Exhibit 10.3


 


EXECUTION
COPY


 


REGISTRATION
RIGHTS AGREEMENT


 


This REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of November 19,
2009, is entered into by and among Cloud Peak Energy Inc., a Delaware
corporation (including its successors, the “Company”),
Cloud Peak Energy Resources LLC, a Delaware limited liability company(“CPE LLC”), Rio Tinto America Inc.,
a Delaware corporation (“RTA”), Rio
Tinto Energy America Inc., a Delaware corporation (“RTEA”)
and Kennecott Management Services Company, a Delaware corporation (“KMS”). The Company, RTEA and KMS
are parties to the Third Amended and Restated Limited Liability Company
Agreement of CPE LLC.


 


ARTICLE
1


DEFINITIONS


 


1.1.          Definitions.  The following terms shall have the meanings
set forth in this Section 1.1:


 


“Affiliate”
of any specified Person means any other Person directly or indirectly
“controlling,” “controlled by” or “under common control with” (within the
meaning of Rule 405 under the Securities Act), such specified Person; provided,
however, the determination of whether a Person is an Affiliate of
another Person shall be made assuming that no Holder is an Affiliate of the
Company or CPE LLC solely by virtue of the ownership of Membership Units.


 


“Common Stock”
shall mean the Company’s common stock, par value $0.01 per share.


 


“Equity Interests”
mean, with respect to the Company, any and all shares of capital stock in the
Company or securities convertible into, or exchangeable or exercisable for,
such shares, and options, warrants or other rights to acquire such shares.  For purposes of this Agreement, Equity
Interests shall include all issued and outstanding Membership Units.


 


“Exchange Act”
means the Securities Exchange Act of 1934, as amended, or any similar federal
statute, and the rules and regulations promulgated by the SEC thereunder.


 


“Excluded Registration”
means a registration under the Securities Act of (i) securities pursuant
to one or more Demand Registrations pursuant to Section 2.1 hereof,
(ii) securities registered on Form S-8 or any similar successor form,
and (iii) securities registered to effect the acquisition of, or
combination with, another Person.


 


“Holder”
means (i) RTEA, (ii) KMS and (iii) any Person to whom RTA, RTEA
or KMS assigns rights under this Agreement pursuant to Section 2.9,
and who has agreed in writing to be bound by the terms of this Agreement.


 

















 


“Initial
Public Offering” means the initial public offering registered
under the Securities Act of the Common Stock of the Company.


 


“IPO Registration Statement”
means the Company’s registration statement on Form S-1 (File No. 333-161293),
as amended, filed with the SEC in connection with the Initial Public Offering.


 


“Membership Units”
means the common membership units of CPE LLC.


 


“Person” or
“person” means any individual,
corporation, partnership, limited liability company, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or other agency or political subdivision thereof.


 


“register,”
“registered” and “registration” refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.


 


“Registrable
Securities” means the shares of the
Company’s Common Stock issued or issuable to any Holder in exchange for
Membership Units or any other shares of Common Stock owned at any time by the
Holders. As to any particular Registrable Securities, such Common Stock shall
cease to be Registrable Securities when: (a) a registration statement with
respect to the sale of such Common Stock shall have become effective under the
Securities Act and such Common Stock shall have been disposed of in accordance
with such registration statement; (b) such Common Stock shall have been
sold to the public pursuant to Rule 144 under the Securities Act (or any
successor provision); or (c) such Common Stock shall have ceased to be
outstanding.


 


“Requesting
Holders” shall mean any Holder(s) requesting
to have its (their) Registrable Securities included in any Demand Registration
or Shelf Registration.


 


“SEC” means
the Securities and Exchange Commission or any other federal agency at the time
administering the Securities Act.


 


“Securities
Act” means the Securities Act of
1933, as amended, or any similar federal statute, and the rules and
regulations promulgated by the SEC thereunder.


 


1.2.          Other Terms.  For purposes of this Agreement, the following
terms have the meanings set forth in the section or agreement indicated.


 


	
  Term

  	
   

  	
  Section

  
	
  Advice

  	
   

  	
  Section 2.6

  
	
  Agreement

  	
   

  	
  Introductory
  Paragraph

  
	
  Blackout
  Period

  	
   

  	
  Section 2.1.6

  
	
  Company

  	
   

  	
  Introductory
  Paragraph

  



 


2

















 


	
  Demand
  Registration

  	
   

  	
  Section 2.1.1(i)

  
	
  Demanding
  Shareholders

  	
   

  	
  Section 2.1.1(i)

  
	
  Demand
  Request

  	
   

  	
  Section 2.1.1(i)

  
	
  FINRA

  	
   

  	
  Section 2.7.1

  
	
  Inspectors

  	
   

  	
  Section 2.5(xiii)

  
	
  KMS

  	
   

  	
  Introductory
  Paragraph

  
	
  New
  York Courts

  	
   

  	
  Section 3.3.2

  
	
  Piggyback
  Registration

  	
   

  	
  Section 2.2.1

  
	
  Required
  Filing Date

  	
   

  	
  Section 2.1.1(ii)

  
	
  RTA

  	
   

  	
  Introductory
  Paragraph

  
	
  RTEA

  	
   

  	
  Introductory
  Paragraph

  
	
  Shelf
  Registration

  	
   

  	
  Section 2.3

  
	
  Suspension
  Notice

  	
   

  	
  Section 2.6

  
	
  Suspension
  Period

  	
   

  	
  Section 2.6

  



 


1.3.          Rules of Construction.  Unless the context otherwise requires


 


(1)                      a term has the
meaning assigned to it;


 


(2)                      words in the
singular include the plural, and words in the plural include the singular; and


 


(3)                      “herein,”
“hereof” and other words of similar import refer to this Agreement as a whole
and not to any particular Article, Section or other subdivision.


 


ARTICLE 2


REGISTRATION RIGHTS


 


2.1.          Demand Registration.


 


2.1.1        Request for Registration.


 


(i)            Commencing on the date
hereof, RTA shall have the right to require the Company to file a registration
statement on Form S-1 or S-3 or any similar or successor to such forms
under the Securities Act for a public offering of all or part of the
Registrable Securities of one or more Holders of Registrable Securities (a “Demand  Registration”),
by delivering to the Company written notice stating that such right is being
exercised, naming, if applicable, the Holders whose Registrable Securities are
to be included in such registration (collectively, the “Demanding
Shareholders”), specifying the
number of each such Demanding Shareholder’s Registrable Securities to be
included in such registration and, subject to Section 2.1.3 hereof,
describing the intended method of distribution thereof (a “Demand
Request”).  The IPO Registration Statement shall not
constitute a Demand Registration for any purpose under this Agreement.  RTA may exercise its rights under this Section 2.1
on behalf of any Holder of Registrable Securities, in RTA’s sole discretion.


