REGISTRATION RIGHTS AGREEMENT DATED AS OF JUNE 29, 2007
Exhibit
10.32
DATED
AS OF JUNE 29, 2007
TABLE
OF CONTENTS
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Page
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Article
I DEFINITIONS
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1
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Section
1.01
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Definitions.
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3
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Section
1.02
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Registrable
Securities.
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3
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Article
II REGISTRATION RIGHTS
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3
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Section
2.01
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Registration.
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3
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Section
2.02
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Piggyback
Rights.
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6
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Section
2.03
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Underwritten
Offering.
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7
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Section
2.04
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Sale
Procedures.
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8
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Section
2.05
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Cooperation
by Holders.
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12
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Section
2.06
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Restrictions
on Public Sale by Holders of Registrable Securities.
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12
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Section
2.07
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Expenses.
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12
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Section
2.08
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Indemnification.
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13
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Section
2.09
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Rule
144 Reporting.
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15
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Section
2.10
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Transfer
or Assignment of Registration Rights.
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15
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Section
2.11
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Limitation
on Subsequent Registration Rights.
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16
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Article
III MISCELLANEOUS
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16
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Section
3.01
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Communications.
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16
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Section
3.02
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Successor
and Assigns.
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16
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Section
3.03
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Aggregation
of Purchased Class D Units and Purchased Units.
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16
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Section
3.04
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Recapitalization,
Exchanges, Etc. Affecting the Units.
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16
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Section
3.05
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Change
of Control
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17
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Section
3.06
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Specific
Performance.
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17
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Section
3.07
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Counterparts.
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17
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Section
3.08
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Headings.
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17
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Section
3.09
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Governing
Law.
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17
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Section
3.10
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Severability
of Provisions.
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17
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Section
3.11
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Entire
Agreement.
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17
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Section
3.12
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Amendment.
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17
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Section
3.13
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No
Presumption.
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18
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Section
3.14
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Obligations
Limited to Parties to Agreement.
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18
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THIS
REGISTRATION RIGHTS AGREEMENT (this “Agreement”)
is
made and entered into as of June 29, 2007 by and among Atlas Energy Resources,
LLC, a Delaware limited liability company (“Atlas
Energy”),
and
each of the Purchasers set forth in Exhibit
A
(each, a
“Purchaser”
and,
collectively, the “Purchasers”).
WHEREAS,
this Agreement is made in connection with the Closing of the issuance and sale
of the Purchased Class D Units and the Purchased Units pursuant to the Class
D
Unit and Common Unit Purchase Agreement, dated as of May 18, 2007, by and among
Atlas Energy and the Purchasers (the “Purchase
Agreement”);
WHEREAS,
Atlas Energy has agreed to provide the registration and other rights set forth
in this Agreement for the benefit of the Purchasers pursuant to the Purchase
Agreement; and
WHEREAS,
it is a condition to the obligations of each Purchaser and Atlas Energy under
the Purchase Agreement that this Agreement be executed and
delivered.
NOW
THEREFORE, in consideration of the mutual covenants and agreements set forth
herein and for good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged by each party hereto, the parties hereby agree
as
follows:
ARTICLE I
DEFINITIONS
Section
1.01 Definitions.
Capitalized terms used herein without definition shall have the meanings given
to them in the Purchase Agreement. The terms set forth below are used
herein as so defined:
“Agreement”
has
the
meaning specified therefor in the introductory paragraph.
“Atlas
Energy”
has
the
meaning specified therefor in the introductory paragraph.
“Effectiveness
Period”
has
the
meaning specified therefor in Section
2.01(a)(i)
of this
Agreement.
“File
Date”
has
the
meaning specified therefor in Section
2.01(a)(i)
of this
Agreement.
“Holder”
means
the record holder of any Registrable Securities.
“Included
Registrable Securities”
has
the
meaning specified therefor in Section
2.02(a)
of this
Agreement.
“Liquidated
Damages”
has
the
meaning specified therefor in Section
2.01(a)(ii)
of this
Agreement.
“Liquidated
Damages Multiplier”
means
the product of $25.00 times the number of Class D Units and Purchased Units
purchased by such Purchaser.
“Losses”
has
the
meaning specified therefor in Section
2.08
of this
Agreement.
“Managing
Underwriter”
means,
with respect to any Underwritten Offering, the book-running lead manager of
such
Underwritten Offering.
“Opt
Out Notice”
has
the
meaning specified therefor in Section
2.02(a)
of this
Agreement.
“Purchase
Agreement”
has
the
meaning specified therefor in the recitals of this Agreement.
“Purchaser”
and
“Purchasers”
have
the meanings specified therefor in the introductory paragraph of this
Agreement.
“Purchaser
Underwriter Registration Statement”
has
the
meaning specified therefor in Section
2.04(n)
of this
Agreement.
“Registrable
Securities”
means:
(i) the Purchased Units, (ii) Purchased Class D Units, (iii) the
Common Units issuable upon conversion of the Purchased Class D Units, (iii) any
Common Units or Class D Units issued as Liquidated Damages pursuant to this
Agreement, (iv) any Common Units issuable upon conversion of Class D Units
issued as Liquidated Damages pursuant to this Agreement, (v) any Common Units
or
Class D Units issuable pursuant to Section 5.02 of the Purchase Agreement,
and
(vi) any Common Units issuable upon conversion of Class D Units issuable
pursuant to Section 5.02 of the Purchase Agreement, all of which Registrable
Securities are subject to the rights provided herein until such rights terminate
pursuant to the provisions hereof.
“Registration
Expenses”
has
the
meaning specified therefor in Section
2.07(a)
of this
Agreement.
“Registration
Statement”
has
the
meaning specified therefor in Section
2.01(a)(i)
of this
Agreement.
“Selling
Expenses”
has
the
meaning specified therefor in Section
2.07(a)
of this
Agreement.
“Selling
Holder”
means
a
Holder who is selling Registrable Securities pursuant to a registration
statement.
“Target
Effective Date”
has
the
meaning specified therefor in Section
2.01(a)(i)
of this
Agreement.
“Underwritten
Offering”
means
an offering (including an offering pursuant to a Registration Statement) in
which Units are sold to an underwriter on a firm commitment basis for reoffering
to the public or an offering that is a “bought deal” with one or more investment
banks.
2
Section
1.02 Registrable
Securities.
Any Registrable Security will cease to be a Registrable Security when: (a)
a
registration statement covering such Registrable Security is effective and
such
Registrable Security has been sold or disposed of pursuant to such effective
registration statement; (b) such Registrable Security has been disposed of
pursuant to any section of Rule 144 (or any similar provision then in force)
under the Securities Act; (c) two years after the Closing Date; (d) such
Registrable Security is held by Atlas Energy or one of its Subsidiaries; or
(e)
such Registrable Security has been sold in a private transaction in which the
transferor’s rights under this Agreement are not assigned to the transferee of
such securities.
ARTICLE
II
REGISTRATION
RIGHTS
Section
2.01 Registration.
(a) Registration.
(i) Deadline
To File and Go Effective.
