exv4w3






Exhibit 4.3




REGISTRATION RIGHTS AGREEMENT




     This REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of April 11, 2012, is
by and among Armstrong Energy, Inc., a Delaware corporation (the “Company”), and each of
the other parties identified on the signature pages hereto (the “Stockholders”).



     WHEREAS, the Company has agreed to provide registration rights with respect to the Registrable
Securities (as hereinafter defined), as set forth in this Agreement.



     NOW, THEREFORE, for and in consideration of the mutual agreements contained herein and for
other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
the parties hereto, intending to be legally bound hereby, agree as follows:



     Section 1. Definitions. As used in this Agreement, the following terms shall have the following meanings:



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



     “Demand Notice” shall have the meaning set forth in Section 3 hereof.



     “Demand Registration” shall have the meaning set forth in Section 3 hereof.



     “Demanding Qualified Holder Group” shall mean, with respect to any Demand
Registration, the Qualified Holder Group delivering the relevant Demand Notice.



     “Effectiveness Period” shall mean, with respect to any Shelf Registration Statement,
the period from the date the Shelf Registration Statement is declared effective by the SEC until
the earlier of:




	 	(i)	 	the sale of all of the Registrable Securities covered by such Shelf
Registration Statement pursuant to such Shelf Registration Statement or pursuant to
Rule 144 under the Securities Act or any similar provision then in effect; or
	 
	 	(ii)	 	the time at which all of the Registrable Securities covered by the Shelf
Registration Statement and not held by affiliates of the Company (as defined in Rule
144 under the Securities Act) are, in the opinion of counsel for the Company, eligible
for sale pursuant to Rule 144 (or any successor or analogous rule) under the Securities
Act.





     “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated thereunder.



     “Initial Public Offering” shall mean the first underwritten registered public offering
of Common Stock of the Company pursuant to a registration statement that has been declared
effective under the Securities Act, other than pursuant to a registration statement on Form S-4,
Form S-8, or any similar or successor form.



 









 





     “Losses” shall have the meaning set forth in Section 8 hereof.



     “Management Qualified Holder” shall mean each of J. Hord Armstrong, III and Martin D.
Wilson and any other Person who becomes a Management Qualified Holder pursuant to Section 12(c),
but only to the extent any such Person continues to hold Registrable Securities.



     “Person” shall mean an individual, partnership, corporation, limited partnership,
limited liability company, foreign limited liability company, trust, estate, corporation,
custodian, trustee-executor, administrator, nominee or entity in a representative capacity.



     “Partner Distribution” shall have the meaning set forth in Section 3(a)
hereof.



     “Piggyback Notice” shall have the meaning set forth in Section 4 hereof.



     “Piggyback Registration” shall have the meaning as set forth in Section 4
hereof.



     “Proceeding” shall mean an action, claim, suit, arbitration or proceeding (including,
without limitation, an investigation or partial proceeding, such as a deposition), whether
commenced or threatened.



     “Prospectus” shall mean the prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information previously omitted from a
prospectus filed as part of an effective Registration Statement in reliance upon Rule 430A, 430B or
430C promulgated under the Securities Act), as amended or supplemented by any prospectus
supplement, with respect to the terms of the offering of any portion of the Registrable Securities
covered by such Registration Statement, and all other amendments and supplements to the Prospectus,
including post-effective amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.



     “Qualified Holder Group” means (i) all of the Management Qualified Holders,
collectively or (ii) each of the Yorktown Qualified Holders.



     “Registrable Securities” shall mean, subject to the next succeeding sentence, the
shares of Common Stock held by any Stockholder on the date of this Agreement, including any shares
of Common Stock issued or distributed by way of dividend, stock split or other distribution in
respect of such shares. As to any particular Registrable Securities, once issued, such securities
shall cease to be Registrable Securities when (i) they are sold pursuant to an effective
Registration Statement under the Securities Act, (ii) they are sold pursuant to Rule 144 (or any
similar provision then in force under the Securities Act) and the transferee thereof does not
receive “restricted securities” as defined in Rule 144, (iii) they shall have ceased to be
outstanding, (iv) they have been sold in a private transaction in which the transferor’s rights
under this Agreement are not assigned to the transferee of the securities in accordance with
Section 12(c) hereof, or (v) they become eligible for resale pursuant to Rule 144 (or any similar
rule then in effect under the Securities Act). No Registrable Securities may be registered under
more than one (1) Registration Statement at any one time.



     “Registration Statement” shall mean any registration statement of the Company under
the Securities Act, including any Shelf Registration Statement, that permits the public offering of



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any of the Registrable Securities pursuant to the provisions of this Agreement, including the
Prospectus, amendments and supplements to such registration statement, including post-effective
amendments, all exhibits and all material incorporated by reference or deemed to be incorporated by
reference in such registration statement.




     “Rule 144” shall mean Rule 144 under the Securities Act, as such Rule may be amended
from time to time, or any similar rule or regulation hereafter adopted by the SEC.



     “SEC” shall mean the Securities and Exchange Commission or any successor agency having
jurisdiction under the Securities Act.



     “Securities Act” shall mean the Securities Act of 1933, as amended, and the rules and
regulations promulgated by the SEC thereunder.



     “Shelf Registration Statement” shall mean a Registration Statement filed pursuant to
Rule 415 of the Securities Act on Form S-3 (or any applicable successor form) that permits the
Company to incorporate by reference all of its filings under the Exchange Act.



     “Suspension Notice” shall have the meaning set forth in Section 6(b).



     “underwritten registration or underwritten offering” shall mean a registration in
which securities of the Company are sold to an underwriter for reoffering to the public.



     “Yorktown Qualified Holders” shall mean each of Yorktown Energy Partners VI, L.P.,
Yorktown Energy Partners VII, L.P., Yorktown Energy Partners VIII, L.P. and Yorktown Energy
Partners IX, L.P.



     Section 2. Holders of Registrable Securities. A Person is deemed to be a holder of Registrable Securities whenever such Person owns
Registrable Securities or holds an option, warrant or other right to purchase, or a security
convertible into, Registrable Securities, whether or not such acquisition or conversion has
actually been effected.



     Section 3. Demand Registration.



          (a) Requests for Registration. Each Qualified Holder Group shall have the right by delivering a written notice to the Company
(the “Demand Notice”) to require the Company to register, pursuant to the terms of this
Agreement under and in accordance with the provisions of the Securities Act, the number of
Registrable Securities requested to be so registered pursuant to the terms of this Agreement (a
“Demand Registration”); provided, however, that except for a Demand Notice relating to the
Management Demand (defined below), a Demand Notice may only be made if the sale of the Registrable
Securities requested to be registered by such Qualified Holder Group is reasonably expected to
result in aggregate gross cash proceeds in excess of $20,000,000. Following receipt of a Demand
Notice for a Demand Registration, the Company shall use its commercially reasonable efforts to file
a Registration Statement as promptly as practicable after such Demand Notice, and shall use its
commercially reasonable efforts to cause such Registration Statement to be declared effective under
the Securities Act as promptly as practicable after the filing thereof. Notwithstanding anything
herein to the contrary, the Company shall not have any obligation to file any Registration






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Statement pursuant to this Section 3 at any time (i) on or before the date that is twelve (12)
months after the closing of the Initial Public Offering, (ii) on or before 180 days after any other
registered underwritten offering of equity securities of the Company, or (iii) if the Company is
not otherwise eligible at such time to file a Registration Statement on Form S-3 (or any applicable
successor form).




