EXHIBIT 4.4
REGISTRATION RIGHTS AGREEMENT
DATED AS OF
__, 2005
BY AND AMONG
INTERNATIONAL COAL GROUP, INC.
AND
THE HOLDERS IDENTIFIED HEREIN
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of __,
2005, is made by and among International Coal Group, Inc., a Delaware
corporation (formerly known as ICG Holdco, Inc.) (the "Company"), and the
Holders listed on Schedule A hereto, as such schedule may be updated from time
to time.
RECITALS
A. In connection with the consummation of the business combination between
the Company and Anker Coal Group, Inc. ("Anker") pursuant to the Business
Combination Agreement among the Company, ICG, Inc. (formerly known as
International Coal Group, Inc.), ICG Merger Sub, Inc., Anker Merger Sub, Inc.
and Anker dated as of March 31, 2005, the Holders that are stockholders of Anker
will each be issued shares of the common stock ("Common Stock") of the Company,
the exact amount of which will be indicated on Schedule A hereof.
B. In connection with the consummation of the business combination between
the Company and CoalQuest Development LLC ("CoalQuest") pursuant to the Business
Combination Agreement among the Company, ICG, Inc., CoalQuest Merger Sub, LLC,
CoalQuest and its members dated as of March 31, 2005, the Holders that are
members of CoalQuest will each be issued shares of Common Stock of the Company,
the exact amount of which will be indicated on Schedule A hereof (all such
shares of Common Stock, together with the shares of Common Stock to be issued to
stockholders of Anker, the "Holder Shares").
C. Pursuant to the terms of both such Business Combination Agreements, the
Company agreed to enter into this Agreement.
AGREEMENTS
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements contained herein, and intending to be legally bound hereby, the
parties hereto hereby agree as follows:
Article I. Definitions and Certain Interpretative Matters
1.1 Definitions. For purposes of this Agreement, the following terms have
the following meanings:
(a) "Advice": As defined in Section 3.3.
(b) "Affiliate": As defined in Rule 12b-2 under the Exchange Act.
(c) "Agreement": As defined in the introductory paragraph hereof.
(d) "Business Day": Any day, other than a Saturday or Sunday, on
which national banking institutions in New York, New York, are open.
(e) "Common Stock": As defined in Recital A.
(f) "Company": As defined in the introductory paragraph hereof.
(g) "Exchange Act": The Securities Exchange Act of 1934, as amended.
(h) "Founding Holders" Holders who have rights to participate in a
registration of the Company's securities and each of such Person's Affiliates,
if such Affiliate becomes the owner of the registrable securities and has become
a party to the Registration Rights Agreement among WLR Recovery Fund II, L.P.,
Contrarian Capital Management LLC, Varde Partners, Inc., Greenlight Capital,
Inc., ▇▇▇▇▇ Trading, ▇▇▇▇▇▇▇ International Coal Holdings Inc. and the Company,
dated as of April [-], 2005.
(i) "Holders": The holders of Common Stock listed on the signature
pages and/or Schedule A hereto and (i) any Person to whom any of such holders
transfers all of the Holders Shares owned by such Holder or (ii) any Person to
whom any of such holders transfers any Holder Shares and who is entitled to the
rights of the Holder hereunder in accordance with Section 7.3 hereof.
(j) "Holder Shares": As defined in Recital B.
(k) "Indemnified Party": As defined in Section 4.3.
(l) "Indemnifying Party": As defined in Section 4.3.
(m) "Initial Public Offering": The Company's first Public Offering.
(n) "Losses": As defined in Section 4.1.
(o) "NYSE": The New York Stock Exchange
(p) "Other Holders" Any Person having rights to participate in a
registration of the Company's securities.
(q) "Person": Any individual, corporation, general or limited
partnership, limited liability company, joint venture, trust or other entity or
association, including without limitation any governmental authority.
(r) "Piggyback Notice": As defined in Section 2.1.
(s) "Piggyback Registration": As defined in Section 2.1.
(t) "Prospectus": The prospectus included in the applicable
Registration Statement, as supplemented by any and all prospectus supplements
and as amended by any and all amendments (including post-effective amendments)
and including all material incorporated by reference or deemed to be
incorporated by reference in such prospectus.
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(u) "Public Offering": means any primary public offering of Common
Stock by the Company pursuant to an effective Registration Statement under the
Securities Act, other than pursuant to a registration statement in Form S-4 or
S-8 or any successor or similar form.