As soon as practicable following January 1, 2008, but in any event prior to
January 31, 2008 (the “File
Date”),
Atlas
Energy shall prepare and file a registration statement under the Securities
Act
to permit the resale of the Registrable Securities from time to time, including
as permitted by Rule 415 under the Securities Act (or any similar provision
then
in force), with respect to all of the Registrable Securities (the “Registration
Statement”).
Atlas Energy shall use its commercially reasonable efforts to cause the
Registration Statement to become effective no later than May 30, 2008 (the
“Target
Effective Date”).
A Registration Statement filed pursuant to this Section
2.01
shall be
on Form S-3 under the Securities Act. Atlas Energy will use its
commercially reasonable efforts to cause the Registration Statement filed
pursuant to this Section
2.01
to be
continuously effective under the Securities Act until the earlier of (i) the
date as of which all such Registrable Securities are sold by the Purchasers
and
(ii) two years following the Closing Date (the “Effectiveness
Period”).
The Registration Statement when effective (including the documents incorporated
therein by reference) shall comply as to form with all applicable requirements
of the Securities Act and the Exchange Act and shall not contain 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.
3
(ii) Failure
To Go Effective.
If the Registration Statement required by Section
2.01
is not
effective by the Target Effective Date, then each Purchaser shall be entitled
to
a payment with respect to such Purchaser’s Registrable Securities, as liquidated
damages and not as a penalty, of 0.25% of the Liquidated Damages Multiplier
per
30-day period for the first 30 days following the Target Effective Date,
increasing by an additional 0.25% of the Liquidated Damages Multiplier per
30-day period for each subsequent 30 days, up to a maximum of 1.00% of the
Liquidated Damages Multiplier per 30-day period (the “Liquidated
Damages”).
The Liquidated Damages payable pursuant to the immediately preceding sentence
shall be payable within ten Business Days of the end of each such 30-day
period. Liquidated Damages for any period of less than 30-days shall be
prorated by multiplying Liquidated Damages to be paid in a full 30-day period
by
a fraction, the numerator of which is the number of days for which Liquidated
Damages are owed, and the denominator of which is 30. Any Liquidated Damages
shall be paid to each Purchaser in cash or immediately available funds;
provided,
however,
if
Atlas Energy certifies that it is unable to pay Liquidated Damages in cash
or
immediately available funds because such payment would result in a breach
under any of Atlas Energy’s or Atlas Energy’s Subsidiaries’ credit facilities or
other indebtedness filed as exhibits to the Atlas Energy SEC Documents, then
Atlas Energy may pay the Liquidated Damages in kind in the form of the issuance
of additional (A) Common Units or (B) Common Units or Class D
Units. Class D Units may only be issued as Liquidated Damages if and to
the extent Atlas Energy is restricted from issuing Common Units pursuant to
the
rules of The New York Stock Exchange or similar regulation. If Class D
Units are issued as Liquidated Damages as a result of a requirement by The
New
York Stock Exchange or similar regulation, then such Common Units and/or Class
D
Units will be issued to each Purchaser on a pro rata basis in such a manner
as
to maximize the number of Common Units issued to each such Purchaser. Upon
any issuance of Common Units and/or Class D Units as Liquidated Damages, Atlas
Energy shall promptly prepare and file an amendment to the Registration
Statement prior to its effectiveness adding such Common Units and/or Common
Units issuable upon conversion of Class D Units to such Registration Statement
as additional Registrable Securities. The determination of the number of
Common Units and Class D Units to be issued as Liquidated Damages shall be
equal
to the amount of Liquidated Damages divided by the volume weighted average
closing price of the Common Units (as reported by The New York Stock Exchange)
for the ten trading days immediately preceding the date on which the Liquidated
Damages payment is due, less a discount of 2%. Any obligation of Atlas
Energy to pay Liquidated Damages (other than Liquidated Damages owing but not
yet paid) to a Purchaser shall cease two years following the Closing Date.
As soon as practicable following the date that the Registration Statement or
any
post-effective amendment thereto becomes effective, but in any event within
two
Business Days of such date, Atlas Energy shall provide the Purchasers with
written notice of the effectiveness of the Registration Statement.
(iii) Waiver
of Liquidated Damages.
If Atlas Energy is unable to cause a Registration Statement to become effective
by the Target Effective Date as a result of an acquisition, merger,
reorganization, disposition or other similar transaction, then Atlas Energy
may
request a waiver of the Liquidated Damages, which may be granted or withheld
by
the consent of the Holders of two-thirds of the aggregate of the Purchased
Class
D Units and the Purchased Units, voting as a single class, in their sole
discretion.
(b) Delay
Rights.
Notwithstanding anything to the contrary contained herein, Atlas Energy may,
upon written notice to all of the Selling Holders whose Registrable Securities
are included in the Registration Statement, suspend such Selling Holders’ use of
any prospectus which is a part of the Registration Statement (in which event
each such Selling Holder shall discontinue sales of the Registrable Securities
pursuant to the Registration Statement) but such Selling Holder may settle
any
sales of Registrable Securities, if (i) Atlas Energy is pursuing an acquisition,
merger, reorganization, disposition or other similar transaction and Atlas
Energy determines in good faith that Atlas Energy’s ability to pursue or
consummate such a transaction would be materially adversely affected by any
required disclosure of such transaction in the Registration Statement or (ii)
Atlas Energy has experienced some other material non-public event, the
disclosure of which at such time, in the good faith judgment of Atlas Energy,
would materially adversely affect Atlas Energy; provided,
however,
in no
event shall such Selling Holders be suspended from selling Registrable
Securities pursuant to the Registration Statement for a period that exceeds
an
aggregate of 30 days in any 90-day period or 90 days in any 365-day
period. Upon disclosure of such information or the termination of the
condition described above, Atlas Energy shall (i) provide prompt notice to
the
Selling Holders whose Registrable Securities are included in the Registration
Statement, (ii) promptly terminate any suspension of sales it has put into
effect and (iii) take such other actions to permit sales of Registrable
Securities as contemplated in this Agreement.
4
(c) Additional
Rights to Liquidated Damages.
If (i) the Holders shall be prohibited from selling their Registrable Securities
under the Registration Statement as a result of a suspension pursuant to
Section
2.01(b)
of this
Agreement in excess of the periods permitted therein or (ii) the Registration
Statement is filed and effective but, during the Effectiveness Period, shall
thereafter cease to be effective or fail to be usable for its intended purpose
without being succeeded by a post-effective amendment to the Registration
Statement, a supplement to the prospectus or a report filed with the Commission
pursuant to Section 13(a), 13(c), 14 or l5(d) of the Exchange Act, then, until
the suspension is lifted or a post-effective amendment, supplement or report
is
filed with the Commission and effective, but not including any day on which
a
suspension is lifted or such amendment, supplement or report is filed and
effective, if applicable, Atlas Energy shall owe the Holders an amount equal
to
the Liquidated Damages, following (x) the date on which the suspension period
exceeded the permitted period under Section
2.01(b)
of this
Agreement or (y) the date after the Registration Statement ceased to be
effective or failed to be useable for its intended purposes, as liquidated
damages and not as a penalty. For purposes of this Section
2.01(c),
a
suspension shall be deemed lifted on the date that notice that the suspension
has been lifted or that a post-effective amendment is effective is delivered
to
the Holders pursuant to Section
3.01
of this
Agreement.