     The Management Qualified Holders shall be entitled collectively to a maximum of one (1) Demand
Registration (the “Management Demand”) and the Yorktown Qualified Holders shall be entitled
collectively to a maximum of two (2) Demand Registrations. Notwithstanding any other provisions of
this Section 3, in no event shall more than one (1) Demand Registration occur during any
six-month period (measured from the effective date of the Registration Statement to the date of the
next Demand Notice) or within 180 days after the effective date of a Registration Statement filed
by the Company.



     No Demand Registration shall be deemed to have occurred for purposes of this Section
3(a) if the Registration Statement relating thereto does not become effective or is not
maintained effective for the period required pursuant to this Section 3(a), in which case
the Demanding Qualified Holder Group shall be entitled to an additional Demand Registration in lieu
thereof.



     Within ten (10) days after receipt by the Company of a Demand Notice, the Company shall give
written notice (the “Notice”) of such Demand Notice to all holders of Registrable
Securities and shall, subject to the provisions of Section 3(b) hereof, include in such
registration all Registrable Securities with respect to which the Company received written requests
for inclusion therein within ten (10) days after such Notice is given by the Company to such
holders.



     All requests made pursuant to this Section 3 will specify the amount of Registrable
Securities to be registered and the intended methods of disposition thereof.



     The Company shall use its commercially reasonable efforts to maintain the effectiveness of the
Registration Statement (except in the case of a Shelf Registration Statement) with respect to any
Demand Registration for a period of at least one hundred eighty (180) days after the effective date
thereof or such shorter period in which all Registrable Securities included in such Registration
Statement have actually been sold; provided, however, that such period shall be extended, if
reasonably practicable, for a period of time equal to the period the holders of Registrable
Securities refrain from selling any securities included in such Registration Statement at the
request of (x) an underwriter or (y) the Company pursuant to the provisions herein. The Company
shall use its commercially reasonable efforts to maintain the effectiveness of a Registration
Statement that constitutes a Shelf Registration Statement at all times during the Effectiveness
Period; provided, however, that any Holder of Registrable Securities that have been included in a
Shelf Registration Statement may request that such Registrable Securities be removed from such
Shelf Registration Statement, in which event the Company shall promptly either withdraw such Shelf
Registration Statement or file a post-effective amendment to such Shelf Registration Statement
removing such Registrable Securities.



     Notwithstanding anything contained herein to the contrary, the Company hereby agrees that (i)
each Shelf Registration Statement filed by the Company pursuant to this Section 3 shall
contain all language (including, without limitation, on the Prospectus cover page, the principal



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stockholders’ table and the plan of distribution) as may be reasonably requested by a Yorktown
Qualified Holder to allow for distribution to, and resale by, the direct and indirect partners,
investors or affiliated entities of a Yorktown Qualified Holder (a “Partner Distribution”)
and (ii) the Company shall, at the reasonable request of any Yorktown Qualified Holder seeking to
effect a Partner Distribution, file any Prospectus supplement or post-effective amendments and
otherwise take any action reasonably necessary to include such language, if such language was not
included in the initial Shelf Registration Statement, or revise such language if deemed necessary
by such Yorktown Qualified Holder to effect such Partner Distribution.




          (b) Priority on Demand Registration. If any of the Registrable Securities registered pursuant to a Demand Registration are to be sold
in a firm commitment underwritten offering, and the managing underwriter or underwriters advise the
holders of such securities in writing that, in its view, the total amount of Registrable Securities
proposed to be sold in such offering is such as to adversely affect the success of such offering
(including, without limitation, securities proposed to be included by other holders of securities
entitled to include securities in the Registration Statement pursuant to incidental or piggyback
registration rights), then the amount of securities to be offered (i) for the account of the
members of the Demanding Qualified Holder Group and any other holders of Registrable Securities and
(ii) for the account of all such other Persons (other than members of the Demanding Qualified
Holder Group) shall be reduced to the extent necessary to reduce the total amount of securities to
be included in such offering to the amount recommended by such managing underwriter or underwriters
by first reducing, or eliminating if necessary, all securities of the Company requested to be
included by such other Persons and then, if necessary, reducing the securities requested to be
included by the members of the Demanding Qualified Holder Group and any other holders of
Registrable Securities requesting such registration pro rata among such holders on the basis of the
percentage of the Registrable Securities requested to be included in such Registration Statement by
such holders. In connection with any Demand Registration to which the provisions of this
Section 3(b) apply, no securities other than Registrable Securities shall be covered by
such Demand Registration except as provided in Section 3(d)(ii) hereof, and such
registration shall not reduce the number of available Demand Registrations with respect to the
Demanding Qualified Holder Group under this Section 3 in the event that the Registration
Statement excludes more than 25% of the aggregate number of Registrable Securities that members of
the Demanding Qualified Holder Group requested be included.




          (c) Postponement of Demand Registration. The Company shall be entitled to postpone (but not more than once in any twelve-month period),
for a reasonable period of time not in excess of one hundred eighty (180) days, the filing of a
Registration Statement if the Company delivers to the members of the Demanding Qualified Holder
Group a certificate signed by both the principal executive officer and the principal financial
officer of the Company certifying that, in the good faith judgment of the Board of Directors of the
Company, such registration and offering would reasonably be expected to materially adversely affect
or materially interfere with any bona fide material financing of the Company or any material
transaction under consideration by the Company, or would render the Company unable to comply with
the requirements under the Securities Act or the Exchange Act, or would require disclosure of
information that has not been disclosed to the public, the premature disclosure of which would
materially adversely affect the Company. Such certificate shall contain a statement of the reasons
for such postponement and an approximation of the anticipated delay. The Persons






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receiving such certificate shall keep the information contained in such certificate confidential
subject to the same terms set forth in Section 6(q). If the Company shall so postpone the
filing of a Registration Statement, the Demanding Qualified Holder Group shall have the right to
withdraw the request for registration by giving written notice to the Company within thirty (30)
days of the anticipated termination date of the postponement period, as provided in the certificate
delivered thereto, and in the event of such withdrawal, such request shall not be counted for
purposes of the number of Demand Registrations to which the Qualified Holder Groups are entitled
pursuant to the terms of this Agreement.




          (d) Registration of Other Securities. Whenever the Company shall effect a Demand Registration pursuant to this Section 3 in
connection with an underwritten offering, no securities other than Registrable Securities shall be
included among the securities covered by such Demand Registration unless (i) the managing
underwriter of such offering shall have advised each holder of Registrable Securities requesting
such registration in writing that it believes that the inclusion of such other securities would not
adversely affect such offering or (ii) the inclusion of such other securities is approved by the
affirmative vote of the holders of at least a majority of the Registrable Securities included in
such Demand Registration by the members of the Demanding Qualified Holder Group.




     Section 4. Piggyback Registration.



          (a) Right to Piggyback. If, at any time after the Initial Public Offering, the Company proposes to file a registration
statement under the Securities Act with respect to an offering of Common Stock (other than a
registration statement (i) on Form S-4, Form S-8 or any successor forms thereto or (ii) filed
solely in connection with an exchange offer or any employee benefit or dividend reinvestment plan),
then, each such time, the Company shall give prompt written notice of such proposed filing at least
fifteen (15) days before the anticipated filing date (the “Piggyback Notice”) to all of the
holders of Registrable Securities. The Piggyback Notice shall offer such holders the opportunity to
include in such registration statement the number of Registrable Securities as each such holder may
request (a “Piggyback Registration”). Subject to Section 4(b) hereof, the Company
shall include in each such Piggyback Registration all Registrable Securities with respect to which
the Company has received written requests for inclusion therein within thirty (30) days after the
Piggyback Notice has been given to the applicable holder. The eligible holders of Registrable
Securities shall be permitted to withdraw all or part of the Registrable Securities from a
Piggyback Registration at any time thirty (30) days prior to the effective date of such Piggyback
Registration. The Company shall not be required to maintain the effectiveness of the Registration
Statement for a Piggyback Registration beyond the earlier to occur of (i) 120 days after the
effective date thereof and (ii) consummation of the distribution by the holders of the Registrable
Securities included in such Registration Statement.