(v) "Registrable Securities": (i) the Holder Shares and (ii) any
securities paid, issued or distributed in respect of any such shares by way of
stock dividend, stock split or distribution, or in connection with a combination
of shares, recapitalization, reorganization, merger or consolidation, or
otherwise; provided, however, that as to any Registrable Securities, such
securities will irrevocably cease to constitute "Registrable Securities" upon
the earliest to occur of: (A) the date on which the securities are disposed of
pursuant to an effective registration statement under the Securities Act; (B)
the date on which the securities are distributed to the public pursuant to Rule
144 (or any successor provision) under the Securities Act; (C) the date on which
the securities may be freely sold publicly without either registration under the
Securities Act or compliance with any restrictions, including without limitation
restrictions as to volume or manner of sales, under Rule 144(k) (or any
successor provision); (D) the date on which the securities have been transferred
to any Person other than a Holder; or (E) the date on which the securities cease
to be outstanding.
(w) "Registration Expenses": As defined in Section 3.4.
(x) "Registration Statement": Any registration statement of the
Company under the Securities Act that covers any of the Registrable Securities
pursuant to the provisions of this Agreement, including the related Prospectus,
all amendments and supplements to such registration statement (including
post-effective amendments), and all exhibits and all materials incorporated by
reference or deemed to be incorporated by reference in such registration
statement.
(y) "Rule 144": Rule 144 promulgated 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.
(z) "SEC": The Securities and Exchange Commission.
(aa) "Securities Act": The Securities Act of 1933, as amended.
(bb) "Underwritten Registration" or "Underwritten Offering": A
registration in which securities of the Company are sold to an underwriter for
reoffering to the public.
(cc) Certain Interpretative Matters. Unless the context otherwise
requires, (a) all references to Articles or Sections are to Articles or Sections
of this Agreement, (b) each term defined in this Agreement has the meaning
assigned to it, (c) all uses of "herein," "hereto," "hereof" and words similar
thereto in this Agreement refer to this Agreement in its entirety, and not
solely to the Article, Section or provision in which it appears, (d) "or" is
disjunctive but not necessarily exclusive, and (e) words in the singular include
the plural and vice versa. Unless otherwise specified, the use of the term "day"
will be deemed to be a calendar day and not a Business Day.
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Article II. Piggyback Registration
2.1 Right to Piggyback. If at any time, and from time to time, the Company
proposes to file a registration statement under the Securities Act with respect
to an offering of any class of equity securities (other than a registration
statement (a) relating to its Initial Public Offering, (b) on Form S-4, Form S-8
or any successor forms thereto or (c) filed solely in connection with an
offering made solely to existing stockholders or employees of the Company),
whether or not for its own account, then the Company will give written notice
(the "Piggyback Notice") of such proposed filing to the Holders at least 45 days
before the anticipated filing date. Such notice will offer the Holders the
opportunity to register such amount of Registrable Securities as each Holder may
request on the same terms and conditions as the registration of the Company's or
Other Holders' securities, as the case may be (a "Piggyback Registration"). The
Company will include in each Piggyback Registration all Registrable Securities
for which the Company has received written requests for inclusion within 15 days
after delivery of the Piggyback Notice, subject to Section 2.2.
2.2 Priority on Piggyback Registrations. If the Piggyback Registration is
an Underwritten Offering, the Company will cause the managing underwriter of
that proposed offering to permit the Holders that have requested Registrable
Securities to be included in the Piggyback Registration to include all such
Registrable Securities on the same terms and conditions as any similar
securities, if any, of the Company. Notwithstanding the foregoing, if the
managing underwriter or underwriters of such Underwritten Offering advises the
Company and the selling Holders that, in its good faith determination, the total
amount of securities that the Company, such Holders and any Other Holders
propose to include in such offering is such as to materially and adversely
affect the success of such Underwritten Offering, then:
(a) if such Piggyback Registration is a primary registration by the
Company for its own account, the Company will include in such Piggyback
Registration: (i) first, all securities to be offered by the Company; (ii)
second, up to the full amount of securities requested to be included in such
Piggyback Registration by the Holders and the Founding Holders allocated pro
rata among such Holders and Founding Holders, on the basis of the amount of
securities requested to be included therein by each such Holder or Founding
Holders; and (iii) third, up to the full amount of securities requested to be
included in such Piggyback Registration by any Other Holders (other than the
Founding Holders) in accordance with the priorities, if any, then existing among
the Company and such Other Holders so that the total amount of securities to be
included in such Underwritten Offering is the full amount that, in the opinion
of such managing underwriter, can be sold without materially and adversely
affecting the success of such Underwritten Offering; and
(b) if such Piggyback Registration is an underwritten secondary
registration for the account of holders of securities of the Company, the
Company will include in such registration: (i) first, all securities of the
Persons exercising "demand" registration rights requested to be included
therein; (ii) second, up to the full amount of securities proposed to be
included in the registration by the Company; (iii) third, up to the full amount
of securities requested to be included in such Piggyback Registration by the
Holders and the Founding Holders allocated pro rata among such Holders and
Founding Holders, on the basis of the amount of securities requested to be
included therein by each such Holder or Founding Holders;
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and (iv) fourth, up to the full amount of securities requested to be included in
such Piggyback Registration by the Founding Holders (other than the Founding
Holders) in accordance with the priorities, if any, then existing among the
Company and such Founding Holders so that the total amount of securities to be
included in such Underwritten Offering is the full amount that, in the written
opinion of such managing underwriter, can be sold without materially and
adversely affecting the success of such Underwritten Offering.
