_________________________________________
Name: Steven F. Schaab
Title: Vice President
COLONY BAY COAL COMPANY
By: Eastern Associated Coal Corp., its
general partner
By:________________________________
Name: Steven F. Schaab
Title: Vice President
By: Charles Coal Company, its general
partner
By:________________________________
Name: Steven F. Schaab
Title: Vice President
SIGNATURE PAGES TO REGISTRATION RIGHTS AGREEMENT
PATRIOT COAL COMPANY, L.P.
By: Bluegrass Coal Company, its managing
partner
By:________________________________
Name: Steven F. Schaab
Title: Vice President
PEABODY NATURAL RESOURCES
COMPANY
By: Gold Fields Mining Corporation, its
general partner
By:________________________________
Name: Steven F. Schaab
Title: Vice President
By: Peabody America, Inc., its general
partner
By:_________________________________________
Name: Steven F. Schaab
Title: Vice President
SIGNATURE PAGES TO REGISTRATION RIGHTS AGREEMENT
Accepted on behalf of the Initial Purchasers:
LEHMAN BROTHERS INC.
By:________________________________
Name:
Title:
SIGNATURE PAGES TO REGISTRATION RIGHTS AGREEMENT