          (b) Priority on Piggyback Registrations. The Company shall use reasonable efforts to cause the managing underwriter or underwriters of a
proposed underwritten offering to permit holders of Registrable Securities requested to be included
in the registration for such offering to include all such Registrable Securities on the same terms
and conditions as any other shares of capital stock, if any, of the Company included therein.
Notwithstanding the foregoing, if the managing underwriter or underwriters of such underwritten
offering have informed the






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Company in writing that it is their good faith opinion that the total amount of securities that
such holders, the Company and any other Persons having rights to participate in such registration,
intend to include in such offering is such as to adversely affect the success of such offering,
then the amount of securities to be offered (i) for the account of holders of Registrable
Securities and (ii) for the account of all such other Persons (other than the Company and holders
of Registrable Securities) shall be reduced to the extent necessary to reduce the total amount of
securities to be included in such offering to the amount recommended by such managing underwriter
or underwriters by first reducing, or eliminating if necessary, all securities of the Company
requested to be included by such other Persons (other than the Company and holders of Registrable
Securities) and then, if necessary, reducing the securities requested to be included by the holders
of Registrable Securities requesting such registration pro rata among such holders on the basis of
the percentage of the Registrable Securities requested to be included in such Registration
Statement by such holders.




     Notwithstanding anything contained herein to the contrary, the Company hereby agrees that (i)
any Piggyback Registration shall contain all language (including, without limitation, on the
Prospectus cover page, the principal stockholders’ table and the plan of distribution) as may be
reasonably requested by a holder of Registrable Securities to allow for a Partner Distribution and
(ii) the Company shall, at the reasonable request of any holder of Registrable Securities seeking
to effect a Partner Distribution, file any Prospectus supplement or post-effective amendments and
otherwise take any action reasonably necessary to include such language, if such language was not
included in the initial Registration Statement, or revise such language if deemed reasonably
necessary by such holder of Registrable Securities to effect such Partner Distribution.



     Section 5. Restrictions on Public Sale by Holders of Registrable Securities. Each holder of Registrable Securities agrees, in connection with the Initial Public Offering and
any underwritten offering made pursuant to a Registration Statement filed pursuant to Section
3 or Section 4 hereof (whether or not such holder elected to include Registrable
Securities in such Registration Statement), if requested (pursuant to a written notice) by the
managing underwriter or underwriters in an underwritten offering, not to effect any public sale or
distribution of any of the Company’s securities (except as part of such underwritten offering),
including a sale pursuant to Rule 144, or to give any Demand Notice during the period commencing on
the date of the request (which shall be no earlier than fourteen (14) days prior to the expected
“pricing” of such offering) and continuing for not more than 180 days (with respect to the Initial
Public Offering) or 120 days (with respect to any underwritten public offering other than the
Initial Public Offering made prior to the second anniversary of the Initial Public Offering and
thereafter 60 days rather than 120) after the date of the Prospectus pursuant to which such public
offering shall be made or such shorter period as is required by the managing underwriter, provided,
however, that all officers and directors of the Company must be subject to similar restrictions.



     Section 6. Registration Procedures. If and whenever the Company is required to use its commercially reasonable efforts to effect the
registration of any Registrable Securities under the Securities Act as provided in Section
3 and Section 4 hereof, the Company shall effect such registration to permit the sale
of such Registrable Securities in accordance with the intended method or methods of disposition
thereof, and pursuant thereto the Company shall cooperate in the sale of the securities and shall,
as soon as is reasonably practicable:



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          (a) Prepare and file with the SEC a Registration Statement or Registration Statements on such
form which shall be available for the offer and sale of the Registrable Securities by the holders
thereof in accordance with the intended method or methods of distribution thereof (including
without limitation, a Partner Distribution), and use its commercially reasonable efforts to cause
such Registration Statement to become effective and to remain effective as provided herein;
provided, however, that before filing a Registration Statement or Prospectus or any amendments or
supplements thereto (including documents that would be incorporated or deemed to be incorporated
therein by reference), the Company shall furnish or otherwise make available to the holders of the
Registrable Securities covered by such Registration Statement, their counsel and the managing
underwriters, if any, copies of all such documents proposed to be filed. The Company shall not file
any such Registration Statement or Prospectus or any amendments or supplements thereto (including
such documents that, upon filing, would be incorporated or deemed to be incorporated by reference
therein) with respect to a Demand Registration to which the holders of a majority of the
Registrable Securities covered by such Registration Statement, their counsel, or the managing
underwriters, if any, shall reasonably object, in writing, on a timely basis, unless, in the
opinion of the Company, such filing is necessary to comply with applicable law.




          (b) If such Registration Statement is a Shelf Registration Statement:





     (i) Subject to any notice by the Company in accordance with this Section 6(b)
of the existence of any fact or event of the kind described in Section 6(d)(vi), use
its commercially reasonable efforts to keep the Shelf Registration Statement
continuously effective during the Effectiveness Period; upon the occurrence of any
event that would cause the Shelf Registration Statement or the Prospectus contained
therein (A) to contain a material misstatement or omission or (B) not to be
effective and usable for resale of the Registrable Securities covered thereby during
the Effectiveness Period, the Company shall file promptly an appropriate amendment
to the Shelf Registration Statement, a supplement to the Prospectus or a report
filed with the SEC pursuant to Section 13(a), 13(c), 14 or 15 (d) of the Exchange
Act, in the case of clause (A) of this Section 6(b)(i), correcting any such
misstatement or omission, and, in the case of either clause (A) or (B) of this
Section 6(b)(i), use its commercially reasonable efforts to cause such amendment to
be declared effective and the Shelf Registration Statement and the related
Prospectus to become usable for their intended purposes as soon as practicable
thereafter.




     (ii) Notwithstanding Section 6(b)(i) hereof, the Company may suspend the
effectiveness of the Shelf Registration Statement (each such period, a “Suspension
Period”):




     (A) if a majority of the Company’s board of directors, in good faith,
determines that (1) the offer or sale of any shares of Common Stock would
materially impede, delay or interfere with any proposed financing, offer or
sale of securities, acquisition, merger, tender offer, business combination,
corporate reorganization, consolidation or other significant transaction
involving the Company, (2) after the advice of counsel, the



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sale of the shares of Common Stock covered by the Shelf Registration
Statement would require disclosure of non-public material information not
otherwise required to be disclosed under applicable law, and (3) either (x)
the Company has a bona fide business purpose for preserving the
confidentiality of the proposed transaction, (y) disclosure would have a
material adverse effect on the Company or the Company’s ability to
consummate the proposed transaction, or (z) the proposed transaction renders
the Company unable to comply with requirements of the SEC; or




     (B) if a majority of the Company’s board of directors, in good faith,
determines that the Company is required by law, rule or regulation to
supplement the Shelf Registration Statement or file a post-effective
amendment to the Shelf Registration Statement in order to incorporate
information into the Shelf Registration Statement for the purpose of (1)
including in the Shelf Registration Statement any Prospectus required under
Section 10(a)(3) of the Securities Act, (2) reflecting in the Prospectus
included in the Shelf Registration Statement any facts or events arising
after the effective date of the Shelf Registration Statement (or the most
recent post-effective amendment) that, individually or in the aggregate,
represents a fundamental change in the information set forth in the
Prospectus, or (3) including in the Prospectus included in the Shelf
Registration Statement any material information with respect to the plan of
distribution not disclosed in the Shelf Registration Statement or any
material change to such information.