(d) S-1
Filing.
In
addition to the rights provided in Section 2.01(a), if Atlas Energy is not
eligible to file a shelf registration statement on Form S-3 on the File Date,
one or more Holders collectively holding greater than $25 million of Registrable
Securities, based on the Average Purchase Price, may thereafter deliver written
notice to Atlas Energy that such Holders wish to register under the Securities
Act an aggregate of at least $25 million of Registrable Securities, based on
the
Average Purchase Price specifying the amount and intended method of disposition
of such Registrable Securities. Atlas Energy will promptly give written notice
of such requested registration to all other Holders, and thereupon will, as
expeditiously as possible, use its reasonable best efforts to effect the
registration under the Securities Act of (i) such Registrable Securities which
the Company has been so requested to register by the such Holders; and (ii)
all
other Registrable Securities which Atlas Energy has been requested to register
by any other Holder (which request shall specify the amount and intended method
of disposition of such Registrable Securities, including an Underwritten
Offering) to the extent necessary to permit the disposition (in accordance
with
the intended method thereof as aforesaid) of the Registrable Securities so
to be
registered.
5
Section
2.02 Piggyback
Rights.
(a) Participation.
If
at any
time Atlas Energy proposes to file (i) a shelf registration statement other
than
the Registration Statement (in which event Atlas Energy covenants and agrees
to
include thereon a description of the transaction under which the Purchasers
acquired the Registrable Securities) and a prospectus supplement related
to such
shelf registration, (ii) a prospectus supplement to an effective shelf
registration statement, other than the Registration Statement contemplated
by
Section
2.01
of this
Agreement
and
Holders may be included without the filing of a post-effective amendment
thereto, or
(iii)
a
registration statement, other than a shelf registration statement, in any
case,
for the sale of Common Units in an Underwritten Offering for its own account
and/or another Person, then as soon as practicable but not less than three
Business Days prior to the filing of (x) any preliminary prospectus supplement
relating to such Underwritten Offering pursuant to Rule 424(b) under the
Securities Act, (y) the prospectus supplement relating to such Underwritten
Offering pursuant to Rule 424(b) under the Securities Act (if no preliminary
prospectus supplement is used) or (z) such registration statement (only in
respect of clause (iii) above for purposes of this clause (z)), as the case
may
be, then Atlas Energy shall give notice (including, but not limited to,
notification by electronic mail) of such proposed Underwritten Offering to
the
Holders and such notice shall offer the Holders the opportunity to include
in
such Underwritten Offering such number of Common
Units (the “Included
Registrable Securities”)
as
each such Holder may request in writing; provided,
however,
that if
Atlas Energy has been advised by the Managing Underwriter that the inclusion
of
Registrable Securities for sale for the benefit of the Holders will have
a
material adverse effect on the price, timing or distribution of the Common
Units
in the Underwritten Offering, then the amount of Registrable Securities to
be
offered for the accounts of Holders shall be determined based on the provisions
of Section
2.02(b)
of this
Agreement. The notice required to be provided in this Section
2.02(a)
to
Holders shall be provided on a Business Day pursuant to Section
3.01
hereof
and receipt of such notice shall be confirmed by such Holder. Each such
Holder shall then have three Business Days after receiving such notice to
request inclusion of Registrable Securities in the Underwritten Offering.
If no request for inclusion from a Holder is received within the specified
time,
such Holder shall have no further right to participate in such Underwritten
Offering. If, at any time after giving written notice of its intention to
undertake an Underwritten Offering and prior to the closing of such Underwritten
Offering, Atlas Energy shall determine for any reason not to undertake or
to
delay such Underwritten Offering, Atlas Energy may, at its election, give
written notice of such determination to the Selling Holders and, (x) in the
case
of a determination not to undertake such Underwritten Offering, shall be
relieved of its obligation to sell any Included Registrable Securities in
connection with such terminated Underwritten Offering, and (y) in the case
of a
determination to delay such Underwritten Offering, shall be permitted to
delay
offering any Included Registrable Securities for the same period as the delay
in
the Underwritten Offering. Any Selling Holder shall have the right to
withdraw such Selling Holder’s request for inclusion of such Selling Holder’s
Registrable Securities in such offering by giving written notice to Atlas
Energy
of such withdrawal up to and including the time of pricing of such
offering. Each Holder’s rights under this Section
2.02(a)
shall
terminate when such Holder (together with any Affiliates of such Holder)
holds
less than $15 million, in aggregate, of Registrable Securities, based on
the
Average Purchase Price. Notwithstanding the foregoing, any Holder may
deliver written notice (an “Opt
Out Notice”)
to
Atlas Energy requesting that such Holder not receive notice from Atlas Energy
of
any proposed Underwritten Offering; provided,
that
such Holder may later revoke any such notice.
(b) Priority
of Rights.
If the Managing Underwriter or Underwriters of any proposed Underwritten
Offering of Common Units included in an Underwritten Offering involving Included
Registrable Securities advises Atlas Energy, or Atlas Energy reasonably
determines, that the total amount of Registrable Securities that the Selling
Holders and any other Persons intend to include in such offering exceeds the
number that can be sold in such offering without being likely to have a material
adverse effect on the price, timing or distribution of the Common Units offered
or the market for the Common Units, then the Registrable Securities to be
included in such Underwritten Offering shall include the number of Registrable
Securities that such Managing Underwriter or Underwriters advises Atlas Energy,
or Atlas Energy reasonably determines, can be sold without having such adverse
effect, with such number to be allocated (i) first, to Atlas Energy, and (ii)
second, pro rata among the Selling Holders who have requested participation
in
such Underwritten Offering. The pro rata allocations for each such Selling
Holder shall be the product of (a) the aggregate number of Registrable
Securities proposed to be sold by all Selling Holders in such Underwritten
Offering multiplied by (b) the fraction derived by dividing (x) the number
of
Registrable Securities owned on the Closing Date by such Selling Holder by
(y)
the aggregate number of Registrable Securities owned on the Closing Date by
all
Selling Holders participating in the Underwritten Offering. All
participating Selling Holders shall have the opportunity to share pro rata
that
portion of such priority allocable to any Selling Holder(s) not so
participating.
6
Section
2.03 Underwritten
Offering.
(a) Request
for Underwritten Offering.
In the
event that one or more Holders collectively holding greater than $75 million
of
Registrable Securities, based on the Average Purchase Price, elect to dispose
of
Registrable Securities under the Registration Statement (including a
registration statement pursuant to Section 2.01(d)) pursuant to an Underwritten
Offering, Atlas Energy shall retain underwriters, effect such sale though an
Underwritten Offering, including entering into an underwriting agreement in
customary form with the Managing Underwriter or Underwriters, which shall
include, among other provisions, indemnities to the effect and to the extent
provided in Section 2.08 and take all reasonable actions as are requested by
the
Managing Underwriter or Underwriters to expedite or facilitate the disposition
of such Registrable Securities. Atlas Energy management shall participate in
a
roadshow or similar marketing effort on behalf of any such Holder or Holders
if
gross proceeds from such Underwritten Offering are reasonably expected to exceed
$75 million.