 


3

















 


(ii)           Each Demand Request shall
specify the aggregate number of Registrable Securities proposed to be
sold.  Subject to Section 2.1.6, the Company shall file the
registration statement in respect of a Demand Registration within forty-five
(45) days after receiving a Demand Request (the “Required
Filing  Date”)
and shall use reasonable best efforts to cause the same to be declared
effective by the SEC as promptly as practicable after such filing; provided,
however, that:


 


(a)           the Company shall not be
obligated to cause a registration statement with respect to a Demand
Registration to be declared effective pursuant to Section 2.1.1(i) (A) within
60 days after the effective date of a previous Demand Registration, other than
a Shelf Registration pursuant to this Article 2, or (B) within 180
days after the effective date of the IPO Registration Statement unless any
underwriter lock-up period applicable to RTEA and/or KMS in connection with the
Initial Public Offering has been waived;


 


(b)           the Company shall not be
obligated to cause a registration statement with respect to a Demand
Registration to be declared effective pursuant to Section 2.1.1(i) unless
the Demand Request is for a number of Registrable Securities with a market
value that is equal to at least $50 million as of the date of such Demand
Request; provided, however, that this Section 2.1.1.(ii)(b) shall
not apply if the applicable Demand Request is for all of the Registrable
Securities held by the Holders as of the date of such Demand Request;


 


(c)           the Company shall not be
obligated to cause to be declared effective pursuant to Section 2.1.1(i) more
than five registration statements with respect to Demand Registrations; and


 


(d)           if the Company causes a
registration statement to be declared effective registering the sale of the
Company’s equity securities and conducts a sale of such equity securities, the
net proceeds of which will be used solely for the purpose of causing CPE LLC to
redeem Membership Units from RTEA or KMS in exchange for cash, such
registration statement shall constitute a Demand Registration under the terms
of this Agreement so long as the net proceeds are equal to at least $50
million.


 


2.1.2        Primary Offering.  In the event RTA chooses to exercise a Demand
Registration on behalf of RTEA and/or KMS but either are unable to sell the
Registrable Securities in such Demand Registration under applicable law or due
to an SEC position or interpretation regarding such Demand Registration, as
promptly as practicable following such an occurrence, the Company shall use its
reasonable best efforts to conduct an SEC registered offering of its securities
(including, without limitation, debt or equity securities), the net proceeds of
which shall be used to repurchase the Registrable Securities from RTEA or KMS,
as applicable, that were intended to be part of such Demand Registration.  Any such securities offering by the Company
shall be deemed to satisfy one Demand Registration under this Section 2.1.


 


4

















 


2.1.3        Selection of Underwriters.  At the request of a majority of the
Requesting Holders (as defined below), the offering of Registrable Securities
pursuant to a Demand Registration shall be in the form of a “firm commitment”
underwritten offering.  The Holders of a majority of the Registrable
Securities to be registered in a Demand Registration shall select the
investment banking firm or firms to manage the underwritten offering, provided
that such selection shall be subject to the consent of the Company, which
consent shall not be unreasonably withheld, delayed or conditioned. Following
the printing of any preliminary prospectus or preliminary prospectus
supplement, no Holder participating in such an underwritten offering may
withdraw its Registrable Securities from such Demand Registration without the
consent of a majority of the Requesting Holders or RTA.  No Holder may participate in any registration
pursuant to Section 2.1.1 unless such Holder (x) agrees to
sell such Holder’s Registrable Securities on the basis provided in any
underwriting arrangements described above and (y) completes and executes
all questionnaires, powers of attorney, indemnities, underwriting agreements
and other documents and delivers all opinions reasonably required under the
terms of such underwriting arrangements; provided, however, that
no such Holder shall be required to make any representations or warranties in
connection with any such registration other than representations and warranties
as to (i) such Holder’s ownership of his or its Registrable Securities to
be transferred free and clear of all encumbrances, (ii) such Holder’s
power and authority to effect such transfer, and (iii) such matters
pertaining to compliance with securities laws as may be reasonably requested; provided,
further, however, that the obligation of such Holder to indemnify
pursuant to any such underwriting arrangements shall be several, not joint and
several, among such Holders selling Registrable Securities, and the liability
of each such Holder will be in proportion thereto, and provided, further,
that such liability will be limited to the net amount received by such Holder
from the sale of his or its Registrable Securities pursuant to such
registration; and provided, further, that any such
indemnification provided by a Holder selling Registerable Securities shall be
limited to indemnification for information provided by such Holder specifically
for inclusion in the registration statement.


 


2.1.4        Rights of Nonrequesting
Holders.  Upon receipt of any Demand
Request, the Company shall no later than ten (10) days after filing of the
relevant registration statement give written notice delivered by hand,
facsimile transmission, electronic mail or nationally recognized overnight
delivery service (with postage prepaid) of such proposed Demand Registration to
all other Holders, who shall have the right, exercisable by written notice to
the Company within fifteen (15) days of the delivery of the Company’s notice,
to elect to include in such Demand Registration such portion of their
Registrable Securities as they may request.  All Holders requesting to have
their Registrable Securities included in a Demand Registration in accordance
with the preceding sentence shall be deemed to be “Requesting Holders” for
purposes of this Section 2.1.


 


2.1.5        Priority on Demand
Registrations.  No securities to be sold for the account of
any Person (including the Company) other than a Requesting Holder shall be
included in a Demand Registration unless the managing underwriter or
underwriters shall advise the Requesting Holders that such securities may be
included and sold in an orderly manner at a price that is acceptable to the
holders of a majority of the Registrable Securities of the Requesting Holders
to be included in such Demand Registration.  The managing underwriter or
underwriters may make any determination pursuant to this Section 2.1.5
both prior to and following the 


 


5

















 


printing of any preliminary prospectus or
preliminary prospectus supplement with respect to any Demand Registration.


 


2.1.6        Deferral of Filing.  During any calendar year, the Company may
defer the filing (but not the preparation) of a registration statement required
by Section 2.1 to after the Required Filing Date (i) for no
more than thirty (30) days during such calendar year if at the time the Company
receives the Demand Request, the Board of Directors of the Company or a
committee of the Board of Directors of the Company reasonably determines in
good faith that such filing would be materially detrimental to the Company, any
of its Subsidiaries or the stockholders of the Company, and (ii) for no
more than one hundred twenty (120) days less the number of days utilized
pursuant to clause (i) above during such calendar year if at the time the
Company receives the Demand Request, the Company or any of its Subsidiaries are
engaged in confidential negotiations or other confidential business activities,
disclosure of which would be required in such registration statement (but would
not be required if such registration statement were not filed), and the Board
of Directors of the Company or a committee of the Board of Directors of the
Company reasonably determines in good faith that such disclosure would have a
material adverse effect on the Company and its stockholders (any such period
during which such filing is deferred pursuant to this Section 2.1.6,
a “Blackout  Period”). 
The Company may only exercise its right to defer a registration statement
pursuant to this Section 2.1.6 twice in any calendar year and,
considered together with any Suspension Period (as defined in Section 2.6),
 (a) for no more than thirty (30) calendar days with respect to
items of the type covered by clause (i) above  and (b) for no
more than one hundred and twenty (120) days less the number of days covered by
clause (a) above in the aggregate during such calendar year.  A
deferral of the filing of a registration statement pursuant to Section 2.1.6(ii) shall
be lifted, and the requested registration statement shall be filed forthwith,
if the negotiations or other activities are disclosed or terminated.  In
order to defer the filing of a registration statement pursuant to this Section 2.1.6,
the Company shall within ten (10) days, upon determining to seek such
deferral, deliver to each Requesting Holder a certificate signed by an
executive officer of the Company stating that the Company is deferring such
filing pursuant to this Section 2.1.6 (subject to execution of a
confidentiality agreement if required by law or contract) and a general
statement of the reason for such deferral and an approximation of the
anticipated delay.  Within twenty (20) days after receiving such
certificate, RTA may withdraw such Demand Request by giving notice to the
Company; if withdrawn, the Demand Request shall be deemed not to have been made
for all purposes of this Agreement.