(c) If so requested (pursuant to a timely written notice) by the
managing underwriter in any Underwritten Offering, the Holders participating in
such Underwritten Offering will agree not to effect any public sale or
distribution (or any other type of sale as the managing underwriter reasonably
determines is necessary in order to effect the Underwritten Offering) of any
such Registrable Securities, including a sale pursuant to Rule 144 (but
excluding any Registrable Securities included in such Underwritten Offering),
during the 10 days prior to, and during the 90 days (or such additional period
as the managing underwriter reasonably determines is necessary in order to
effect the Underwritten Offering) following, the closing date of such
Underwritten Offering; provided that each Holder participating in such
Underwritten Offering is subject to the same restrictions (other than with
respect to any shares included in such offering). In the event of such a
request, the Company may impose, during such period, appropriate stop-transfer
instructions with respect to the Registrable Securities subject to such
restrictions. Notwithstanding anything to the contrary set forth herein, if the
Company or the underwriters shall release any Registrable Securities or any
other securities (the "Released Securities") held by any Holder (the "Released
Holder") from the requirements of this Section 2.2(c) (or the equivalent
restrictions to which such Holders are subject) before the end of the period set
by the Company or the underwriters, then a number of Registrable Securities held
by each other Holder shall be released from the provisions of this Section
2.2(c) in the same proportion as the number of Released Securities bear to the
total number of Registrable Securities and other securities held by such
Released Holder which were subject to this Section 2.2(c).
2.3 Withdrawal of Piggyback Registration.
(a) If at any time after giving the Piggyback Notice and prior to
the effective date of the Registration Statement filed in connection with the
Piggyback Registration, the Company determines for any reason not to register or
to delay the Piggyback Registration, the Company may, at its election, give
written notice of its determination to all Holders, and (i) in the case of a
determination not to register, will be relieved of its obligation to register
any Registrable Securities in connection with the abandoned Piggyback
Registration, without prejudice, and (ii) in the case of a determination to
delay the Piggyback Registration, will be permitted to delay the registration
for a period not exceeding 180 days.
(b) Any Holder of Registrable Securities requesting to be included
in a Piggyback Registration may withdraw its request for inclusion by giving
written notice to the Company of its intention to withdraw from that
registration, provided, however, (i) the Holder's request must be made in
writing, in the case of an Underwritten Registration, at least five Business
Days prior to the anticipated effective date of the Registration Statement, or
if the registration is not an Underwritten Registration, at least five Business
Days prior to the anticipated filing date of the Registration Statement covering
the Piggyback Registration, and
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(ii) the withdrawal will be irrevocable and, after making the withdrawal, a
Holder will no longer have any right to include its Registrable Securities in
that Piggyback Registration.
(c) The Company shall be deemed to have satisfied its obligations to
any Holder under this Article II with respect to any particular Piggyback
Registration notwithstanding an election to withdraw under this Section 2.3.