(b) Limitation
on Underwritten Offerings.
In
connection with any and all rights granted hereunder to the Holders to cause
Atlas Energy to engage underwriters to conduct an Underwritten Offering on
behalf of the Holders, in no event shall Atlas Energy be required to do more
than aggregate of four such Underwritten Offerings.
(c) General
Procedures.
In connection with any Underwritten Offering under this Agreement, Atlas Energy
shall be entitled to select the Managing Underwriter or Underwriters. In
connection with an Underwritten Offering contemplated by this Agreement in
which
a Selling Holder participates, each Selling Holder and Atlas Energy shall be
obligated to enter into an underwriting agreement that contains such
representations, covenants, indemnities and other rights and obligations as
are
customary in underwriting agreements for firm commitment offerings of
securities. No Selling Holder may participate in such Underwritten
Offering unless such Selling Holder agrees to sell its Registrable Securities
on
the basis provided in such underwriting agreement and completes and executes
all
questionnaires, powers of attorney, indemnities and other documents reasonably
required under the terms of such underwriting agreement. Each Selling
Holder may, at its option, require that any or all of the representations and
warranties by, and the other agreements on the part of, Atlas Energy to and
for
the benefit of such underwriters also be made to and for such Selling Holder’s
benefit and that any or all of the conditions precedent to the obligations
of
such underwriters under such underwriting agreement also be conditions precedent
to its obligations. No Selling Holder shall be required to make any
representations or warranties to or agreements with Atlas Energy or the
underwriters other than representations, warranties or agreements regarding
such
Selling Holder and its ownership of the securities being registered on its
behalf, its intended method of distribution and any other representation
required by Law. If any Selling Holder disapproves of the terms of an
underwriting, such Selling Holder may elect to withdraw therefrom by notice
to
Atlas Energy and the Managing Underwriter; provided,
however,
that
such withdrawal must be made at a time up to and including the time of pricing
of such Underwritten Offering. No such withdrawal or abandonment shall
affect Atlas Energy’s obligation to pay Registration Expenses.
7
Section
2.04 Sale
Procedures.
In connection with its obligations under this Article II, Atlas Energy will,
as
expeditiously as possible:
(a) prepare
and file with the Commission such amendments and supplements to the Registration
Statement and the prospectus used in connection therewith as may be necessary
to
cause the Registration Statement to be effective and to keep the Registration
Statement effective for the Effectiveness Period and as may be necessary to
comply with the provisions of the Securities Act with respect to the disposition
of all securities covered by the Registration Statement;
(b) furnish
to each Selling Holder (i) as far in advance as reasonably practicable before
filing the Registration Statement or any other registration statement
contemplated by this Agreement or any supplement or amendment thereto, upon
request, copies of reasonably complete drafts of all such documents proposed
to
be filed (including exhibits and each document incorporated by reference therein
to the extent then required by the rules and regulations of the Commission),
and
provide each such Selling Holder the opportunity to object to any information
pertaining to such Selling Holder and its plan of distribution that is contained
therein and make the corrections reasonably requested by such Selling Holder
with respect to such information prior to filing the Registration Statement
or
such other registration statement or supplement or amendment thereto, and (ii)
such number of copies of the Registration Statement or such other registration
statement and the prospectus included therein and any supplements and amendments
thereto as such Persons may reasonably request in order to facilitate the public
sale or other disposition of the Registrable Securities covered by such
Registration Statement or other registration statement;
(c) if
applicable, use its commercially reasonable efforts to register or qualify
the
Registrable Securities covered by the Registration Statement or any other
registration statement contemplated by this Agreement under the securities
or
blue sky laws of such jurisdictions as the Selling Holders or, in the case
of an
Underwritten Offering, the Managing Underwriter, shall reasonably request;
provided,
however,
that
Atlas Energy will not be required to qualify generally to transact business
in
any jurisdiction where it is not then required to so qualify or to take any
action which would subject it to general service of process in any such
jurisdiction where it is not then so subject;
8
(d) promptly
notify each Selling Holder and each underwriter of Registrable Securities,
at
any time when a prospectus relating thereto is required to be delivered by
any
of them under the Securities Act, of (i) the filing of the Registration
Statement or any other registration statement contemplated by this Agreement
or
any prospectus to be used in connection therewith, or any amendment or
supplement thereto, and, with respect to such Registration Statement or any
other registration statement or any post-effective amendment thereto, when
the
same has become effective; and (ii) any written comments from the Commission
with respect to any filing referred to in clause (i) and any written request
by
the Commission for amendments or supplements to the Registration Statement
or
any other registration statement or any prospectus or prospectus supplement
thereto;
(e) immediately
notify each Selling Holder and each underwriter of Registrable Securities,
at
any time when a prospectus relating thereto is required to be delivered under
the Securities Act, of (i) the happening of any event as a result of which
the
prospectus or prospectus supplement contained in the Registration Statement
or
any other registration statement contemplated by this Agreement, as then in
effect, includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing; (ii)
the
issuance or threat of issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or any other registration
statement contemplated by this Agreement, or the initiation of any proceedings
for that purpose; or (iii) the receipt by Atlas Energy of any notification
with
respect to the suspension of the qualification of any Registrable Securities
for
sale under the applicable securities or blue sky laws of any jurisdiction.