 


2.2.          Piggyback Registrations.


 


2.2.1        Right to Piggyback.  Each time the Company proposes to register
any of its equity securities (other than pursuant to an Excluded Registration)
under the Securities Act for sale to the public (whether for the account of the
Company or the account of any securityholder of the Company) (a “Piggyback  Registration”),
the Company shall give prompt written notice to each Holder (which notice shall
be given not less than twenty (20) days prior to the anticipated printing of
any preliminary prospectus), which notice shall offer each such Holder the
opportunity to include any or all of its Registrable Securities in such
registration statement, subject to the limitations contained in Section 2.2.2
hereof.  Each Holder who desires to have its Registrable Securities
included in such registration statement shall so advise the Company in writing
(stating the number of shares desired to be registered) within ten (10) days
after the date 


 


6

















 


of such notice from the Company.  Any Holder
shall have the right to withdraw such Holder’s request for inclusion of such
Holder’s Registrable Securities in any registration statement pursuant to this Section 2.2.1
by giving written notice to the Company of such withdrawal.  The Company
shall include in such registration statement all such Registrable Securities so
requested to be included therein; provided, however, that the
Company may at any time withdraw or cease proceeding with any such registration
if it shall at the same time withdraw or cease proceeding with the registration
of all other equity securities originally proposed to be registered.  Notwithstanding this Section 2.2.1,
a Piggyback Registration shall not include any registration statement which is
initiated by the Company and for which the intended use of all of the net
proceeds by the Company is to cause CPE LLC to redeem Membership Units from one
or more Holders in exchange for cash.


 


2.2.2        Priority on Piggyback
Registrations.


 


(i)            With respect to any
Piggyback Registration filed during the first three years following the
completion of the Initial Public Offering:


 


(a)           If a Piggyback Registration
is an underwritten offering and was initiated by the Company, the Company shall
include in such registration statement (a) first, RTEA and/or KMS’s
Registrable Securities requested to be included in such registration, (b) second,
the securities the Company proposes to sell, and (c) third, any other
securities requested to be included in such registration.


 


(ii)           With respect to any
Piggyback Registration filed after the time period specified in Section 2.2.2(i) above:


 


(a)           If a Piggyback Registration
is an underwritten offering and was initiated by the Company, the Company shall
include in such registration statement the securities to be included therein by
the Company and any other securities requested to be included therein, pro rata
on the basis of the number of shares to be so registered.


 


(iii)          If a Piggyback Registration
is an underwritten offering and was initiated by a security holder of the
Company, the Company shall include in such registration statement (a) first,
the Registrable Securities requested to be included in such registration, (b) second,
the securities requested to be included therein by the security holders
requesting such registration, pro rata among the holders of such securities on
the basis of the number of securities owned by each such holder, and (c) third,
any other securities requested to be included in such registration (including
securities to be sold for the account of the Company).


 


(iv)          No Holder may participate in
any registration statement in respect of a Piggyback Registration hereunder
unless such Holder (x) agrees to sell such Holder’s Registrable Securities
on the basis provided in any underwriting arrangements approved by the Company
and (y) completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents and delivers all
opinions, each in customary form, reasonably required under the terms of such
underwriting arrangements; provided, however, that 


 


7

















 


no such Holder shall be required to make any
representations or warranties in connection with any such registration other
than representations and warranties as to (a) such Holder’s ownership of
his or its Registrable Securities to be sold or transferred free and clear of
all encumbrances, (b) such Holder’s power and authority to effect such
transfer, and (c) such matters pertaining to compliance with securities
laws as may be reasonably requested; provided, further, however,
that the obligation of such Holder to indemnify pursuant to any such
underwriting arrangements shall be several, not joint and several, among such
Holders selling Registrable Securities, and the liability of each such Holder
will be in proportion to, and provided, further, that such
liability will be limited to, the net amount received by such Holder from the
sale of his or its Registrable Securities pursuant to such registration; and provided,
further, that any such indemnification provided by a Holder selling
Registrable Securities shall be limited to indemnification for information
provided by such Holder specifically for inclusion in the registration
statement.


 


2.2.3        Selection of Underwriters.


 


(i)            In the event of any
Piggyback Registration pursuant to Section 2.2.2(i), RTA (if RTEA
and/or KMS are participating) (a) may select one or more investment
banking firms to manage the offering, and (b) may select one or more
investment banking firms to participate in any underwriting syndicate, provided,
however, that RTA shall cooperate in good faith with the Company to
select the investment banking firms to participate in such underwriting
syndicate and such investment banking firms shall be reasonably acceptable to
the Company.


 


(ii)           In the event of any
Piggyback Registration pursuant to Section 2.2.2(ii) that is
an underwritten offering initiated by the Company, (a) the Company may
select one or more investment banking firms to manage the offering, and (b) the
Holders of a majority of the Registrable Securities (including for purposes of
this Section 2.2.3(ii) any shares of the Company’s Common
Stock held by the Company to be included in such registration statement)
included in such Piggyback Registration may select one or more investment
banking firms to participate in any underwriting syndicate, provided, however,
that such Holders shall cooperate in good faith with the Company to select the
investment banking firms to participate in such underwriting syndicate and such
investment banking firms shall be reasonably acceptable to the Holders and the
Company.


 


2.3.          SEC Form S-3.  The Company shall use its reasonable best
efforts to become eligible to use Form S-3 and, after becoming eligible to
use Form S-3, shall use its reasonable best efforts to remain so
eligible.  Once the Company becomes
eligible to use Form S-3 (or any successor form), then RTA  may require the Company to cause Demand
Registrations to be filed on Form S-3 (or any successor form) (a “Shelf  Registration”).  If the Company is not then eligible under the
Securities Act to use Form S-3, Demand Registrations shall be filed on the
form for which the Company then qualifies.