Article III. Procedures and Expenses
3.1 Registration Procedures. In connection with the Company's registration
obligations pursuant to Article II, the Company will effect such registrations
to permit the sale of Registrable Securities by a Holder in accordance with the
intended method or methods of disposition thereof, and pursuant thereto the
Company will as promptly as reasonably practicable:
(a) prepare and file with the SEC a Registration Statement on an
appropriate form under the Securities Act available for the sale of the
Registrable Securities by the selling Holders in accordance with the intended
method or methods of distribution thereof; provided, however, that the Company
will, before filing, furnish to each selling Holder and the managing
underwriter, if any, copies of the Registration Statement or Prospectus proposed
to be filed;
(b) prepare and file with the SEC any amendments and post-effective
amendments to the Registration Statement as may be necessary and any supplements
to the Prospectus as may be required, in the opinion of the Company and its
counsel, by the rules, regulations or instructions applicable to the
registration form used by the Company or by the Securities Act or rules and
regulations thereunder to keep the Registration Statement effective until the
earlier of (i) all Registrable Securities covered by the Registration Statement
are sold in accordance with the intended plan of distribution set forth in the
Registration Statement or supplement to the Prospectus or (ii)(x) at any time
following the first anniversary of the Effective Date and on or before the fifth
anniversary of the date of this Agreement, 180 days following the first day of
effectiveness of such Registration Statement and (y) at any time following the
fifth anniversary of the date of this Agreement, 90 days following the first day
of effectiveness of such Registration Statement;
(c) promptly following its actual knowledge thereof, notify the
selling Holders and the managing underwriter, if any,
(i) when a Prospectus or any Prospectus supplement or
amendment has been filed and, with respect to a Registration Statement or
any post-effective amendment, when the Registration Statement has become
effective,
(ii) of any request by the SEC or any other governmental
authority for amendments or supplements to a Registration Statement or
related Prospectus or for additional information,
(iii) of the issuance by the SEC or any other governmental
authority of any stop order suspending the effectiveness of a Registration
Statement or the initiation of any proceedings for that purpose,
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(iv) of the receipt by the Company of any written 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 any event which makes any statement
made in the Registration Statement or Prospectus untrue in any material
respect or which requires the making of any changes in a Registration
Statement or Prospectus or other documents so that it will 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
(vi) of the Company's reasonable determination that a
post-effective amendment to a Registration Statement would be appropriate;
(d) use its reasonable best 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, at the earliest
practicable date;
(e) furnish to each selling Holder and the managing underwriter, if
any, at least one conformed copy of the Registration Statement and any
post-effective amendment thereto, including financial statements (but excluding
all schedules, all documents incorporated or deemed incorporated therein by
reference and all exhibits);
(f) prior to any public offering of Registrable Securities, register
or qualify or cooperate with the selling Holders, the managing underwriter, if
any, and their respective counsel 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 the selling Holders or the
managing underwriter reasonably request in writing and maintain each
registration or qualification (or exemption therefrom) effective during the
period such Registration Statement is required to be kept effective; provided,
however, the Company will not be required to qualify generally to do business in
any jurisdiction in which it is not then so qualified or take any action which
would subject it to general service of process or taxation in any jurisdiction
in which it is not then so subject;
(g) as promptly as practicable upon the occurrence of any event
contemplated by Section 3.1(c)(v) or 3.1(c)(vi) hereof, prepare a supplement or
post-effective amendment to each Registration Statement or a supplement to the
related Prospectus, or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Securities being sold thereunder,
such Prospectus will not contain an 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;
(h) in the case of an Underwritten Offering, enter into customary
and reasonable agreements (including an underwriting agreement) and take all
other actions
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reasonably necessary or desirable to expedite or facilitate the disposition of
the Registrable Securities, and in connection therewith:
(i) use its reasonable best efforts to obtain opinions of
counsel to the Company and updates thereof (which counsel and opinions (in
form, scope and substance) are reasonably satisfactory to the managing
underwriter, if any, and each selling Holder) addressed to each selling
Holder and the managing underwriter covering the matters customarily
covered in opinions requested in Underwritten Offerings and such other
matters as may be reasonably requested by any selling Holder or any
underwriter, and
(ii) use its reasonable best efforts to obtain "comfort"
letters and updates thereof from the independent certified public
accountants of the Company addressed to the each selling Holder and the
managing underwriter covering the matters customarily covered in "comfort"
letters in connection with Underwritten Offerings;
(i) upon reasonable notice and at reasonable times during normal
business hours, make available for inspection by a representative of each
selling Holder and any underwriter participating in any disposition of
Registrable Securities and any attorney or accountant retained by any selling
Holder or any underwriter, all financial and other records, pertinent corporate
documents and properties of the Company, and cause the officers, directors and
employees of the Company to supply all information reasonably requested by any
such representative, underwriter, attorney or accountant in connection with the
Registration Statement; and
(j) use its reasonable best efforts to comply with all applicable
rules and regulations of the SEC relating to such registration and make
generally available to its security holders earning statements satisfying the
provisions of Section 11(a) of the Securities Act, provided that the Company
will be deemed to have complied with this Section 3.1(h) if it has satisfied the
provisions of Rule 158 under the Securities Act (or any similar rule promulgated
under the Securities Act).