Following the provision of such notice, Atlas Energy agrees to as promptly
as
practicable amend or supplement the prospectus or prospectus supplement or
take
other appropriate action so that the prospectus or prospectus supplement does
not include 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 in the light of the circumstances then existing and to take
such
other action as is necessary to remove a stop order, suspension, threat thereof
or proceedings related thereto;
(f) upon
request and subject to appropriate confidentiality obligations, furnish to
each
Selling Holder copies of any and all transmittal letters or other correspondence
with the Commission or any other governmental agency or self-regulatory body
or
other body having jurisdiction (including any domestic or foreign securities
exchange) relating to such offering of Registrable Securities;
(g) in
the
case of an Underwritten Offering, furnish upon request, (i) an opinion of
counsel for Atlas Energy dated the effective date of the applicable registration
statement or the date of any amendment or supplement thereto, and a letter
of
like kind dated the date of the closing under the underwriting agreement, and
(ii) a “cold comfort” letter, dated the date of the applicable registration
statement or the date of any amendment or supplement thereto and a letter of
like kind dated the date of the closing under the underwriting agreement, in
each case, signed by the independent public accountants who have certified
Atlas
Energy’s financial statements included or incorporated by reference into the
applicable registration statement, and each of the opinion and the “cold
comfort” letter shall be in customary form and covering substantially the same
matters with respect to such registration statement (and the prospectus and
any
prospectus supplement included therein) as are customarily covered in opinions
of issuer’s counsel and in accountants’ letters delivered to the underwriters in
Underwritten Offerings of securities and such other matters as such underwriters
or Selling Holders may reasonably request;
9
(h) otherwise
use its commercially reasonable efforts to comply with all applicable rules
and
regulations of the Commission, and make available to its security holders,
as
soon as reasonably practicable, an earnings statement, which earnings statement
shall satisfy the provisions of Section 11(a) of the Securities Act and Rule
158
promulgated thereunder;
(i) make
available to the appropriate representatives of the Managing Underwriter and
Selling Holders access to such information and Atlas Energy personnel as is
reasonable and customary to enable such parties to establish a due diligence
defense under the Securities Act; provided,
however,
that
Atlas Energy need not disclose any such information to any such representative
unless and until such representative has entered into or is otherwise subject
to
a confidentiality agreement with Atlas Energy satisfactory to Atlas Energy
(including any confidentiality agreement referenced in Section 8.06 of the
Purchase Agreement);
(j) cause
all
such Registrable Securities registered pursuant to this Agreement to be listed
on each securities exchange or nationally recognized quotation system on which
similar securities issued by Atlas Energy are then listed;
(k) use
its
commercially reasonable efforts to cause the Registrable Securities to be
registered with or approved by such other governmental agencies or authorities
as may be necessary by virtue of the business and operations of Atlas Energy
to
enable the Selling Holders to consummate the disposition of such Registrable
Securities;
(l) provide
a
transfer agent and registrar for all Registrable Securities covered by such
registration statement not later than the effective date of such registration
statement;
(m) enter
into customary agreements and take such other actions as are reasonably
requested by the Selling Holders or the underwriters, if any, in order to
expedite or facilitate the disposition of such Registrable
Securities;
(n) If
any
Purchaser could reasonably be deemed to be an “underwriter,” as defined in
Section 2(a)(11) of the Securities Act, in connection with the registration
statement in respect of any registration of Registrable Securities of such
Purchaser pursuant to this Agreement, and any amendment or supplement thereof
(any such registration statement or amendment or supplement, a “Purchaser
Underwriter Registration Statement”),
then
for a period of two years following the File Date, Atlas Energy will cooperate
with such Purchaser in allowing such Purchaser to conduct customary
“underwriter’s due diligence” with respect to Atlas Energy and satisfy its
obligations in respect thereof. In addition, for a period of one year
following the File Date at any Purchaser’s request, Atlas Energy will furnish to
such Purchaser, on the date of the effectiveness of any Purchaser Underwriter
Registration Statement and thereafter no more often than on a quarterly basis,
(i) a letter, dated such date, from Atlas Energy’s independent certified public
accountants in form and substance as is customarily given by independent
certified public accountants to underwriters in an underwritten public offering,
addressed to such Purchaser, (ii) an opinion, dated as of such date, of counsel
representing Atlas Energy for purposes of such Purchaser Underwriter
Registration Statement, in form, scope and substance as is customarily given
in
an underwritten public offering, including a standard “10b-5” opinion for such
offering, addressed to such Purchaser and (iii) a standard officer’s certificate
from the Chief Executive Officer and Chief Financial Officer of Atlas Energy
addressed to such Purchaser. Atlas Energy will also permit one legal
counsel to such Purchaser(s) to review and comment upon any such Purchaser
Underwriter Registration Statement at least five Business Days prior to its
filing with the Commission and all amendments and supplements to any such
Purchaser Underwriter Registration Statement within a reasonable number of
days
prior to their filing with the Commission and not file any Purchaser Underwriter
Registration Statement or amendment or supplement thereto in a form to which
such Purchaser’s legal counsel reasonably objects;
10
(o) Each
Selling Holder, upon receipt of notice from Atlas Energy of the happening of
any
event of the kind described in Section
2.04(e)
of this
Agreement, shall forthwith discontinue disposition of the Registrable Securities
until such Selling Holder’s receipt of the copies of the supplemented or amended
prospectus contemplated by Section
2.04(e)
of this
Agreement or until it is advised in writing by Atlas Energy that the use of
the
prospectus may be resumed and has received copies of any additional or
supplemental filings incorporated by reference in the prospectus, and, if so
directed by Atlas Energy, such Selling Holder will, or will request the managing
underwriter or underwriters, if any, to deliver to Atlas Energy (at Atlas
Energy’s expense) all copies in their possession or control, other than
permanent file copies then in such Selling Holder’s possession, of the
prospectus covering such Registrable Securities current at the time of receipt
of such notice;
(p) If
requested by a Purchaser, Atlas Energy shall: (i) as soon as practicable
incorporate in a prospectus supplement or post-effective amendment such
information as such Purchaser reasonably requests to be included therein
relating to the sale and distribution of Registrable Securities, including
information with respect to the number of Registrable Securities being offered
or sold, the purchase price being paid therefor and any other terms of the
offering of the Registrable Securities to be sold in such offering; (ii) as
soon
as practicable make all required filings of such prospectus supplement or
post-effective amendment after being notified of the matters to be incorporated
in such prospectus supplement or post-effective amendment; and (iii) as soon
as
practicable, supplement or make amendments to any Registration Statement;
and
(q) Include
in the plan of distribution section of a registrations statement the following
language with respect to the selling unitholders:
“The
selling unitholders may enter into derivative transactions with third parties,
or sell securities not covered by this prospectus to third parties in privately
negotiated transactions. If the applicable prospectus supplement indicates,
in
connection with those derivatives, the third parties may sell securities covered
by this prospectus and the applicable prospectus supplement, including in short
sale transactions. If so, the third party may use securities pledged by the
selling unitholders or borrowed from the selling unitholders or others to settle
those sales or to close out any related open borrowings of Units, and may use
securities received from the selling unitholders in settlement of those
derivatives to close out any related open borrowings of Units.”
11
Section
2.05 Cooperation
by Holders.
Atlas Energy shall have no obligation to include in the Registration Statement
Registrable Securities of a Holder, or in an Underwritten Offering pursuant
to
Section
2.02
Registrable Securities of a Selling Holder, who has failed to timely furnish
such information that Atlas Energy determines, after consultation with counsel,
is reasonably required to be furnished or conformed in order for the
registration statement or prospectus supplement, as applicable, to comply with
the Securities Act.
Section
2.06 Restrictions
on Public Sale by Holders of Registrable Securities.
For a period of 365 days from the Closing Date, each Holder of Registrable
Securities agrees not to effect any public sale or distribution of the
Registrable Securities for a period of up to 30 days following completion of
an
Underwritten Offering of equity securities by Atlas Energy (except as provided
in this Section
2.06);
provided,
however,
that
the duration of the foregoing restrictions shall be no longer than the duration
of the shortest restriction generally imposed by the underwriters on the
officers or directors or any other Unitholder of Atlas Energy on whom a
restriction is imposed in connection with such public offering. In
addition, the provisions of this Section
2.06
shall
not apply with respect to a Holder that (A) owns less than $25 million, in
aggregate, of Registrable Securities based on the Average Purchase Price or
(B)
has delivered an Opt Out Notice to Atlas Energy pursuant to Section
2.02(a)
hereof;
provided,
however,
the
above shall not apply, in the case of a Purchaser that is a large multi-unit
investment or commercial banking organization, to activities in the normal
course of trading of units of such Purchaser other than the unit participating
in this transaction so long as such other units are not acting on behalf of
the
unit participating in this transaction and have not been provided with
confidential information regarding Atlas Energy by the unit participating in
this transaction; provided
further,
with
respect to ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., the restrictions contained in this
Section
2.06
shall
only apply to the ▇▇▇▇▇▇▇ Sachs Principal Strategies Group, as currently
configured, and shall not restrict or limit the activities of any area or
division of ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. or any of its Affiliates, other than
▇▇▇▇▇▇▇ Sachs Principal Strategies Group, as currently configured.