 


2.4.          Holdback Agreements.


 


(i)            The Company shall not and
shall use its reasonable best efforts to cause its officers and directors not
to effect any public sale or distribution of the equity securities of the
Company, or any securities convertible into or exchangeable or exercisable for
such 


 


8

















 


securities (other than any public sale or
distribution pursuant to a plan that complies with Rule 10b5-1 under the
Exchange Act), during the ten (10) days prior to and during the 90-day
period beginning on the effective date of any registration statement in
connection with a Demand Registration (other than a Shelf Registration), a
Piggyback Registration or any registered underwritten public offering of the
equity securities of the Company in which the Holders participate, except
pursuant to registrations on Form S-4 or Form S-8 or any successor
form or unless the underwriters managing any such public offering on Form S-4
or Form S-8 otherwise agree; provided, however, that if (1) during
the last seventeen (17) days of any such 90-day period, the Company
releases earnings results or material news or a material event relating to the
Company occurs or (2) prior to the expiration of any such ten (10) day
or 90-day period, the Company announces that it will release earnings results
during the 16-day period beginning on the last day of such ten (10) day or
90-day period, then, in each case, such ten (10) day or 90-day period will
be extended until the expiration of the 18-day period beginning on the date of
release of the earnings results or the occurrence of the material news or
material event, as applicable, unless the underwriters managing any such public
offering waives, in writing, such extension.


 


(ii)           If any Holders of
Registrable Securities notify the Company in writing that they intend to effect
an underwritten sale of Registrable Securities registered pursuant to a Shelf
Registration pursuant to Article 2 hereof, the Company shall not and shall
use its reasonable best efforts to cause its officers and directors not to
effect any public sale or distribution of the equity securities of the Company,
or any securities convertible into or exchangeable or exercisable for its
equity securities, during the ten (10) days prior to and during the 90-day
period beginning on the date such notice is received, except pursuant to
registrations on Form S-4 or Form S-8 or any successor form or unless
the underwriters managing any such public offering otherwise agree; provided,
however, that if (1) during the last seventeen (17) days of
any such 90-day period, the Company releases earnings results or material news
or a material event relating to the Company occurs or (2) prior to the
expiration of any such 90-day period, the Company announces that it will
release earnings results during the 16-day period beginning on the last day of
such 90-day period, then, in each case, such 90-day period will be extended
until the expiration of the 18-day period beginning on the date of release of
the earnings results or the occurrence of the material news or material event,
as applicable, unless the underwriters managing any such public offering
waives, in writing, such extension.


 


(iii)          For so long as RTEA, KMS or
any of their Affiliates holds, in the aggregate, more than twenty-percent of
the outstanding Equity Interests, each Holder agrees, in the event of an
underwritten offering by the Company (whether for the account of the Company or
otherwise) in which such Holder has a right to participate, not to offer, sell,
contract to sell or otherwise dispose of any Registrable Securities, or any
securities convertible into or exchangeable or exercisable for such securities,
including any sale pursuant to Rule 144 under the Securities Act (except
as part of such underwritten offering), during the ten (10) days prior to,
and during the 90-day period (or such lesser period as the lead or managing
underwriters may require) beginning on, the effective date of the registration
statement for such underwritten offering (or, in the case of an offering
pursuant to an effective shelf registration statement pursuant to Rule 415,
the pricing date for such underwritten offering); provided, however,
that if (1) during the last seventeen (17) days of any 90-day period,
the Company releases earnings results or material news or a material event
relating to the Company occurs or (2) prior to the 


 


9

















 


expiration of any 90-day period, the Company
announces that it will release earnings results during the 16-day period
beginning on the last day of such 90-day period, then in each case such 90-day
period will be extended until the expiration of the 18-day period beginning on
the date of release of the earnings results or the occurrence of the material
news or material event, as applicable, unless the underwriters managing any
such public offering waives, in writing, such extension.


 


2.5.          Registration Procedures.  Whenever any Holder has requested that any
Registrable Securities be registered pursuant to this Agreement, the Company
will use its reasonable best efforts to complete the registration and the sale
of such Registrable Securities in accordance with the intended method of
disposition thereof within the time periods set forth in this Agreement, and
pursuant thereto the Company will as promptly as practicable:


 


(i)            prepare and
file with the SEC, pursuant to Section 2.1.1(ii) with respect
to any Demand Registration, a registration statement on any appropriate form
under the Securities Act with respect to such Registrable Securities and use
its reasonable best efforts to cause such registration statement to become
effective, provided that as far in advance as practicable before filing such
registration statement or any amendment thereto, the Company will furnish to
the selling Holders copies of reasonably complete drafts of all such documents
prepared to be filed (including exhibits), and any such Holder shall have the
opportunity to object to any information contained therein and the Company will
make corrections reasonably requested by such Holder with respect to such
information prior to filing any such registration statement or amendment;


 


(ii)           except in the
case of a Shelf Registration, prepare and file with the SEC such amendments,
post-effective amendments, and supplements to such registration statement and
the prospectus used in connection therewith as may be necessary to keep such
registration statement effective for a period of not less than one hundred
eighty (180) days (or such lesser period as is necessary for the underwriters
in an underwritten offering to sell unsold allotments) and comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the sellers thereof set
forth in such registration statement;


 


(iii)          in the case of
a Shelf Registration, prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration statement
effective and to comply with the provisions of the Securities Act with respect
to the disposition of all Registrable Securities subject thereto for a period
ending on the date on which all the Registrable Securities subject thereto have
been sold pursuant to such registration statement;


 


(iv)          furnish to each
seller of Registrable Securities and the underwriters of the securities being
registered such number of copies of such registration statement, each amendment
and supplement thereto, the prospectus included in such registration statement
(including each preliminary prospectus), any issuer free writing prospectus,
any documents incorporated by reference therein and such other documents as
such seller or 


 


10

















 


underwriters
may reasonably request in order to facilitate the disposition of the
Registrable Securities owned by such seller or the sale of such securities by
such underwriters (it being understood that, subject to Section 2.6
and the requirements of the Securities Act and applicable state securities
laws, the Company consents to the use of the prospectus, any amendment or
supplement thereto and any issuer free writing prospectus by each seller and
the underwriters in connection with the offering and sale of the Registrable
Securities covered by the registration statement of which such prospectus,
amendment or supplement is a part);


 


(v)           use its
reasonable best efforts to register or qualify such Registrable Securities
under such other securities or “blue sky” laws of such jurisdictions as the
managing underwriter reasonably requests (or, in the event the registration
statement does not relate to an underwritten offering, as the holders of a
majority of such Registrable Securities may reasonably request); use its
reasonable best efforts to keep each such registration or qualification (or
exemption therefrom) effective during the period in which such registration
statement is required to be kept effective; and do any and all other acts and
things which may be reasonably necessary or advisable to enable each seller to
consummate the disposition of the Registrable Securities owned by such seller in
such jurisdictions (provided, however, that the Company will not
be required to (A) qualify generally to do business in any jurisdiction
where it would not otherwise be required to qualify but for this subparagraph
or (B) consent to general service of process in any such jurisdiction);