3.2 Information from Holders.
(a) The Company may require each selling Holder that has requested
inclusion of its Registrable Securities in any Registration Statement to furnish
to the Company such information regarding such Holder and its plan and method of
distribution of such Registrable Securities as the Company may, from time to
time, reasonably request in writing. The Company may refuse to proceed with the
registration of such Holder's Registrable Securities if such Holder unreasonably
fails to furnish such information within a reasonable time after receiving such
request.
(b) Each selling Holder will as expeditiously as possible (i) notify
the Company of the occurrence of any event that makes any statement made in a
Registration Statement or Prospectus regarding such selling Holder untrue in any
material respect or that requires the making of any changes in a Registration
Statement or Prospectus so that, in such regard, it will not contain any untrue
statement of a material fact or omit any material fact
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required to be stated therein or necessary to make the statements not misleading
and (ii) provide the Company with such information as may be required to enable
the Company to prepare a supplement or post-effective amendment to any such
Registration Statement or a supplement to such Prospectus.
(c) With respect to any Registration Statement for an Underwritten
Offering, the inclusion of a Holder's Registrable Securities therein will be
conditioned upon such Holder's participation in such Underwritten Offering and
the execution and delivery by such Holder of an underwriting agreement in form,
scope and substance as is customary in Underwritten Offerings.
3.3 Suspension of Disposition.
(a) Each selling Holder will be deemed to have agreed that, upon
receipt of any notice from the Company of the occurrence of any event of the
kind described in Section 3.1(c)(ii), 3.1(c)(iii), 3.1(c)(iv), 3.1(c)(v) or
3.1(c)(vi), such Holder will discontinue disposition of Registrable Securities
covered by a Registration Statement or Prospectus until such Holder's receipt of
the copies of the supplemented or amended Prospectus contemplated by Section
3.1(g) or until it is advised in writing (the "Advice") by the Company that the
use of the applicable Prospectus may be resumed and has received copies of any
additional or supplemental filings that are incorporated or deemed to be
incorporated by reference in such Prospectus.
3.4 Registration Expenses.
(a) All fees and expenses incurred by the Company in complying with
Article II and Section 3.1 ("Registration Expenses") will be borne by the
Company. These fees and expenses will 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 National Association of
Securities Dealers, Inc. and (y) of compliance with securities or blue sky laws
(including without limitation reasonable fees and disbursements of counsel for
the underwriters and selling Holders in connection with blue sky qualifications
of the Registrable Securities and determination of the eligibility of the
Registrable Securities for investment under the laws of such jurisdictions as
the managing underwriter or underwriters, if any, or the selling Holders may
designate)), (ii) printing expenses (including without limitation the expenses
of printing certificates for securities in a form eligible for deposit with The
Depository Trust Company and of printing Prospectuses if the printing of
Prospectuses is requested by the selling Holders), (iii) fees and disbursements
of counsel for the Company, (iv) reasonable fees and disbursements (not to
exceed $50,000) of one counsel for all selling Holders collectively (which
counsel will be selected by the Holders holding a majority of the securities
sought to be included in the Registration Statement), (v) fees and disbursements
of all independent certified public accountants referred to in Section
3.1(h)(ii) (including the expenses of any special audit and "comfort" letters
required by or incident to such performance), and (vi) fees and expenses of all
other Persons retained by the Company. In addition, the Company will pay its
internal expenses (including without limitation all salaries and expenses of its
officers and employees performing legal or accounting duties), the expense of
any annual audit, and the fees and expenses incurred in connection with the
listing of the securities to be registered on each securities exchange, if any,
on which similar securities issued by the Company are then listed or the
quotation of such securities on NYSE if similar securities issued by the Company
are then quoted on NYSE.
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(b) Notwithstanding anything contained herein to the contrary, (i)
all costs and fees of counsel (except as specifically set forth in Section
3.4(a)) and experts retained by the selling Holders and (ii) all underwriting
fees, discounts, selling commissions and stock transfer taxes applicable to the
sale of Registrable Securities will be borne by the Holder owning such
Registrable Securities.