Section
2.07 Expenses.
(a) Certain
Definitions.
“Registration
Expenses”
means
all expenses incident to Atlas Energy’s performance under or compliance with
this Agreement to effect the registration of Registrable Securities on the
Registration Statement pursuant to Section
2.01
hereof
or an Underwritten Offering covered under this Agreement, and the disposition
of
such securities, including, without limitation, all registration, filing,
securities exchange listing and The New York Stock Exchange fees, all
registration, filing, qualification and other fees and expenses of complying
with securities or blue sky laws, fees of the National Association of Securities
Dealers, Inc., transfer taxes and fees of transfer agents and registrars, all
word processing, duplicating and printing expenses and the fees and
disbursements of one counsel to the Holders and independent public accountants
for Atlas Energy, including the expenses of any special audits or “cold comfort”
letters required by or incident to such performance and compliance.
“Selling
Expenses”
means
all underwriting fees, discounts and selling commissions allocable to the sale
of the Registrable Securities.
12
(b) Expenses.
Atlas Energy will pay all reasonable Registration Expenses as determined in
good
faith, including, in the case of an Underwritten Offering, whether or not any
sale is made pursuant to such Underwritten Offering. In addition, except
as otherwise provided in Section
2.08
hereof,
Atlas Energy shall not be responsible for legal fees incurred by Holders in
connection with the exercise of such Holders’ rights hereunder. Each
Selling Holder shall pay its pro rata share of all Selling Expenses in
connection with any sale of its Registrable Securities hereunder.
Section
2.08 Indemnification.
(a) By
Atlas Energy.
In the event of an offering of any Registrable Securities under the Securities
Act pursuant to this Agreement, Atlas Energy will indemnify and hold harmless
each Selling Holder thereunder, its Affiliates that own Registrable Securities
and their respective directors and officers, and each underwriter, pursuant
to
the applicable underwriting agreement with such underwriter, of Registrable
Securities thereunder and each Person, if any, who controls such Selling Holder
or underwriter within the meaning of the Securities Act and the Exchange Act,
and its directors and officers (collectively, the “Selling
Holder Indemnified Persons”),
against any losses, claims, damages, expenses or liabilities (including
reasonable attorneys’ fees and expenses) (collectively, “Losses”),
joint
or several, to which such Selling Holder Indemnified Person may become subject
under the Securities Act, the Exchange Act or otherwise, insofar as such Losses
(or actions or proceedings, whether commenced or threatened, in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in the Registration Statement or any other
registration statement contemplated by this Agreement, any preliminary
prospectus, free writing prospectus or final prospectus contained therein,
or
any amendment or supplement thereof, arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein (in the case of a
prospectus, in light of the circumstances under which they were made) not
misleading or arise out of or are based upon a Selling Holder being deemed
to be
an “underwriter,” as defined in Section 2(a)(11) of the Securities Act, in
connection with the registration statement in respect of any registration of
Atlas Energy’s securities, and will reimburse each such Selling Holder
Indemnified Person for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such Loss or actions or
proceedings; provided,
however,
that
Atlas Energy will not be liable in any such case if and to the extent that
any
such Loss arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission so made in strict conformity with
information furnished by such Selling Holder Indemnified Person in writing
specifically for use in the Registration Statement or such other registration
statement, or prospectus supplement, as applicable. Such indemnity shall
remain in full force and effect regardless of any investigation made by or
on
behalf of such Selling Holder or any such Selling Holder, its directors or
officers or any underwriter or controlling Person, and shall survive the
transfer of such securities by such Selling Holder.
13
(b) By
Each Selling Holder.
Each Selling Holder agrees severally and not jointly to indemnify and hold
harmless Atlas Energy, its directors and officers, and each Person, if any,
who
controls Atlas Energy within the meaning of the Securities Act or of the
Exchange Act, and its directors and officers, to the same extent as the
foregoing indemnity from Atlas Energy to the Selling Holders, but only with
respect to information regarding such Selling Holder furnished in writing by
or
on behalf of such Selling Holder expressly for inclusion in the Registration
Statement or any preliminary prospectus or final prospectus included therein,
or
any amendment or supplement thereto; provided,
however,
that
the liability of each Selling Holder shall not be greater in amount than the
dollar amount of the proceeds (net of any Selling Expenses) received by such
Selling Holder from the sale of the Registrable Securities giving rise to such
indemnification.
(c) Notice.
Promptly after receipt by an indemnified party hereunder of notice of the
commencement of any action, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party hereunder, notify the
indemnifying party in writing thereof, but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have
to
any indemnified party other than under this Section
2.08.
In any action brought against any indemnified party, it shall notify the
indemnifying party of the commencement thereof. The indemnifying party
shall be entitled to participate in and, to the extent it shall wish, to assume
and undertake the defense thereof with counsel reasonably satisfactory to such
indemnified party and, after notice from the indemnifying party to such
indemnified party of its election so to assume and undertake the defense
thereof, the indemnifying party shall not be liable to such indemnified party
under this Section
2.08
for any
legal expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation and of
liaison with counsel so selected; provided,
however,
that,
(i) if the indemnifying party has failed to assume the defense or employ counsel
reasonably acceptable to the indemnified party or (ii) if the defendants in
any
such action include both the indemnified party and the indemnifying party and
counsel to the indemnified party shall have concluded that there may be
reasonable defenses available to the indemnified party that are different from
or additional to those available to the indemnifying party, or if the interests
of the indemnified party reasonably may be deemed to conflict with the interests
of the indemnifying party, then the indemnified party shall have the right
to
select a separate counsel and to assume such legal defense and otherwise to
participate in the defense of such action, with the reasonable expenses and
fees
of such separate counsel and other reasonable expenses related to such
participation to be reimbursed by the indemnifying party as incurred.
Notwithstanding any other provision of this Agreement, no indemnified party
shall settle any action brought against it with respect to which it is entitled
to indemnification hereunder without the consent of the indemnifying party,
unless the settlement thereof imposes no liability or obligation on, and
includes a complete and unconditional release from all liability of, the
indemnifying party.
(d) Contribution.
If the indemnification provided for in this Section
2.08
is held
by a court or government agency of competent jurisdiction to be unavailable
to
any indemnified party or is insufficient to hold them harmless in respect of
any
Losses, then each such indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such Loss in such proportion as is appropriate
to reflect the relative fault of the indemnifying party on the one hand and
of
such indemnified party on the other in connection with the statements or
omissions which resulted in such Losses, as well as any other relevant equitable
considerations;
14
provided,
however,
that in
no event shall such Selling Holder be required to contribute an aggregate amount
in excess of the dollar amount of proceeds (net of Selling Expenses) received
by
such Selling Holder from the sale of Registrable Securities giving rise to
such
indemnification. The relative fault of the indemnifying party on the one
hand and the indemnified party on the other shall be determined by reference
to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact has been
made
by, or relates to, information supplied by such party, and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be
just and equitable if contributions pursuant to this paragraph were to be
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to herein.