 


(vi)          promptly notify
each seller and each underwriter and (if requested by any such Person) confirm
such notice in writing (A) when a registration statement or any issuer
free writing prospectus used in connection therewith, a prospectus or any
prospectus supplement or post-effective amendment has been filed and, with
respect to a registration statement or any post-effective amendment, when the
same has become effective, (B) of the issuance by any state securities or
other regulatory authority of any order suspending the qualification or
exemption from qualification of any of the Registrable Securities under state
securities or “blue sky” laws or the initiation of any proceedings for that
purpose, and (C) of the happening of any event which makes any statement
made in a registration statement or related prospectus or issuer free writing
prospectus untrue or which requires the making of any changes in such
registration statement, prospectus, issuer free writing prospectus or documents
so that they 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, as promptly as practicable
thereafter, prepare and file with the SEC and furnish a supplement or amendment
to such prospectus or additional issuer free writing prospectus so that, as
thereafter deliverable to the purchasers of such Registrable Securities, such
prospectus will not contain any untrue statement of a material fact or omit a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;


 


(vii)         permit any
selling Holder, which in such Holder’s sole and exclusive judgment, might
reasonably be deemed to be an underwriter or a controlling person of the
Company, to participate in the preparation of such registration or comparable
statement 


 


11

















 


and
to require the insertion therein of material, furnished to the Company in
writing, which in the reasonable judgment of such Holder and its counsel should
be included;


 


(viii)        make reasonably
available members of management of the Company, as selected by the Holders of a
majority of the Registrable Securities included in such registration, for
assistance in the selling effort relating to the Registrable Securities covered
by such registration, including, but not limited to, the participation of such
members of the Company’s management in live or recorded road show
presentations;


 


(ix)           otherwise use
its reasonable best efforts to comply with all applicable rules and
regulations of the SEC, including the Securities Act and the Exchange Act and
the rules and regulations promulgated thereunder, and make generally
available to the Company’s securityholders an earnings statement satisfying the
provisions of Section 11(a) of the Securities Act no later than
ninety (90) days after the end of the twelve (12) month period beginning with
the first day of the Company’s first fiscal quarter commencing after the
effective date of a registration statement, which earnings statement shall
cover said twelve (12) month period, and which requirement will be deemed to be
satisfied if the Company timely files complete and accurate information on
Forms 10-Q, 10-K and 8-K under the Exchange Act and otherwise complies with Rule 158
under the Securities Act;


 


(x)            if requested by
the managing underwriter or any seller promptly incorporate in a prospectus
supplement or post-effective amendment or prepare an issuer free writing
prospectus including such information as the managing underwriter or any seller
reasonably requests to be included therein, including, without limitation, with
respect to the Registrable Securities being sold by such seller, the purchase
price being paid therefor by the underwriters and with respect to any other
terms of the underwritten offering of the Registrable Securities to be sold in
such offering, and promptly make all required filings of such prospectus
supplement or post-effective amendment or issuer free writing prospectus;


 


(xi)           as promptly as
practicable after filing with the SEC of any document which is incorporated by
reference into a registration statement (in the form in which it was
incorporated), deliver a copy of each such document to each seller unless
available on the SEC’s Electronic Data Gathering and Retrieval System (EDGAR)
or any successor system;


 


(xii)          cooperate with the sellers and the managing
underwriter to facilitate the timely preparation and delivery of certificates
(which shall not bear any restrictive legends unless required under applicable
law) representing securities sold under any registration statement, and enable
such securities to be in such denominations and registered in such names as the
managing underwriter or such sellers may request and keep available and make
available to the Company’s transfer agent prior to the effectiveness of such
registration statement a supply of such certificates;


 


(xiii)         promptly make available for inspection by any
seller, any underwriter participating in any disposition pursuant to any
registration statement, and any attorney, 


 


12

















 


accountant or other agent or representative retained by any such seller
or underwriter (collectively, the “Inspectors”),
all financial and other records, pertinent corporate documents and properties
of the Company, as shall be reasonably necessary to enable them to exercise
their due diligence responsibility, and cause the Company’s officers, directors
and employees to supply all information requested by any such Inspector in
connection with such registration statement;


 


(xiv)        furnish to each seller and underwriter a signed
counterpart of (A) an opinion or opinions of counsel to the Company, and (B) a
comfort letter or comfort letters from the Company’s independent registered
public accountants, each in customary form and covering such matters of the
type customarily covered by opinions or comfort letters, as the case may be, as
the sellers or managing underwriter reasonably requests (each such opinion and
comfort letter to be addressed to both the seller and underwriter, if
reasonably possible);


 


(xv)         use its reasonable best efforts to cause the
Registrable Securities included in any registration statement to be listed on
each securities exchange, if any, on which similar securities issued by the
Company are then listed;


 


(xvi)        provide a transfer agent and registrar for all
Registrable Securities registered hereunder;


 


(xvii)       cooperate with each seller and each underwriter
participating in the disposition of such Registrable Securities and their
respective counsel in connection with any filings required to be made with the
Financial Industry Regulatory Authority;


 


(xviii)      during the period when the prospectus is required to
be delivered under the Securities Act, promptly file all documents required to
be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of
the Exchange Act;


 


(xix)         notify each seller of Registrable Securities
promptly of any request by the SEC for the amending or supplementing of such
registration statement or prospectus or for additional information;


 


(xx)          enter into such agreements (including underwriting
agreements in the managing underwriter’s customary form) as are customary in
connection with an underwritten registration; and


 


(xxi)         advise each seller of such Registrable Securities,
promptly after it shall receive notice or obtain knowledge thereof, of the
issuance of any stop order by the SEC suspending the effectiveness of such
registration statement or the initiation or threatening of any proceeding for
such purpose and promptly use its reasonable best efforts to prevent the
issuance of any stop order or to obtain its withdrawal at the earliest possible
moment if such stop order should be issued.


 


2.6.          Suspension of Dispositions.  Each
Holder agrees by acquisition of any Registrable Securities that, upon receipt
of any notice (a “Suspension
Notice”) from the Company of the 


 


13

















 


happening of any event of
the kind described in Section 2.5(vi)(C) such Holder will
forthwith discontinue disposition of Registrable Securities until such Holder’s
receipt of the copies of the supplemented or amended prospectus, or until it is
advised in writing (the “Advice”) by
the Company that the use of the prospectus may be resumed, and has received
copies of any additional or supplemental filings which are incorporated by
reference in the prospectus, and, if so directed by the Company, such Holder
will deliver to the Company all copies, other than permanent file copies then
in such Holder’s possession, of the prospectus covering such Registrable
Securities current at the time of receipt of such notice (any such period
during which disposition of Registrable Securities is suspended, a “Suspension  Period”);
provided, however, that the Company may only exercise its rights
under this Section 2.6, considered together with any Blackout
Period, for no more than one hundred and twenty (120) days in the aggregate
during any calendar year.  In the event the Company shall give any such
notice, the time period regarding the effectiveness of registration statements
set forth in Sections 2.5(ii) and 2.5(iii) hereof shall
be extended by the number of days during the period from and including the date
of the giving of the Suspension Notice to and including the date when each
seller of Registrable Securities covered by such registration statement shall
have received the copies of the supplemented or amended prospectus or the
Advice.  The Company shall use its reasonable best efforts and take such
actions as are reasonably necessary to render the Advice as promptly as
practicable.