Upon the occurrence of any event described in clauses (A) and (B) of this Section 6(b)(ii), the
Company shall give notice to each Demanding Qualified Holder with respect to such Shelf
Registration Statement that the availability of the Shelf Registration Statement is suspended and,
upon actual receipt of any such notice, each such Demanding Qualified Holder agrees not to sell any
Registrable Securities pursuant to the Shelf Registration Statement until such Demanding Qualified
Holder’s receipt of copies of the supplemented or amended Prospectus provided for this Section
6(b). The Suspension Period shall not exceed 90 days in any 120-day period (except as a result of
a review of any post-effective amendment by the SEC prior to declaring any post-effective amendment
to the Shelf Registration Statement effective provided the Company has used its commercially
reasonable efforts to cause such post-effective amendment to be declared effective); provided, that
Suspension Periods shall not exceed an aggregate of 120 days in any 12-month period. The Company
shall not be required to specify in the written notice to the Qualified Holders the nature of the
event giving rise to the Suspension Period.




          (c) Prepare and file with the SEC such amendments and post-effective amendments to each
Registration Statement as may be necessary to keep such Registration Statement continuously
effective during the period provided herein with respect to the disposition of all securities
covered by such Registration Statement; and cause the related Prospectus to be supplemented by any
Prospectus supplement as may be necessary to comply with the provisions of the Securities Act with
respect to the disposition of the securities covered by such Registration Statement, and as so
supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the
Securities Act.







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          (d) Notify each selling holder of Registrable Securities, its counsel and the managing
underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in
writing, (which notice pursuant to clauses (ii) through (v) below shall be accompanied by an
instruction to suspend the use of the Prospectus until the Company shall have remedied the basis
for such suspension if the effectiveness of a Shelf Registration Statement has been suspended
pursuant to Section 6 (b)), (i) when 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, (ii) of any request by the SEC or any other Federal
or state governmental authority for amendments or supplements to a Registration Statement or
related Prospectus or for additional information, (iii) of the issuance by the SEC of any stop
order suspending the effectiveness of a Registration Statement or the initiation of any proceedings
for that purpose, (iv) if at any time the representations and warranties of the Company contained
in any agreement (including any underwriting agreement) contemplated by Section 6(p) below
cease to be true and correct, (v) of the receipt by the Company of any notification with respect to
the suspension of the qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for
such purpose and (vi) of the happening of any event that makes any statement made in such
Registration Statement or related Prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue in any material respect or that requires the making of any
changes in such Registration Statement, Prospectus or documents so that, in the case of the
Registration Statement, it will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the statements therein,
not misleading, and that, in the case of the Prospectus, it will not contain any untrue statement
of a material fact or omit to state any material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not misleading.




          (e) Use its commercially reasonable efforts to obtain the withdrawal of any order suspending
the effectiveness of a Registration Statement, or the lifting of any suspension of the
qualification (or exemption from qualification) of any of the Registrable Securities for sale in
any jurisdiction.




          (f) If requested by the managing underwriters, if any, or the holders of a majority of the
then-outstanding Registrable Securities being sold in connection with an underwritten offering,
promptly include in a Prospectus supplement or post-effective amendment such information as the
managing underwriters, if any, and such holders may reasonably request in order to permit the
intended method of distribution of such securities and make all required filings of such Prospectus
supplement or such post-effective amendment as soon as practicable after the Company has received
such request; provided, however, that the Company shall not be required to take any actions under
this Section 6(f) that are not, in the opinion of counsel for the Company, in compliance
with applicable law.




          (g) Furnish to each selling holder of Registrable Securities, its counsel and each managing
underwriter, if any, without charge, at least one (1) conformed copy of the Registration Statement,
the Prospectus and Prospectus supplements, if applicable, and each post-effective amendment
thereto, including financial statements (but excluding schedules, all






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documents incorporated or deemed to be incorporated therein by reference, and all exhibits,
unless requested in writing by such holder, counsel or underwriter).




          (h) Deliver to each selling holder of Registrable Securities, its counsel, and the
underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses (including
each form of Prospectus) and each amendment or supplement thereto as such Persons may reasonably
request in connection with the distribution of the Registrable Securities; and the Company, subject
to the last paragraph of this Section 6, hereby consents to the use of such Prospectus and
each amendment or supplement thereto by each of the selling holders of Registrable Securities and
the underwriters, if any, in connection with the offering and sale of the Registrable Securities
covered by such Prospectus and any such amendment or supplement thereto.




          (i) Prior to any public offering of Registrable Securities, use its commercially reasonable
efforts to register or qualify or cooperate with the selling holders of Registrable Securities, the
underwriters, if any, and their respective counsel in connection with the registration or
qualification (or exemption from such registration or qualification) of such Registrable Securities
for offer and sale under the securities or “Blue Sky” laws of such jurisdictions within the United
States as any seller or underwriter reasonably requests in writing and to keep each such
registration or qualification (or exemption therefrom) effective during the period such
Registration Statement is required to be kept effective and to take any other action that may be
necessary or advisable to enable such holders of Registrable Securities to consummate the
disposition of such Registrable Securities in such jurisdiction; provided, however, that the
Company will not be required to (i) qualify generally to do business in any jurisdiction where it
is not then so qualified or (ii) take any action that would subject it to general service of
process in any such jurisdiction where it is not then so subject.




          (j) Cooperate with the selling holders of Registrable Securities and the managing
underwriters, if any, to facilitate the timely preparation and delivery of certificates (not
bearing any legends) representing Registrable Securities to be sold after receiving written
representations from each holder of such Registrable Securities that the Registrable Securities
represented by the certificates so delivered by such holder will be transferred in accordance with
the Registration Statement, and enable such Registrable Securities to be in such denominations and
registered in such names as the managing underwriters, if any, or holders may request at least two
(2) business days prior to any sale of Registrable Securities in a firm commitment public offering,
but in any other such sale, within ten (10) business days prior to having to issue the securities.




          (k) Use its commercially reasonable efforts to cause the Registrable Securities covered by the
Registration Statement to be registered with or approved by such other governmental agencies or
authorities within the United States, except as may be required solely as a consequence of the
nature of such selling holder’s business, in which case the Company will cooperate in all
reasonable respects with the filing of such Registration Statement and the granting of such
approvals, as may be necessary to enable the seller or sellers thereof or the underwriters, if any,
to consummate the disposition of such Registrable Securities.







11









 








          (l) Upon the occurrence of any event contemplated by Section 6(d)(vi) above, prepare a
supplement or post-effective amendment to the Registration Statement or a supplement to the related
Prospectus or any document incorporated or deemed to be incorporated therein by reference, or file
any other required document so that, as thereafter delivered to the purchasers of the Registrable
Securities being sold thereunder, such Prospectus will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were made, not misleading.




          (m) Prior to the effective date of the Registration Statement relating to the Registrable
Securities, provide a CUSIP number for the Registrable Securities.




          (n) Provide and cause to be maintained a transfer agent and registrar for all Registrable
Securities covered by such Registration Statement from and after a date not later than the
effective date of such Registration Statement.