The amount paid by an indemnified party as a result of the Losses referred
to in
the first sentence of this paragraph shall be deemed to include any legal and
other expenses reasonably incurred by such indemnified party in connection
with
investigating or defending any Loss which is the subject of this
paragraph. 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 is not guilty of such fraudulent
misrepresentation.
(e) Other
Indemnification.
The provisions of this Section
2.08
shall be
in addition to any other rights to indemnification or contribution which an
indemnified party may have pursuant to law, equity, contract or
otherwise.
Section
2.09 Rule
144 Reporting.
With a view to making available the benefits of certain rules and regulations
of
the Commission that may permit the sale of the Registrable Securities to the
public without registration, Atlas Energy agrees to use its commercially
reasonable efforts to:
(a) make
and
keep public information regarding Atlas Energy available, as those terms are
understood and defined in Rule 144 under the Securities Act, at all times from
and after the date hereof;
(b) file
with
the Commission in a timely manner all reports and other documents required
of
Atlas Energy under the Securities Act and the Exchange Act at all times from
and
after the date hereof; and
(c) so
long
as a Holder owns any Registrable Securities, furnish, unless otherwise not
available at no charge by access electronically to the Commission’s ▇▇▇▇▇ filing
system, to such Holder forthwith upon request a copy of the most recent annual
or quarterly report of Atlas Energy, and such other reports and documents so
filed as such Holder may reasonably request in availing itself of any rule
or
regulation of the Commission allowing such Holder to sell any such securities
without registration.
Section
2.10 Transfer
or Assignment of Registration Rights.
The rights to cause Atlas Energy to register Registrable Securities granted
to
the Purchasers by Atlas Energy under this Article II may be transferred or
assigned by any Purchaser to one or more transferee(s) or assignee(s) of such
Registrable Securities or by total return swap; provided,
however,
that,
except with respect to a total return swap, (a) unless such transferee is an
Affiliate of such Purchaser or another Purchaser, each such transferee or
assignee holds Registrable Securities in the amount of $10 million, based on
the
Average Purchase Price, (b) Atlas Energy is given written notice prior to any
said transfer or assignment, stating the name and address of each such
transferee and identifying the securities with respect to which such
registration rights are being transferred or assigned, and (c) each such
transferee assumes in writing responsibility for its portion of the obligations
of such Purchaser under this Agreement.
15
Section
2.11 Limitation
on Subsequent Registration Rights.
From and after the date hereof, Atlas Energy shall not, without the prior
written consent of the Holders of Registrable Securities, (i) enter into any
agreement with any current or future holder of any securities of Atlas Energy
that would allow such current or future holder to require Atlas Energy to
include securities in any registration statement filed by Atlas Energy on a
basis that is superior in any way to the piggyback rights granted to the
Purchasers hereunder or (ii) grant registration rights to any other Person
that
would be superior to the Purchasers’ registration rights hereunder.
ARTICLE III
MISCELLANEOUS
Section
3.01 Communications.
All notices and other communications provided for or permitted hereunder shall
be made in writing by facsimile, electronic mail, courier service or personal
delivery:
(a) if
to
Atlas Energy, to the address set forth on its signature page;
(b) if
to a
Purchaser, to the address set forth on Exhibit A; and
(c) if
to a
transferee of Purchaser, to such Holder at the address provided pursuant to
Section
2.10
hereof.
All
such
notices and communications shall be deemed to have been received: at the time
delivered by hand, if personally delivered; when receipt acknowledged, if sent
via facsimile or electronic mail; and when actually received, if sent by courier
service or any other means.
Section
3.02 Successor
and Assigns.
This Agreement shall inure to the benefit of and be binding upon the successors
and assigns of each of the parties, including subsequent Holders of Registrable
Securities to the extent permitted herein.
Section
3.03 Aggregation
of Purchased Class D Units and Purchased Units.
All Purchased Class D Units and Purchased Units held or acquired by Persons
who
are Affiliates of one another shall be aggregated together for the purpose
of
determining the availability of any rights under this Agreement.
Section
3.04 Recapitalization,
Exchanges, Etc. Affecting the Units.
The provisions of this Agreement shall apply to the full extent set forth herein
with respect to any and all units of Atlas Energy or any successor or assign
of
Atlas Energy (whether by merger, consolidation, sale of assets or otherwise)
which may be issued in respect of, in exchange for or in substitution of, the
Registrable Securities, and shall be appropriately adjusted for combinations,
unit splits, recapitalizations and the like occurring after the date of this
Agreement, including any issuance pursuant to Section 5.02 of the Purchase
Agreement.
16
Section
3.05 Change
of Control.
Atlas
Energy shall not merge, consolidate or combine with any other Person unless
the
agreement providing for such merger, consolidation or combination expressly
provides for the continuation of the registration rights specified in this
Agreement with respect to the Registrable Securities or other equity securities
issued pursuant to such merger, consolidation or combination.
Section
3.06 Specific
Performance.
Damages in the event of breach of this Agreement by a party hereto may be
difficult, if not impossible, to ascertain, and it is therefore agreed that
each
such Person, in addition to and without limiting any other remedy or right
it
may have, will have the right to an injunction or other equitable relief in
any
court of competent jurisdiction, enjoining any such breach, and enforcing
specifically the terms and provisions hereof, and each of the parties hereto
hereby waives any and all defenses it may have on the ground of lack of
jurisdiction or competence of the court to grant such an injunction or other
equitable relief. The existence of this right will not preclude any such
Person from pursuing any other rights and remedies at law or in equity which
such Person may have.
Section
3.07 Counterparts.
This Agreement may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which counterparts, when so
executed and delivered, shall be deemed to be an original and all of which
counterparts, taken together, shall constitute but one and the same
Agreement.
Section
3.08 Headings.
The headings in this Agreement are for convenience of reference only and shall
not limit or otherwise affect the meaning hereof.
Section
3.09 Governing
Law.
The Laws of the State of New York shall govern this Agreement without regard
to
principles of conflict of Laws.
Section
3.10 Severability
of Provisions.
Any provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting or impairing the validity or enforceability
of
such provision in any other jurisdiction.
Section
3.11 Entire
Agreement.
This Agreement is intended by the parties as a final expression of their
agreement and intended to be a complete and exclusive statement of the agreement
and understanding of the parties hereto in respect of the subject matter
contained herein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein with respect
to
the rights granted by Atlas Energy set forth herein. This Agreement and
the Purchase Agreement supersede all prior agreements and understandings between
the parties with respect to such subject matter.
Section
3.12 Amendment.
This Agreement may be amended only by means of a written amendment signed by
Atlas Energy and the Holders of a majority of the then outstanding Registrable
Securities; provided,
however,
that no
such amendment shall materially and adversely affect the rights of any Holder
hereunder without the consent of such Holder.
17
Section
3.13 No
Presumption.
If any claim is made by a party relating to any conflict, omission or ambiguity
in this Agreement, no presumption or burden of proof or persuasion shall be
implied by virtue of the fact that this Agreement was prepared by or at the
request of a particular party or its counsel.