 


2.7.          Registration Expenses.


 


2.7.1        Demand Registrations.  All reasonable, out-of-pocket fees and
expenses incident to any Demand Registration including, without limitation, the
Company’s performance of or compliance with this Article 2, all
registration and filing fees, all fees and expenses associated with filings
required to be made with the Financial Industry Regulatory Authority (“FINRA”), as may be required by the rules and
regulations of the FINRA, fees and expenses of compliance with securities or
“blue sky” laws (including reasonable fees and disbursements of counsel in
connection with “blue sky” qualifications of the Registrable Securities),
rating agency fees, printing expenses (including expenses of printing
certificates for the Registrable Securities in a form eligible for deposit with
the Depository Trust Company and of printing prospectuses if the printing of
prospectuses is requested by a Holder of Registrable Securities), messenger and
delivery expenses, the fees and expenses incurred in connection with any
listing or quotation of the Registrable Securities, fees and expenses of
counsel for the Company and its independent certified public accountants
(including the expenses of any special audit or “cold comfort” letters required
by or incident to such performance), and the fees and expenses of any special
experts, including mining experts, retained by the Company in connection with
such registration will be borne by RTEA and/or KMS and the Company such that
RTEA and/or KMS will bear seventy-five percent (75%) and the Company will bear
twenty-five percent (25%) of such fees and expenses; provided, however,
that any underwriting discounts, commissions or fees attributable to the sale
of the Registrable Securities will be borne by RTEA and/or KMS.


 


2.7.2        Piggyback Registrations.  All fees and expenses incident to any
Piggyback Registration including, without limitation, the Company’s performance
of or compliance with this Article 2, all registration and filing
fees, all fees and expenses associated with filings required to be made with the
FINRA, as may be required by the rules and regulations of the FINRA, fees
and expenses of compliance with securities or “blue sky” laws (including 


 


14

















 


reasonable fees and disbursements of counsel in connection
with “blue sky” qualifications of the Registrable Securities), rating agency
fees, printing expenses (including expenses of printing certificates for the
Registrable Securities in a form eligible for deposit with the Depository Trust
Company and of printing prospectuses), messenger and delivery expenses, the
fees and expenses incurred in connection with any listing or quotation of the
Registrable Securities, fees and expenses of counsel for the Company and its
independent certified public accountants (including the expenses of any special
audit or “cold comfort” letters required by or incident to such performance),
the fees and expenses of any special experts, including mining experts,
retained by the Company in connection with such registration, and the fees and
expenses of other persons retained by the Company, will be borne by the Company
(unless paid by a security holder that is not a Holder for whose account the
registration is being effected) whether or not any registration statement
becomes effective; provided, however, that any underwriting
discounts, commissions or fees attributable to the sale of the Registrable
Securities will be borne by the Holders pro rata on the basis of the number of
shares so sold.


 


2.8.          Indemnification.


 


2.8.1        CPE
LLC will indemnify and hold harmless each seller of Registrable Securities and,
in the case of an underwritten offering, each underwriter, their respective
partners, members, directors, officers, affiliates and each person, if any, who
controls such seller or underwriter, as applicable, within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act against any losses, claims, damages or
liabilities, joint or several, to which such seller may become subject, under
the Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any registration statement, prospectus, preliminary prospectus or any issuer
free writing prospectus, or 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 light of the circumstances
under which they were made, not misleading, and will reimburse such seller for
any legal or other expenses reasonably incurred by such seller in connection
with investigating or defending any loss, claim, damage, liability, action,
litigation, investigation or proceeding whatsoever (whether or not such seller
is a party thereto), whether threatened or commenced, and in connection with
the enforcement of this provision with respect to any of the above as such
expenses are incurred; provided, however,
that CPE LLC will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with written
information furnished to the Company by any such seller specifically for use
therein; provided, the liability of each such seller of
Registrable Securities will be in proportion to, and will be limited to, the
net amount received by such seller from the sale of Registrable Securities
pursuant to such registration statement; provided, however, that
such seller of Registrable Securities shall not be liable in any such case to
the extent that prior to the filing of any such registration statement or
prospectus or amendment thereof or supplement thereto, such seller has
furnished in writing to the Company information expressly for use in such
registration statement or prospectus or any amendment thereof or supplement
thereto which corrected or made not misleading information previously furnished
to the Company.


 


15
















 


Insofar as the foregoing
indemnity agreement may permit indemnification for liabilities under the
Securities Act of any person who is an underwriter or a partner or controlling
person of an underwriter within the meaning of Section 15 of the
Securities Act and who, at the date of this Agreement, is a director, officer
or controlling person of the Company or CPE LLC, CPE LLC has been advised that
in the opinion of the SEC such provisions may contravene federal public policy
as expressed in the Securities Act and may therefore be unenforceable.  In the event that a claim for indemnification
under such agreement for any such liabilities (except insofar as such agreement
provides for the payment by CPE LLC of expenses incurred or paid by a director,
officer or controlling person in the successful defense of any action, suit or
proceeding) is asserted by such a person, CPE LLC will submit to a court of appropriate
jurisdiction (unless in the opinion of counsel for CPE LLC the matter has
already been settled by controlling precedent) the question of whether or not
indemnification by it for such liabilities is against public policy as
expressed in the Securities Act and therefore unenforceable, and CPE LLC will
be governed by the final adjudication of such issue.


 


2.8.2       Each seller of
Registrable Securities will severally and not jointly indemnify and hold
harmless the Company, each of its directors and each of its officers who signs
a Registration Statement and each person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act against any losses, claims, damages or liabilities to which
such indemnified party may become subject, under the Securities Act, the
Exchange Act, or other federal or state statutory law or regulation or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in any registration
statement, prospectus, preliminary prospectus or any issuer free writing
prospectus or arise out of or are based upon the omission or the alleged
omission of a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case 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 written
information furnished to the Company by such seller specifically for use
therein, and will reimburse any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending against
any such loss, claim, damage, liability, action, litigation, investigation or proceeding
whatsoever (whether or not such indemnified party is a party thereto), whether
threatened or commenced, based upon any such untrue statement or omission, or
any such alleged untrue statement or omission as such expenses are incurred.