(c) Notwithstanding anything contained herein to the contrary, each
selling Holder may have its own separate counsel in connection with the
registration of any of its Registrable Securities, which counsel may participate
therein to the full extent provided herein; provided, however, that all fees and
expenses of such separate counsel will be paid for by such selling Holder.
Article IV. Indemnification
4.1 Indemnification by the Company. The Company will indemnify and hold
harmless, to the fullest extent permitted by law, each Holder owning Registrable
Securities registered pursuant to this Agreement, its officers, directors,
agents and employees, each Person who controls such Holder (within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act) and the
officers, directors, owners, agents and employees of any such controlling
Person, from and against all losses, claims, damages, liabilities, costs
(including without limitation reasonable attorneys' fees and disbursements) and
expenses (collectively, "Losses") arising out of or based upon any untrue or
alleged untrue statement of a material fact contained or incorporated by
reference in any Registration Statement, Prospectus or preliminary prospectus,
or arising out of or based upon any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as the same are based solely
upon information furnished in writing to the Company by or on behalf of such
Holder expressly for use therein; provided, however, that the Company will not
be liable to any Holder to the extent that any Losses arise out of or are based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in any preliminary prospectus if either (i) (A) such Holder failed
to send or deliver a copy of the Prospectus with or prior to the delivery of
written confirmation of the sale by such Holder of a Registrable Security to the
Person asserting the claim from which such Losses arise and (B) the Prospectus
would have corrected such untrue statement or alleged untrue statement or such
omission or alleged omission or (ii) the untrue statement or alleged untrue
statement or omission or alleged omission is corrected in an amendment or
supplement to the Prospectus previously furnished by or on behalf of the
Company, if the Holder was furnished with copies of the Prospectus as so amended
or supplemented and the Holder thereafter failed to deliver such Prospectus as
so amended or supplemented prior to or concurrently with the sale of a
Registrable Security to the Person asserting the claim from which such Losses
arise.
4.2 Indemnification by Holders. Each Holder (severally and not jointly)
will indemnify and hold harmless, to the fullest extent permitted by law, the
Company, its officers, directors, agents and employees, each Person who controls
the Company (within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act), and the directors, officers, owners, agents and
employees of any such controlling Person, from and against all Losses, as
incurred, arising out of or based upon any untrue or alleged untrue statement of
a material fact contained or incorporated by reference in any Registration
Statement, Prospectus or preliminary
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prospectus, or arising out of or based upon any omission or alleged omission of
a material fact required to be stated therein or necessary to make the
statements therein not misleading, to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with information so
furnished in writing by or on behalf of such Holder to the Company expressly for
use in such Registration Statement, Prospectus or preliminary prospectus. In no
event will the liability of any Holder be greater in amount than the dollar
amount of the net proceeds received by such Holder upon the sale of the
Registrable Securities giving rise to such indemnification obligation.
4.3 Conduct of Indemnification Proceedings. If any Person becomes entitled
to indemnity hereunder (an "Indemnified Party"), such Indemnified Party will
give prompt notice to the party from which indemnity is sought (the
"Indemnifying Party") of any claim or of the commencement of any action or
proceeding with respect to which the Indemnified Party seeks indemnification or
contribution pursuant hereto; provided, however, that the failure to so notify
the Indemnifying Party will not relieve the Indemnifying Party from any
obligation or liability except to the extent that the Indemnifying Party has
been prejudiced materially by such failure. If such an action or proceeding is
brought against the Indemnified Party, the Indemnifying Party will be entitled
to participate therein and, to the extent it may elect by written notice
delivered to the Indemnified Party promptly after receiving the notice referred
to in the immediately preceding sentence, to assume the defense thereof with
counsel reasonably satisfactory to the Indemnified Party. Notwithstanding the
foregoing, the Indemnified Party will have the right to employ its own counsel
in any such case, but the fees and expenses of that counsel will be at the
expense of the Indemnified Party unless (i) the employment of the counsel has
been authorized in writing by the Indemnifying Party, (ii) the Indemnifying
Party has not employed counsel (reasonably satisfactory to the Indemnified
Party) to take charge of such action or proceeding within a reasonable time
after notice of commencement thereof, or (iii) the Indemnified Party reasonably
concludes, based upon the opinion of counsel, that there may be defenses or
actions available to it which are different from or in addition to those
available to the Indemnifying Party which, if the Indemnifying Party and the
Indemnified Party were to be represented by the same counsel, could result in a
conflict of interest for such counsel or materially prejudice the prosecution of
defenses or actions available to the Indemnified Party. If any of the events
specified in clause (i), (ii) or (iii) of the immediately preceding sentence are
applicable, then the reasonable fees and expenses of separate counsel for the