          (o) Use its commercially reasonable efforts to cause all shares of Registrable Securities
covered by such Registration Statement to be authorized to be quoted on the Nasdaq Global Market or
listed on another national securities exchange if shares of the particular class of Registrable
Securities are at that time quoted on the Nasdaq Global Market or listed on such exchange, as the
case may be.




          (p) Enter into such agreements (including an underwriting agreement in form, scope and
substance as is customary in underwritten offerings) and take all such other actions reasonably
requested by the holders of a majority of the Registrable Securities being sold in connection
therewith (including those reasonably requested by the managing underwriters, if any) to expedite
or facilitate the disposition of such Registrable Securities, and in such connection, whether or
not an underwriting agreement is entered into and whether or not the registration is an
underwritten registration, (i) make such representations and warranties to the holders of such
Registrable Securities and the underwriters, if any, with respect to the business of the Company
and its subsidiaries, and the Registration Statement, Prospectus and documents, if any,
incorporated or deemed to be incorporated by reference therein, in each case, in form, substance
and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if
true, confirm the same if and when requested, (ii) use its commercially reasonable efforts to
furnish to the selling holders of such Registrable Securities opinions of counsel to the Company
and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the managing underwriters, if any, and counsels to the selling holders of the
Registrable Securities), addressed to each selling holder of Registrable Securities and each of the
underwriters, if any, covering the matters customarily covered in opinions requested in
underwritten offerings and such other matters as may be reasonably requested by such counsel and
underwriters, (iii) use its commercially reasonable efforts to obtain “cold comfort” letters and
updates thereof from the independent certified public accountants of the Company (and, if
necessary, any other independent certified public accountants of any subsidiary of the Company or
of any business acquired by the Company for which financial statements and financial data are, or
are required to be, included in the Registration Statement) who have certified the financial
statements included in such Registration Statement, addressed to each selling holder of Registrable
Securities (unless such accountants






12









 







shall be prohibited from so addressing such letters by applicable standards of the accounting
profession) and each of the underwriters, if any, such letters to be in customary form and covering
matters of the type customarily covered in “cold comfort” letters in connection with underwritten
offerings, (iv) if an underwriting agreement is entered into, the same shall contain
indemnification provisions and procedures that are reasonably acceptable to the managing
underwriters, and (v) deliver such documents and certificates as may be reasonably requested by the
holders of a majority of the Registrable Securities being sold, their counsel and the managing
underwriters, if any, to evidence the continued validity of the representations and warranties made
pursuant to Section 6(p)(i) above and to evidence compliance with any customary conditions
contained in the underwriting agreement or other agreement entered into by the Company. The above
shall be done at each closing under such underwriting or similar agreement, or as and to the extent
required thereunder.




          (q) Make available for inspection by a representative of the selling holders of Registrable
Securities, any underwriter participating in any such disposition of Registrable Securities, if
any, and any attorneys or accountants retained by such selling holders or underwriter, at the
offices where normally kept, during reasonable business hours, all financial and other records,
pertinent corporate documents and properties of the Company and its subsidiaries, and cause the
officers, directors and employees of the Company and its subsidiaries to supply all information in
each case reasonably requested by any such representative, underwriter, attorney or accountant in
connection with such Registration Statement; provided, however, that any information that is not
generally publicly available at the time of delivery of such information shall be kept confidential
by such Persons unless (i) disclosure of such information is required by court or administrative
order, (ii) disclosure of such information, in the opinion of counsel to such Person, is required
by law or (iii) such information becomes generally available to the public other than as a result
of a disclosure or failure to safeguard by such Person. In the case of a proposed disclosure
pursuant to (i) or (ii) above, such Person shall be required to give the Company written notice of
the proposed disclosure prior to such disclosure and, if requested by the Company, assist the
Company in seeking to prevent or limit the proposed disclosure. Without limiting the foregoing, no
such information shall be used by such Person as the basis for any market transactions in
securities of the Company or its subsidiaries in violation of law.




          (r) Comply with all applicable rules and regulations of the SEC and make available to its
security holders earning statements satisfying the provisions of Section 11(a) of the Securities
Act and Rule 158 thereunder, or any similar rule promulgated under the Securities Act, no later
than forty-five (45) days after the end of any twelve-month period (or ninety (90) days after the
end of any twelve-month period if such period is a fiscal year) (i) commencing at the end of any
fiscal quarter in which Registrable Securities are sold to underwriters in a firm commitment or
best efforts underwritten offering and (ii) if not sold to underwriters in such an offering,
commencing on the first day of the first fiscal quarter of the Company after the effective date of
a Registration Statement, which statements shall cover one of said twelve-month periods.




          (s) Cause its officers to use their commercially reasonable efforts to support the marketing
of the Registrable Securities covered by the Registration Statement (including, without limitation,
participation in “road shows”) taking into account the Company’s business






13









 







needs; provided, that such officers’ travel expenses shall be reimbursed by the Company in
accordance with its applicable policies and procedures.




     The Company may require each seller of Registrable Securities as to which any registration is
being effected to furnish to the Company in writing such information required in connection with
such registration regarding such seller and the distribution of such Registrable Securities as the
Company may, from time to time, reasonably request in writing and the Company may exclude from such
registration the Registrable Securities of any seller who unreasonably fails to furnish such
information within a reasonable time after receiving such request.



     Each holder of Registrable Securities agrees if such holder has Registrable Securities covered
by such Registration Statement that, upon receipt of any notice from the Company of the happening
of any event of the kind described in Section 6(d)(ii), Section 6(d)(iii),
Section 6(d)(v) or Section 6(d)(vi) hereof, such holder will forthwith discontinue
disposition of such Registrable Securities covered by such Registration Statement or Prospectus
until such holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 6(l) hereof, or until it is advised in writing by the Company that the use of the
applicable Prospectus may be resumed, and has received copies of any additional or supplemental
filings that are incorporated or deemed to be incorporated by reference in such Prospectus;
provided, however that the Company shall extend the time periods under Section 3 with
respect to the length of time that the effectiveness of a Registration Statement must be maintained
by the amount of time the holder is required to discontinue disposition of such securities.



     Section 7. Registration Expenses. All reasonable fees and expenses incident to the performance of or compliance with this
Agreement by the Company (including, without limitation, (i) all registration and filing fees
(including, without limitation, fees and expenses (A) with respect to filings required to be made
with the Financial Industry Regulatory Authority (FINRA) and (B) of compliance with securities or
Blue Sky laws, including, without limitation, any fees and disbursements of counsel for the
underwriters in connection with Blue Sky qualifications of the Registrable Securities pursuant to
Section 6(i)), (ii) printing expenses (including, without limitation, expenses of printing
certificates for 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 the managing
underwriters, if any, or by the holders of a majority of the Registrable Securities included in any
Registration Statement), (iii) messenger, telephone and delivery expenses of the Company, (iv) fees
and disbursements of counsel for the Company, (v) expenses of the Company incurred in connection
with any road show, (vi) fees and disbursements of all independent certified public accountants
referred to in Section 6(p)(iii) hereof (including, without limitation, the expenses of any
“cold comfort” letters required by this Agreement) and any other persons, including special experts
retained by the Company and (vii) fees and disbursements of one counsel for the members of the
Qualified Holder Group whose Registrable Securities are included in a Registration Statement, which
counsel shall be selected by the holders of a majority of the Registrable Securities held by the
Qualified Holder Group included in such Registration Statement) shall be borne by the Company
whether or not any Registration Statement is filed or becomes effective. In addition, the Company
shall pay its internal expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal, accounting or marketing duties), the expense of any annual
audit,



14









 




the fees and expenses incurred in connection with the listing of the securities to be registered on
any securities exchange on which similar securities issued by the Company are then listed and
rating agency fees and the fees and expenses of any Person, including special experts, retained by
the Company.