 


2.8.3       Promptly after
receipt by an indemnified party under this Section 2.8 of notice of
the commencement of any action, such indemnified party will, if a claim in
respect thereof is to be made against an indemnifying party under Section 2.8.1
or Section 2.8.2 above, notify the indemnifying party of the
commencement thereof; but the failure to
notify the indemnifying party shall not relieve it from any liability that it
may have under Section 2.8.1 or Section 2.8.2
above except to the extent that it has
been materially prejudiced (through the forfeiture of substantive rights or
defenses) by such failure; and provided further that the failure to notify the
indemnifying party shall not relieve it from any liability that it may have to
an indemnified party otherwise than under Section 2.8.1 or Section 2.8.2
above.  In case any such action is
brought against any indemnified party and it notifies an indemnifying party of
the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the 


 


16

















 


extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party will
not be liable to such indemnified party under this Section 2.8 for
any legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation.  No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement (i) includes
an unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action and (ii) does not
include a statement as to, or an admission of, fault, culpability or a failure
to act by or on behalf of an indemnified party.


 


2.8.4        If the
indemnification provided for in this Section 2.8 is unavailable or
insufficient to hold harmless an indemnified party under Section 2.8.1
or Section 2.8.2 above although applicable in accordance with its
terms, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in Section 2.8.1 or Section 2.8.2
above (i) in such proportion as is appropriate to reflect the relative
fault of the indemnifying party on the one hand and the indemnified party on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative faults referred to in clause
(i) above but also the relative benefits received by the indemnifying
party on the one hand and the indemnified party on the other as well as any
other relevant equitable considerations. In connection with any registration
statement filed with the SEC by the Company, the relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by such indemnifying
party or indemnified party and the parties’ relative intent, knowledge, access
to information and opportunity to correct or prevent such untrue statement or
omission.  The relative benefits received
by the indemnifying party on the one hand and the indemnified party on the
other shall be deemed to be in the same proportion as the total net proceeds
from the offering of securities registered thereunder (before deducting
expenses) received by the indemnifying party bear to the aggregate public
offering price of the securities registered thereunder. The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this Section 2.8.4 shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim which is the subject of this Section 2.8.4. 
Notwithstanding the provisions of this Section 2.8.4, no Holder
shall be required to contribute an amount greater than the dollar amount by
which the net proceeds received by such Holder with respect to the sale of any
Registrable Securities exceeds the amount of damages which such Holder has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission.  No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Holders’ obligations in this Section 


 


17

















 


2.8.4 to contribute shall be
several in proportion to the amount of Registrable Securities registered by
them and not joint.


 


If
indemnification is available under this Section 2.8, the
indemnifying parties shall indemnify each indemnified party to the full extent
provided in Section 2.8.1 and Section 2.8.2 without
regard to the relative fault of said indemnifying party or indemnified party or
any other equitable consideration provided for in this Section 2.8.4
subject, in the case of the Holders, to the limited dollar amounts set forth in
Section 2.8.2.


 


2.8.5        The indemnification and
contribution provided for under this Agreement will remain in full force and
effect regardless of any investigation made by or on behalf of the indemnified
party or any officer, director, or controlling Person of such indemnified party
and will survive the transfer of securities.


 


2.8.6        Any indemnification
obligation of CPE LLC arising under this Section 2.8 will be
calculated and payable in accordance with Section 6.1 of the Master
Separation Agreement, dated November 19, 2009, among the Company, CPE LLC,
RTA, RTEA, KMS and the other parties thereto (the “Master
Separation Agreement”).


 


2.9.          Transfer of Registration Rights.  Any of the rights and obligations of RTA,
RTEA or KMS or any Holder under this Agreement may be assigned, in the
discretion of RTA, RTEA or KMS or any such Holder, without the consent of the
Company, to any Person (i) to whom RTEA or KMS or any Holder sells,
exchanges or otherwise transfers Registrable Securities or Membership Units and
(ii) who agrees in writing to be subject to and bound by all the terms and
conditions of this Agreement; provided, however, that the
obligations of RTEA and KMS pursuant to Section 2.7.1 may be
assigned only with the Company’s consent.


 


2.10.        Rule 144.  The Company will file the reports required to
be filed by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the SEC thereunder (or, if the Company is not required
to file such reports, will, upon the request of the Holders, make publicly
available other information) and will take such further action as the Holders
may reasonably request, all to the extent required from time to time to enable
the Holders to sell the Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by (i) Rule 144
under the Securities Act, as such rule may be amended from time to time or
(ii) any similar rule or regulation hereafter adopted by the
SEC.  Upon the reasonable request of any
Holder, the Company will deliver to such parties a written statement as to
whether it has complied with such requirements and will, at its expense,
forthwith upon the request of any such Holder, deliver to such Holder a
certificate, signed by the Company’s principal financial officer, stating (a) the
Company’s name, address and telephone number (including area code), (b) the
Company’s Internal Revenue Service identification number, (c) the
Company’s SEC file number, (d) the number of shares of each class of
capital stock outstanding as shown by the most recent report or statement
published by the Company, and (e) whether the Company has filed the
reports required to be filed under the Exchange Act for a period of at least
ninety (90) days prior to the date of such certificate and in addition has
filed the most recent annual report required to be filed thereunder.


 


18

















 


2.11.        Preservation of Rights.  The
Company will not (i) grant any registration rights to third parties which
are more favorable than or inconsistent with the rights granted hereunder or (ii) enter
into any agreement, take any action, or permit any change to occur, with
respect to its securities that violates or subordinates the rights expressly
granted to the Holders in this Agreement.


 


ARTICLE 3


MISCELLANEOUS


 


3.1.          Notices.  Any notice, instruction, direction or demand
required under the terms of this Agreement shall be in writing and shall be
duly given upon delivery, if delivered by hand, facsimile transmission or mail
(with postage prepaid), to the following addresses:


 


If
to the Company or CPE LLC, to:


 


Cloud Peak Energy Inc.

General Counsel

505 S. Gillette Avenue

Gillette, Wyoming 82716

(307) 687-6000

Fax: (307) 687-6059


 


If
RTA, RTEA or KMS, to:


 


Rio Tinto America Inc.

Legal Department

4700 Daybreak Parkway

South Jordan, Utah 84095

(801) 204-2000

Fax: (801) 204-2892


 


With a copy to (which shall not constitute notice):


 


Chief Executive Officer

4700 Daybreak Parkway

South Jordan, Utah 84095

(801) 204-2000

Fax: (801) 204-2892


 


or
to such other addresses or telecopy numbers as may be specified by like notice
to the other parties.


 


19

















 


If
to any other Holder, the address indicated for such Holder in the Company’s
stock transfer records with copies, so long as RTEA or KMS owns any Registrable
Securities or Membership Units, to RTA as provided above.


 


Any
notice or communication hereunder shall be deemed to have been given or made as
of the date so delivered if personally delivered; when answered back, if
telexed; when receipt is acknowledged, if telecopied; and five (5) calendar
days after mailing if sent by registered or certified mail (except that a
notice of change of address shall not be deemed to have been given until
actually received by the addressee).