Indemnified Party will be borne by the Indemnifying Party; provided, however,
that in no event will the Indemnifying Party be liable for the fees and expenses
of more than one separate firm for all Indemnified Parties. If, in any case, the
Indemnified Party employs separate counsel, the Indemnifying Party will not have
the right to direct the defense of the action or proceeding on behalf of the
Indemnified Party. All fees and expenses required to be paid to the Indemnified
Party pursuant to this Article IV will be paid periodically during the course of
the investigation or defense, as and when reasonably itemized bills therefor are
delivered to the Indemnifying Party in respect of any particular Loss that is
incurred. Notwithstanding anything contained in this Section 4.3 to the
contrary, an Indemnifying Party will not be liable for the settlement of any
action or proceeding effected without its prior written consent. The
Indemnifying Party will not, without the consent of the Indemnified Party (which
consent will not be unreasonably withheld), consent to entry of any judgment or
enter into any settlement or otherwise seek to terminate any action or
proceeding in which any Indemnified Party is or could be a party and as to which
indemnification or contribution could be sought by such Indemnified Party under
this Article IV, unless such
11
judgment, settlement or other termination provides solely for the payment of
money and includes as an unconditional term thereof the giving by the claimant
or plaintiff to such Indemnified Party of a release, in form and substance
reasonably satisfactory to the Indemnified Party, from all liability in respect
of such claim or litigation for which such Indemnified Party would be entitled
to indemnification hereunder.
4.4 Contribution, etc.
(a) If the indemnification provided for in this Article IV is
unavailable to an Indemnified Party under Section 4.1 or 4.2 in respect of any
Losses or is insufficient to hold the Indemnified Party harmless, then each
applicable Indemnifying Party (severally and not jointly), in lieu of
indemnifying the Indemnified Party, will contribute to the amount paid or
payable by the Indemnified Party as a result of the Losses, in such proportion
as is appropriate to reflect the relative fault of the Indemnifying Party or
Indemnifying Parties, on the one hand, and the Indemnified Party, on the other
hand, in connection with the actions, statements or omissions that resulted in
the Losses as well as any other relevant equitable considerations. The relative
fault of the Indemnifying Party or Indemnifying Parties, on the one hand, and
the Indemnified Party, on the other hand, will be determined by reference to,
among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission of a
material fact, has been taken or made by, or related to information supplied by,
the Indemnifying Party or Indemnifying Parties or the Indemnified Party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such action, statement or omission. The amount paid or
payable by a party as a result of any Losses will be deemed to include any legal
or other fees or expenses incurred by such party in connection with any action
or proceeding.
(b) The parties hereto agree that it would not be just and equitable
if contribution pursuant to this Section 4.4 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.
Notwithstanding anything contained in this Section 4.4 to the contrary, an
Indemnifying Party that is a selling Holder will not be required to contribute
any amount in excess of the amount by which the total price at which the
Registrable Securities were sold by the selling Holder to the public exceeds the
amount of any damages which such selling Holder has, in the aggregate, otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) will be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
Article V. Rule 144
Upon consummation of a Public Offering, the Company will file all reports
required to be filed by it under the Securities Act and the Exchange Act and
will cooperate with any Holder to the extent required from time to time to
enable such Holder to sell its Registrable Securities without registration under
the Securities Act within the limitations of the exemptions provided by Rule 144
(or any successor provision). Upon the request of any Holder, the Company will
deliver to such Holder a written statement as to whether it has complied with
such filing requirements. Notwithstanding the foregoing, nothing in this Article
V will require the
12
Company to register any securities, or file any reports, under the Exchange Act
if such registration or filing is not required under the Exchange Act.
Article VI. Participation in Underwritten Offerings
Notwithstanding anything contained herein to the contrary, no Person may
participate in any Underwritten Offering pursuant to a registration hereunder
unless that Person (a) agrees to sell its securities on the basis provided in
any underwriting arrangements approved by the Persons entitled hereunder to
approve such arrangements (provided that such arrangements treat all Holders on
an equal and pari passu basis) and (b) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements.
Article VII. Miscellaneous
7.1 Notices. All notices, requests, claims, demands and other
communications hereunder will be in writing and will be given or made by
delivery in person, by overnight courier, by facsimile transmission, by
electronic transmission or by registered or certified mail (postage prepaid,
return receipt requested) to the respective parties at the following addresses
(or at such other address for a party specified in a notice given in accordance
with this Section 7.1):
(a) If to the Company:
International Coal Group, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
with a copy to:
▇▇▇▇▇ Day
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: 212-755-7306
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
(b) If to a Holder, to such Holder's address on file with the
Company's transfer agent.