Section
3.14 Obligations
Limited to Parties to Agreement.
Each of the Parties hereto covenants, agrees and acknowledges that no Person
other than the Purchasers (and their permitted assignees) and Atlas Energy
shall
have any obligation hereunder and that, notwithstanding that one or more of
the
Purchasers may be a corporation, partnership or limited liability company,
no
recourse under this Agreement or the Purchase Agreement or under any documents
or instruments delivered in connection herewith or therewith shall be had
against any former, current or future director, officer, employee, agent,
general or limited partner, manager, member, stockholder or Affiliate of any
of
the Purchasers or any former, current or future director, officer, employee,
agent, general or limited partner, manager, member, stockholder or Affiliate
of
any of the foregoing, whether by the enforcement of any assessment or by any
legal or equitable proceeding, or by virtue of any applicable Law, it being
expressly agreed and acknowledged that no personal liability whatsoever shall
attach to, be imposed on or otherwise be incurred by any former, current or
future director, officer, employee, agent, general or limited partner, manager,
member, stockholder or Affiliate of any of the Purchasers or any former, current
or future director, officer, employee, agent, general or limited partner,
manager, member, stockholder or Affiliate of any of the foregoing, as such,
for
any obligations of the Purchasers under this Agreement or the Purchase Agreement
or any documents or instruments delivered in connection herewith or therewith
or
for any claim based on, in respect of or by reason of such obligation or its
creation.
[The
remainder of this page is intentionally left blank]
18
IN
WITNESS WHEREOF, the Parties hereto execute this Agreement, effective as of
the
date first above written.
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ATLAS
ENERGY RESOURCES, LLC
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| By: | ||
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Name: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇
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Title: Chief
Financial Officer
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Address
for notices:
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Atlas
Energy Resources, LLC
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▇▇▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Fax: ▇▇▇-▇▇▇-▇▇▇▇
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Attn: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇
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With
copies to:
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Ledgewood | |
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▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
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▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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Fax: ▇▇▇-▇▇▇-▇▇▇▇
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Attn: ▇▇▇▇
▇. ▇▇▇▇▇
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Signature
Page to Registration Rights
Agreement
IN
WITNESS WHEREOF, the Parties hereto execute this Agreement, effective as of
the
date first above written.
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[Purchaser]
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| By: | ||
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Name:
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Title:
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Signature
Page to Registration Rights
Agreement
EXHIBIT
A
| 1. |
Name
of Purchaser: ▇▇▇▇▇▇
Brothers Inc.
|
| Address: |
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇
|
| 2. |
Name
of Purchaser: Magnetar
Capital Fund, LP
|
| Address: |
▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
|
| 3. |
Name
of Purchaser: Structured
Finance Americas, LLC
|
| Address: |
▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇
|
| 4. |
Name
of Purchaser: LB
I Group
|
| Address: |
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
|
| 5. |
Name
of Purchaser: ▇▇▇▇▇▇
Brothers MLP Opportunity Fund
L.P.
|
| Address: |
▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇
|
| 6. |
Name
of Purchaser: ▇▇▇▇▇▇▇,
▇▇▇▇▇ & Co.
|
| Address: |
▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇
|
| 7. |
Name
of Purchaser: Royal
Bank of Canada
|
| Address: |
▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇
|
| 8. |
Name
of Purchaser: Swank
MLP Convergence Fund, LP
|
| Address: |
▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
|
Ex.
A
| 9. |
Name
of Purchaser: The
▇▇▇▇▇▇▇ MLP Opportunity Fund I,
LP
|
| Address: |
▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
|
| 10. |
Name
of Purchaser: ZLP
Fund, L.P.
|
| Address: |
▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇
|
| 11. |
Name
of Purchaser: ▇▇▇▇▇
▇▇▇▇▇▇▇▇ Energy Development
Company
|
| Address: |
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
|
| 12. |
Name
of Purchaser: ▇▇▇▇▇
▇▇▇▇▇▇▇▇ MLP Investment
Company
|
| Address: |
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
|
| 13. |
Name
of Purchaser: ▇▇▇▇▇
▇▇▇▇▇▇▇▇ Energy Total Return Fund,
Inc.
|
| Address: |
▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
|
| 14. |
Name
of Purchaser: Credit
Suisse Management LLC
|
| Address: |
▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇-▇▇▇▇
|
| 15. |
Name
of Purchaser: Sunlight
Capital Partners, LLC
|
| Address: |
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇
|
| 16. |
Name
of Purchaser: ▇▇▇▇▇▇▇
Capital Ltd.
|
| Address: |
Dundee
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
28
North Church Street
▇▇▇▇▇▇
Town, Grand Cayman, Cayman
Islands
|
Ex.
A
| 17. |
Name
of Purchaser Party to this Agreement: Cobalt
Capital Management, Inc.
|
A. Name
of
Purchaser: Cobalt
Partners, LP
Address:
▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
B. Name
of
Purchaser: Cobalt
Partners II, LP
Address:
▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
C. Name
of
Purchaser: Guggenheim
Portfolio Company XI, LLC
Address:
▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
| 18. |
Name
of Purchasers party to this Agreement: Och-Ziff
Associates LLC
Oz
Management,
L.L.C.
|
A. Name
of
Purchaser: OZ
Domestic Partners, L.P.
Address:
▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
B. Name
of
Purchaser: Oz
Domestic Partners II, L.P.
Address:
▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Ex.
A
C. Name
of
Purchaser: Oz
Offshore ATN Investors I, LLC
Address:
▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
D. Name
of
Purchaser: Oz
Offshore ATN Investors II, LLC
Address:
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
E. Name
of
Purchaser: Oz
Offshore ATN Investors III, LLC
Address:
▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
F. Name
of
Purchaser: Oz
Global Special Investments, L.P.
Address:
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
G. Name
of
Purchaser: ▇▇▇▇▇▇▇,
▇▇▇▇▇ & Co. Profit Sharing Master Trust
Address:
▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
H. Name
of
Purchaser: GPC
LVII, LLC
Address:
▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Ex.
A
| 19. |
Name
of Purchaser Party to this Agreement: Omega
Advisors, Inc.
|
A. Name
of
Purchaser: Omega
Capital Partners, L.P.
Address:
▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
B. Name
of
Purchaser: Omega
Capital Investors, L.P.
Address:
▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
C. Name
of
Purchaser: Omega
SPV Partners, L.P.
Address:
▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
D. Name
of
Purchaser: Omega
Equity Investors, L.P.
Address:
▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
E. Name
of
Purchaser: Beta
Equities, Inc.
Address:
c/o
General Electric Investment Corporation
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
F. Name
of
Purchaser: GS&Co
Profit Sharing Master Trust
Address:
c/o
The ▇▇▇▇▇▇▇ Sachs Trust Company
▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Ex.
A
G. Name
of
Purchaser: Presidential
Life Corporation
Address:
▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇,
▇▇ ▇▇▇▇▇
H.
Name
of Purchaser: The
Ministers and Missionaries Benefit Board of American Baptist
Churches
Address:
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Ex.
A