     The Company shall not be required to pay (i) fees and disbursements of any counsel retained by
any holder of Registrable Securities or by any underwriter (except as set forth in clauses 7(i)(B)
and 7(vii)), (ii) any underwriter’s fees (including discounts, commissions or fees of underwriters,
selling brokers, dealer managers or similar securities industry professionals) relating to the
distribution of the Registrable Securities or (iii) any other expenses of the holders of
Registrable Securities not specifically required to be paid by the Company pursuant to the first
paragraph of this Section 7.



     Section 8. Indemnification.



          (a) Indemnification by the Company. The Company shall, without limitation as to time, indemnify and hold harmless, to the fullest
extent permitted by law, each holder of Registrable Securities whose Registrable Securities are
covered by a Registration Statement or Prospectus, the officers, directors, partners, members,
managers, stockholders, accountants, attorneys, agents and employees of each of them, each Person
who controls each such holder (within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act) and the officers, directors, partners, members, managers, stockholders,
accountants, attorneys, agents and employees of each such controlling person, each underwriter, if
any, and each Person who controls (within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act) such underwriter, from and against any and all losses, claims,
damages, liabilities, costs (including, without limitation, costs of preparation and reasonable
attorneys’ fees and any legal or other fees or expenses incurred by such party in connection with
any investigation or Proceeding), expenses, judgments, fines, penalties, charges and amounts paid
in settlement (collectively, “Losses”), as incurred, arising out of or based upon any
untrue statement (or alleged untrue statement) of a material fact contained in any Prospectus,
Prospectus supplement, offering circular, or other document (including any related Registration
Statement, notification, or the like) incident to any such registration, qualification, or
compliance, or based on any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements therein not misleading, or any
violation by the Company of the Securities Act or any rule or regulation thereunder applicable to
the Company and relating to action or inaction required of the Company in connection with any such
registration, qualification, or compliance, and will reimburse each such holder, each of its
officers, directors, partners, members, managers, stockholders, accountants, attorneys, agents and
employees and each person controlling such holder, each such underwriter, and each person who
controls any such underwriter, for any legal and any other expenses reasonably incurred in
connection with investigating and defending or settling any such claim, loss, damage, liability, or
action, provided that the Company will not be liable in any such case to the extent that any such
claim, loss, damage, liability, or expense arises out of or is based on any untrue statement or
omission by such holder or underwriter, but only to the extent, that such untrue statement (or
alleged untrue statement) or omission (or alleged omission) is made in such Registration Statement,
Prospectus, Prospectus supplement, offering circular, or other document in reliance upon and in
conformity with written information furnished to the Company by such holder. It is agreed that the






15









 







indemnity agreement contained in this Section 8(a) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability, or action if such settlement is effected
without the consent of the Company (which consent shall not be unreasonably withheld).




          (b) Indemnification by Holder of Registrable Securities. In connection with any Registration Statement in which a holder of Registrable Securities is
participating, such holder of Registrable Securities shall furnish to the Company in writing such
information as the Company reasonably requests for use in connection with any Registration
Statement or Prospectus and agrees to indemnify, to the fullest extent permitted by law, severally
and not jointly, the Company, its directors, officers, accountants, attorneys, agents and
employees, each Person who controls the Company (within the meaning of Section 15 of the Securities
Act and Section 20 of the Exchange Act), and the directors, officers, partners, members, managers,
stockholders, accountants, attorneys, agents or employees of such controlling persons, and each
underwriter, if any, attorneys and agents of such underwriter, if any, and each person who controls
such underwriter (within the meaning of Section 15 of the Securities Act and Section 20 of the
Exchange Act), if any, from and against all Losses arising out of or based on any untrue statement
of a material fact contained in any such Registration Statement, Prospectus, Prospectus supplement,
offering circular, or other document, or any omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading, and will reimburse
the Company and such directors, officers, partners, members, managers, stockholders, accountants,
attorneys, employees, agents, persons, underwriters, or control persons for any legal or any other
expenses reasonably incurred in connection with investigating or defending any such claim, loss,
damage, liability, or action, in each case to the extent, but only to the extent, that such untrue
statement or omission is made in such Registration Statement, Prospectus, Prospectus supplement,
offering circular, or other document in reliance upon and in conformity with written information
furnished to the Company by such holder specifically for use in connection with the preparation of
such Registration Statement, Prospectus, Prospectus supplement, offering circular or other
document; provided, however, that the obligations of such holder hereunder shall not apply to
amounts paid in settlement of any such claims, losses, damages, or liabilities (or actions in
respect thereof) if such settlement is effected without the consent of such holder (which consent
shall not be unreasonably withheld); and provided, further, that the liability of each selling
holder of Registrable Securities hereunder shall be limited to the net proceeds received by such
selling holder from the sale of Registrable Securities covered by such Registration Statement. In
addition, insofar as the foregoing indemnity relates to any such untrue statement or omission made
in the preliminary Prospectus but eliminated or remedied in the amended Prospectus on file with the
SEC at the time the Registration Statement becomes effective or in the final Prospectus filed
pursuant to applicable rules of the SEC or in any supplement or addendum thereto and such new
Prospectus is delivered to the underwriter, the indemnity agreement herein shall not inure to the
benefit of such underwriter, any controlling person of such underwriter and their respective
Representatives, if a copy of the final Prospectus filed pursuant to such rules, together with all
supplements and addenda thereto was not furnished to the Person asserting the loss, liability,
claim or damage at or prior to the time such furnishing is required by the Securities Act.




          (c) Conduct of Indemnification Proceedings. If any Person shall be entitled to indemnity hereunder (an “indemnified party”), such
indemnified party shall give prompt notice to the party from which such indemnity is sought (the
“indemnifying party”) of any claim or of






16









 







the commencement of any Proceeding with respect to which such indemnified party seeks
indemnification or contribution pursuant hereto; provided, however, that the delay or failure to so
notify the indemnifying party shall not relieve the indemnifying party from any obligation or
liability except to the extent that the indemnifying party has been prejudiced by such delay or
failure. The indemnifying party shall have the right, exercisable by giving written notice to an
indemnified party promptly after the receipt of written notice from such indemnified party of such
claim or Proceeding, to, unless in the indemnified party’s reasonable judgment a conflict of
interest between such indemnified and indemnifying parties may exist in respect of such claim,
assume, at the indemnifying party’s expense, the defense of any such claim or Proceeding, with
counsel reasonably satisfactory to such indemnified party; provided, however, that an indemnified
party shall have the right to employ separate counsel in any such claim or Proceeding and to
participate in the defense thereof, but the fees and expenses of such counsel shall be at the
expense of such indemnified party unless: (i) the indemnifying party agrees to pay such fees and
expenses or (ii) the indemnifying party fails promptly to assume the defense of such claim or
Proceeding or fails to employ counsel reasonably satisfactory to such indemnified party; in which
case the indemnified party shall have the right to employ counsel and to assume the defense of such
claim or proceeding; provided, however, that the indemnifying party shall not, in connection with
any one such claim or Proceeding or separate but substantially similar or related claims or
Proceedings in the same jurisdiction, arising out of the same general allegations or circumstances,
be liable for the fees and expenses of more than one firm of attorneys (together with appropriate
local counsel) at any time for all of the indemnified parties, or for fees and expenses that are
not reasonable. Whether or not such defense is assumed by the indemnifying party, such indemnified
party will not be subject to any liability for any settlement made without its consent (but such
consent will not be unreasonably withheld). The indemnifying party shall not consent to entry of
any judgment or enter into any settlement that does not include as an unconditional term thereof
the giving by the claimant or plaintiff to such indemnified party of a release, in form and
substance reasonably satisfactory to the indemnified party, from all liability in respect of such
claim or litigation for which such indemnified party would be entitled to indemnification
hereunder.