 


Failure
to mail a notice or communication to a Holder or any defect in it shall not
affect its sufficiency with respect to other Holders.  If a notice or
communication is mailed in the manner provided above, it is duly given, whether
or not the addressee receives it.


 


3.2.          Authority.  Each of the parties hereto represents on
behalf of itself as follows: (i) it has the requisite corporate or other
power and authority and has taken all corporate or other action necessary in
order to execute, deliver and perform this Agreement and to consummate the
transactions contemplated hereby, (ii) this Agreement has been duly
executed and delivered by it and constitutes a valid and binding agreement of
it enforceable in accordance with the terms hereof.


 


3.3.          Governing Law.


 


3.3.1        This Agreement is to be
construed in accordance with and governed by the internal laws of the State of
New York without giving effect to any choice of law rule that would cause
the application of the laws of any jurisdiction other than the internal laws of
the State of New York to the rights and duties of the parties.


 


3.3.2        Each party hereby
irrevocably and unconditionally consents to submit to the sole and exclusive
jurisdiction of the United States District Court for the Southern District of
New York or, if such court does not have jurisdiction, the Supreme Court of the
State of New York sitting in New York County (the “New York
Courts”) for any legal action or other legal proceeding arising
out of or relating to this Agreement, or the negotiation, validity or
performance of this Agreement, or the transactions contemplated thereby (and
agrees not to commence any legal action or other legal proceeding relating
thereto except in such courts), including to enforce any settlement, order or
award.  Each party hereto:


 


(i)            consents to service of
process in any such proceeding in any manner permitted by the laws of the State
of New York, and agrees that service of process by registered or certified
mail, return receipt requested, at its address specified pursuant to Section 3.1
is reasonably calculated to give actual notice;


 


(ii)           agrees that the New York
Courts shall be deemed to be a convenient forum; and


 


(iii)          waives and agrees not to
assert (by way of motion, as a defense or otherwise), in any such legal
proceeding commenced in the New York Courts that such party is 


 


20

















 


not subject personally to the jurisdiction of such
court, that such legal proceeding has been brought in an inconvenient forum,
that the venue of such proceeding is improper or that this Agreement or the
subject matter hereof or thereof may not be enforced in or by such court.


 


3.3.3        In the event of any action
or other proceeding relating to this Agreement or the enforcement of any
provision of this Agreement, the prevailing party (as determined by the court)
shall be entitled to payment by the non-prevailing party of all costs and expenses
(including reasonable attorneys’ fees) incurred by the prevailing party,
including any costs and expenses incurred in connection with any challenge to
the jurisdiction or the convenience or propriety of venue of proceedings before
the New York Courts.


 


3.3.4        Each of the parties hereto
hereby waives to the fullest extent permitted by applicable law any right it
may have to a trial by jury with respect to any legal action or other legal
proceeding directly or indirectly arising out of, under or in connection with
this Agreement or the transactions contemplated hereby.  Each of the parties hereto (a) certifies
that no representative, agent or attorney of any other party has represented,
expressly or otherwise, that such other party would not, in the event of
litigation, seek to enforce that foregoing waiver and (b) acknowledges
that it and the other parties hereto have been induced to enter into this
Agreement and the transactions contemplated by this Agreement, as applicable,
by, among other things, the mutual waivers set forth in this Section 3.3.4.


 


3.4.          Successors and Assigns.  Except
as otherwise expressly provided herein, this Agreement shall be binding upon
and benefit the Company, each Holder, and their respective successors and
assigns.


 


3.5.          Severability.  If any terms or other provision of this
Agreement shall be determined by a court, administrative agency or arbitrator
to be invalid, illegal or unenforceable, such invalidity, illegality or
unenforceability shall not render the entire Agreement invalid. Rather, this
Agreement shall be construed as if not containing the particular invalid,
illegal or unenforceable provision, and all other provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner materially adverse to either party. Upon such determination that any
term or other provision is invalid, illegal or unenforceable, the parties shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that the transactions contemplated hereby are fulfilled to the fullest extent
permitted under applicable law.


 


3.6.          Remedies.  Any dispute, controversy or claim arising out
of, or relating to, the transactions contemplated by this Agreement, or the
validity, interpretation, breach or termination of any provision of this
Agreement shall be resolved in accordance with Section 9.10 of the
Master Separation Agreement.


 


3.7.          Waivers.  A provision of this Agreement may be waived
only by a writing signed by the party or parties intended to be bound by the
waiver.  A Holder may waive a provision
of this Agreement that relates exclusively to their rights, remedies or
conditions under this Agreement that does not affect, directly or indirectly,
the rights of other Holders.  The Holders
of the majority of the then outstanding Registrable Securities may waive any
provision of this 


 


21

















 


Agreement so long as any Holder that does not
approve of such waiver is not affected by such waiver in a manner materially
worse than the approving Holders. A party is not prevented from enforcing any
right, remedy or condition in the party’s favor because of any failure or delay
in exercising any right or remedy or in requiring satisfaction of any
condition, except to the extent that the party specifically waives the same in
writing.  A written waiver given for one
matter or occasion is effective only in that instance and only for the purpose
stated.  A waiver once given is not to be
construed as a waiver for any other matter or occasion.  Any enumeration of a party’s rights and
remedies in this Agreement is not intended to be exclusive, and a party’s
rights and remedies are intended to be cumulative to the extent permitted by
law and include any rights and remedies authorized in law or in equity.


 


3.8.          Amendment.  This Agreement may not be amended or modified
in any respect except by a written agreement signed by the Company, CPE LLC,
RTEA (so long as RTEA owns any Registrable Securities or Membership Units), KMS
(so long as KMS owns any Registrable Securities or Membership Units) and the
Holders of a majority of the then outstanding Registrable Securities.


 


3.9.          Counterparts.  This Agreement may be executed in separate
counterparts, each of which shall be deemed an original and all of which, when
taken together, shall constitute one and the same agreement.  This Agreement may be executed by facsimile
signature.


 


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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first written above.


 


 


	
   

  	
  CLOUD PEAK ENERGY INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Colin Marshall

  
	
   

  	
  Name:
  Colin Marshall

  
	
   

  	
  Title:
  President and CEO

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CLOUD
  PEAK ENERGY RESOURCES LLC

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael Barrett

  
	
   

  	
  Name:
  Michael Barrett

  
	
   

  	
  Title:
  CFO

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  RIO TINTO AMERICA INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  James P. Berson

  
	
   

  	
  Name:
  James P. Berson

  
	
   

  	
  Title:
  Authorized Agent

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  RIO TINTO ENERGY AMERICA INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  James P. Berson

  
	
   

  	
  Name:
  James P. Berson

  
	
   

  	
  Title:
  Authorized Agent

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  KENNECOTT MANAGEMENT SERVICES COMPANY

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  James P. Berson

  
	
   

  	
  Name:
  James P. Berson

  
	
   

  	
  Title:
  Authorized Agent

  



 


[Signature page for Registration Rights Agreement (Equity)]


 


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