All such notices and communications will be deemed to have been delivered or
given upon receipt, if delivered personally, by electronic transmission or by
overnight courier; when receipt is acknowledged, if sent by facsimile
transmission and three Business Days after being deposited in the mail, if
mailed.
7.2 Confidentiality. Each Holder will, and will cause its officers,
directors, employees, legal counsel, accountants, financial advisors and other
representatives to, hold in confidence any material nonpublic information
received by them pursuant to this Agreement,
13
including without limitation any material nonpublic information included in any
Registration Statement or Prospectus proposed to be filed with the SEC or
provided pursuant to Section 3.1(i). This Section 7.2 shall not apply to any
information which (a) is or becomes generally available to the public, (b) was
already in the Holder's possession from a non-confidential source prior to its
disclosure by the Company, or (c) is or becomes available to the Holder on a
non-confidential basis from a source other than the Company, provided that such
source is not known by the Holder to be bound by confidentiality obligations.
7.3 Assignment. None of the parties to this Agreement may assign or
delegate any of its rights or obligations under this Agreement without the prior
written consent of each of the other parties hereto. Notwithstanding the
foregoing, the rights of a Holder hereunder may be assigned by a Holder to any
transferee or assignee of Registrable Securities which is a member of such
Holder's immediate family or a trust for the benefit of an individual Holder or
a family member of such Holder that acquires at least five percent (5%) of the
number of Holder Shares initially held by such Holder hereunder (or all of the
remaining Registratrable Securities held by such Holder) (as adjusted for stock
splits, stock dividends, reverse stock splits, stock combinations or other
similar capitalization changes); provided, however, the transferor shall furnish
to the Company written notice of the name and address of such transferee or
assignee and the securities with respect to which such registration rights are
being assigned and such transferee shall furnish to the Company its agreement in
writing to be subject to all obligations of a Holder set forth in this
Agreement..
7.4 No Third-Party Beneficiaries. Except as expressly set forth herein,
this Agreement will be binding upon and inure solely to the benefit of the
parties hereto and their respective successors and permitted assigns and nothing
herein, express or implied, is intended to or will confer upon any other Person
any legal or equitable right, benefit or remedy of any nature whatsoever under
or by reason of this Agreement.
7.5 Entire Agreement. This Agreement constitutes the entire agreement of
the parties hereto with respect to the subject matter hereof and supersedes all
prior agreements and undertakings, both written and oral, among the parties with
respect to the subject matter hereof.
7.6 Amendment and Waiver. This Agreement may not be amended or modified or
any provision hereof waived except by an instrument in writing signed by all of
the parties to this Agreement.
7.7 Counterparts. This Agreement may be executed by facsimile signature
and in any number of counterparts, each such counterpart to be deemed an
original and all such counterparts, taken together, to constitute one
instrument.
7.8 Severability. If any term or other provision of this Agreement is
invalid, illegal or unenforceable under any law or public policy, all other
terms and provisions of this Agreement will nevertheless remain in full force
and effect. Upon a determination that any term or other provision is invalid,
illegal or unenforceable, the parties hereto will endeavor in good faith to
replace the invalid, illegal or unenforceable provisions with valid, legal and
enforceable provisions the effect of which comes as close as possible to that of
the invalid, illegal or unenforceable provisions.
14
7.9 Governing Law. This Agreement will be governed by, and construed in
accordance with, the laws of the State of New York, without giving effect to the
principles of conflict of laws thereof.
7.10 Specific Performance. The parties hereto agree that irreparable
damage would occur in the event any provision of this Agreement was not
performed in accordance with the terms hereof and that the parties will be
entitled to specify performance of the terms hereof, in addition to any other
remedy at law or equity.
7.11 Further Assurances. The parties hereto will do such further acts and
things necessary to ensure that the terms of this Agreement are carried out and
observed.
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15
IN WITNESS WHEREOF, each of the parties has executed this Agreement as of
the date first written above.
INTERNATIONAL COAL GROUP, INC.
By:________________________________________
Name:
Title:
HOLDERS:
________________
By:________________________________________
Name:
Title:
________________
By:________________________________________
Name:
Title:
________________
By:________________________________________
Name:
Title:
Schedule A