          (d) Contribution. If the indemnification provided for in this Section 8 is unavailable to an indemnified
party in respect of any Losses (other than in accordance with its terms), then each applicable
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 Losses, in such proportion as is
appropriate to reflect the relative fault of the indemnifying party, on the one hand, and such
indemnified party, on the other hand, in connection with the actions, statements or omissions that
resulted in such Losses as well as any other relevant equitable considerations. The relative fault
of such indemnifying party, on the one hand, and indemnified party, on the other hand, shall be
determined by reference to, among other things, whether any action in question, including any
untrue or alleged untrue statement of a material fact or omission or alleged omission to state a
material fact, has been taken by, or 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 any such action, statement or omission.




     The parties hereto agree that it would not be just and equitable if contribution pursuant to
this Section 8(d) were determined by pro rata allocation or by any other method of
allocation that



17









 




does not take account of the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 8(d), an indemnifying party that
is a selling holder of Registrable Securities shall not be required to contribute any amount in
excess of the amount by which the net proceeds from the sale of the Registrable Securities sold by
such indemnifying party exceeds the amount of any damages that such indemnifying party 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.




          (e) Notwithstanding the foregoing, to the extent that the provisions on indemnification and
contribution contained in the underwriting agreement entered into in connection with the
underwritten public offering are in conflict with the foregoing provisions, the provisions in the
underwriting agreement shall control.




     Section 9. Rule 144. After the Initial Public Offering, the Company shall file the reports required to be filed by it
under the Securities Act and the Exchange Act, and will take such further action as any holder of
Registrable Securities may reasonably request, all to the extent required from time to time to
enable such holder to sell Registrable Securities without registration under the Securities Act
within the limitations of the exemption provided by Rule 144. Upon the request of any holder of
Registrable Securities, the Company shall deliver to such holder a written statement as to whether
it has complied with such requirements.



     Section 10. Underwritten Registrations. If any Demand Registration is an underwritten offering, the Company shall have the right to
select the investment banker or investment bankers and managers to administer the offering, subject
to approval by the holders of a majority of the Registrable Securities covered by such Demand
Registration, which approval shall not to be unreasonably withheld or delayed. The Company shall
have the right to select the investment banker or investment bankers and managers to administer any
Piggyback Registration.



     No Person may participate in any underwritten registration hereunder unless such Person (i)
agrees to sell the Registrable Securities it desires to have covered by the Demand Registration on
the basis provided in any underwriting arrangements in customary form and (ii) completes and
executes all questionnaires, powers of attorney, custody agreements, indemnities, underwriting
agreements and other documents required under the terms of such underwriting arrangements, provided
that such Person shall not be required to make any representations or warranties other than those
related to title and ownership of shares and as to the accuracy and completeness of statements made
in a Registration Statement, Prospectus, offering circular, or other document in reliance upon and
in conformity with written information furnished to the Company or the managing underwriter by such
Person.



     Section 11. Limitation on Subsequent Registration Rights. From and after the date of this Agreement, the Company shall not, without the prior written
consent of the holders of at least a majority of the then-outstanding Registrable Securities, enter
into any agreement with any holder or prospective holder of any securities of the Company giving
such holder or prospective holder any registration rights the terms of which (i) are equivalent to
or more favorable than the registration rights granted to the holders of Registrable Securities
hereunder, or (ii) would reduce



18









 




the amount of Registrable Securities the holders can include in any registration filed
pursuant to Section 3 hereof, unless such rights are subordinate to those of the holders of
Registrable Securities.




     Section 12. Miscellaneous.



          (a) Amendments and Waivers. The provisions of this Agreement, including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures from the provisions hereof may not
be given, unless the Company has obtained the written consent of holders of at least a majority of
the then-outstanding Registrable Securities; provided, however, that in no event shall the
obligations of any holder of Registrable Securities be materially increased or the rights of any
holder of Registrable Securities be adversely affected (without similarly adversely affecting the
rights of all holders of Registrable Securities), except upon the written consent of such holder.
Notwithstanding the foregoing, a waiver or consent to depart from the provisions hereof with
respect to a matter that relates exclusively to the rights of holders of Registrable Securities
whose securities are being sold pursuant to a Registration Statement and that does not directly or
indirectly affect the rights of other holders of Registrable Securities may be given by holders of
at least a majority of the Registrable Securities being sold by such holders pursuant to such
Registration Statement.




          (b) Notices. All notices required to be given hereunder shall be in writing and shall be deemed to be duly
given if personally delivered, telecopied and confirmed, or mailed by certified mail, return
receipt requested, or overnight delivery service with proof of receipt maintained, at the following
address (or any other address that any such party may designate by written notice to the other
parties):




     if to the Company:


7733 Forsyth Boulevard, Suite 1625

St. Louis, Missouri 63105

Fax: __________________

Attn: Martin D. Wilson, President




     and a copy to:


Thompson & Knight LLP

One Arts Plaza

1722 Routh Street, Suite 1500

Dallas, Texas 75201

Fax: (214) 999-9001

Attn: Ann Marie Cowdrey




     If to any holder of Registrable Securities, at such Person’s address as set forth on the
records of the Company. Any such notice shall, if delivered personally, be deemed received upon
delivery; shall, if delivered by telecopy, be deemed received on the first business day following
confirmation; shall, if delivered by overnight delivery service, be deemed received the first
business day after being sent; and shall, if delivered by mail, be deemed received upon the earlier



19









 




of actual receipt thereof or five (5) business days after the date of deposit in the United
States mail.




          (c) Successors and Assigns; Status. 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 acquired, directly or
indirectly, from a Stockholder, including without limitation, parties who have received Registrable
Securities pursuant to a Partner Distribution; provided, however, that such successor or assign
shall not be entitled to such rights unless the successor or assign shall have executed and
delivered to the Company an Addendum Agreement substantially in the form of Exhibit A
hereto promptly following the acquisition of such Registrable Securities. Successors and assigns of
a member of a Qualified Holder Group shall be deemed a Management Qualified Holder or a member of
another Qualified Holder Group, as applicable, for purposes of this Agreement. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any Person other than the
parties hereto and their respective permitted successors and assigns any legal or equitable right,
remedy or claim under, in or in respect of this Agreement or any provision herein contained.




          (d) Counterparts. This Agreement may be executed by facsimile signature and in two (2) or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute one and the same
instrument.




          (e) Headings. The section and paragraph headings contained in this Agreement are for reference purposes only
and shall not affect in any way the meaning or interpretation of this Agreement.




          (f) Governing Law. This agreement shall be governed by and construed in accordance with the laws of the State of
Delaware (without giving effect to the choice of law principles thereof).




          (g) Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of
competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions set forth herein shall remain in full force and effect and
shall in no way be affected, impaired or invalidated, and the parties hereto shall use their
commercially reasonable efforts to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term, provision, covenant or
restriction. It is hereby stipulated and declared to be the intention of the parties that they
would have executed the remaining terms, provisions, covenants and restrictions without including
any of such that may be hereafter declared invalid, illegal, void or unenforceable.




          (h) Entire Agreement. This Agreement is intended by the parties as a final expression of their agreement, and is
intended to be a complete and exclusive statement of the agreement and understanding of the parties
hereto in respect of the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein, with respect to the
registration rights granted by the Company with respect to Registrable Securities. This Agreement
supersedes all prior agreements and understandings between the parties with respect to such subject
matter.







20









 








          (i) Securities Held by the Company or its Subsidiaries. Whenever the consent or approval of holders of a specified percentage of Registrable Securities
is required hereunder, Registrable Securities held by the Company or its subsidiaries shall not be
counted in determining whether such consent or approval was given by the holders of such required
percentage.




          (j) Termination. This Agreement shall terminate when no Registrable Securities remain outstanding; provided that
Section 7 and Section 8 shall survive any termination hereof.




          (k) Specific Performance. The parties hereto recognize and agree that money damages may be insufficient to compensate the
holders of any Registrable Securities for breaches by the Company of the terms hereof and,
consequently, that the equitable remedy of specific performance of the terms hereof will be
available in the event of any such breach.




[The Remainder of this Page is Left Intentionally Blank.]





21












 





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



	 	 	 	 	 

	 	 	COMPANY:
	 
	 	 	 	 
	 	 	ARMSTRONG ENERGY, INC.
	 
	 	 	 	 
	 

	 	By:
	 	     /s/ J. Hord Armstrong, III
	 

	 	 	 	 
	 

	 	 	 	J. Hord Armstrong, III
	 

	 	 	 	Chairman and CEO






	 	 	 

	 

	 	STOCKHOLDERS:
	 
	 	 
	 

	 	           /s/ J. Hord Armstrong, III
	 

	 	 
	 

	 	J. Hord Armstrong, III
	 
	 	 
	 

	 	          /s/ Martin D. Wilson
 
 
	 

	 	Martin D. Wilson






	 	 	 	 	 

	 	 	YORKTOWN ENERGY PARTNERS VI,
 L.P.
	 
	 	 	 	 
	 	 	By: Yorktown VI Company LP, its general
 partner
	 
	 	 	 	 
	 	 	By: Yorktown VI Associates LLC, its 
general partner
	 
	 	 	 	 
	 

	 	By:
	 	     /s/ Bryan H. Lawrence
	 

	 	 	 	 
	 

	 	 	 	Name:     Bryan H. Lawrence
	 

	 	 	 	Title:       Manager





Signature Page to Registration Rights Agreement






 









 








	 	 	 	 	 

	 	 	YORKTOWN ENERGY PARTNERS VII,
 L.P.
	 
	 	 	 	 
	 	 	By: Yorktown VII Company LP, its general
 partner
	 
	 	 	 	 
	 	 	By: Yorktown VII Associates LLC, its 
general partner
	 
	 	 	 	 
	 

	 	By:
	 	     /s/ Bryan H. Lawrence
	 

	 	 	 	 
	 

	 	 	 	Name:     Bryan H. Lawrence
	 

	 	 	 	Title:       Manager
	 
	 	 	 	 
	 	 	YORKTOWN ENERGY PARTNERS VIII, 
L.P.
	 
	 	 	 	 
	 	 	By: Yorktown VIII Company LP, its 
general partner
	 
	 	 	 	 
	 	 	By: Yorktown VIII Associates LLC, its 
general partner
	 
	 	 	 	 
	 

	 	By:
	 	     /s/ Bryan H. Lawrence
	 

	 	 	 	 
	 

	 	 	 	Name:     Bryan H. Lawrence
	 

	 	 	 	Title:       Manager
	 
	 	 	 	 
	 	 	YORKTOWN ENERGY PARTNERS IX, 
L.P.
	 
	 	 	 	 
	 	 	By: Yorktown IX Company LP, its general 
partner
	 
	 	 	 	 
	 	 	By: Yorktown IX Associates LLC, its
general partner
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Bryan H. Lawrence
	 

	 	 	 	 
	 

	 	 	 	Name:     Bryan H. Lawrence
	 

	 	 	 	Title:       Manager
	 
	 	 	 	 
	 	 	LucyB Trust (February 26, 2007)
	 
	 	 	 	 
	 

	 	By:
	 	          /s/ Linda B. Brandi
	 

	 	 	 	 
	 

	 	 	 	Linda B. Brandi, Trustee






Signature Page to Registration Rights Agreement





 









 








	 	 	 	 	 

	 	 	Lorenzo Weisman/Danielle Weisman Joint 
Ownership With Right Of Survivorship
	 
	 	 	 	 
	 

	 	By:
	 	     /s/ Lorenzo Weisman
	 

	 	 	 	 
	 

	 	 	 	Lorenzo Weisman
	 
	 	 	 	 
	 

	 	By:
	 	      /s/ Danielle Weisman
	 

	 	 	 	 
	 

	 	 	 	Danielle Weisman






	 	 	 

	 

	 	          /s/ James H. Brandi
	 

	 	 
	 

	 	James H. Brandi






	 	 	 	 	 

	 	 	Brim Family 2004 Trust
	 
	 	 	 	 
	 

	 	By:
	 	     /s/ Debra Patterson
	 

	 	 	 	 
	 

	 	 	 	Name: Debra Patterson
	 

	 	 	 	Title: Vice President






	 	 	 

	 

	 	          /s/ Franklin W. Hobbs IV
	 

	 	 
	 

	 	Franklin W. Hobbs IV






	 	 	 	 	 

	 	 	Hutchinson Brothers, LLC
	 
	 	 	 	 
	 

	 	By:
	 	     /s/ Steven N. Hutchinson
	 

	 	 	 	 
	 

	 	 	 	Name: Steven N. Hutchinson
	 

	 	 	 	Title: Manager






	 	 	 

	 

	 	          /s/ John H. Stites, III
	 

	 	 
	 

	 	John H. Stites, III






Signature Page to Registration Rights Agreement







 









 








EXHIBIT A


ADDENDUM AGREEMENT




     This Addendum Agreement is made this ___ day of ______________, 20___, by and between
______________________
(the “New Stockholder”) and Armstrong Energy, Inc., a Delaware corporation
(the “Company”), pursuant to a Registration Rights Agreement dated as of [•], 2012 (the
“Agreement”), between and among the Company and
certain of its stockholders (the “Stockholders”).
Capitalized terms used but not otherwise defined herein shall have the meanings given to such terms
in the Agreement.



WITNESSETH:




     WHEREAS, the New Stockholder has acquired Registrable Securities (as defined in the Agreement)
directly or indirectly from a Stockholder; and



     WHEREAS, the Agreement requires that all persons desiring registration rights must enter into
an Addendum Agreement binding the New Stockholder to the Agreement to the same extent as if it were
an original party thereto;



     NOW, THEREFORE, in consideration of the mutual promises of the parties, the New Stockholder
acknowledges that it has received and read the Agreement and that the New Stockholder shall be
bound by, and shall have the benefit of, all of the terms and conditions set out in the Agreement
to the same extent as if it were an original party to the Agreement and shall be deemed to be a
Stockholder thereunder.



	 	 	 

	 

	 	 
	 

	 	 
	 

	 	New Stockholder






	 

	Address:

	 

	                                                            

	 

	                                                            







Exhibit A-1







 









 








     AGREED TO on behalf of the Company pursuant to Section 12(c) of the Agreement.



	 	 	 	 	 

	 	 	ARMSTRONG ENERGY, INC.
	 
	 	 	 	 
	 

	 	By:
	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:






Exhibit A-2