ON THE DATE ON WHICH (AND IMMEDIATELY AFTER) THE UNDERWRITING AGREEMENT
IS EXECUTED AND DELIVERED BY EACH OF THE PARTIES THERETO OR AT SUCH OTHER PLACE
OR AT SUCH OTHER TIME OR ON SUCH OTHER DATE AS RTEA, KMS, CPE AND CPE LLC MAY
MUTUALLY AGREE UPON IN WRITING (THE DAY ON WHICH THE CLOSING TAKES PLACE BEING
THE "CLOSING DATE").
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3.2.
CLOSING TRANSACTIONS.
IN EACH CASE SUBJECT TO SECTION 3.7 AFTER
THE EXECUTION AND DELIVERY OF THE UNDERWRITING AGREEMENT BY ALL PARTIES THERETO,
AT THE CLOSING (EXCEPT WITH RESPECT TO THE ESCROW AGREEMENT WHICH SHALL BE
ENTERED INTO ON THE IPO CLOSING DATE) THE APPROPRIATE PARTIES HERETO SHALL ENTER
INTO, AND (AS NECESSARY) SHALL CAUSE THEIR RESPECTIVE SUBSIDIARIES AND/OR
AFFILIATES TO ENTER INTO, THE AGREEMENTS SET FORTH BELOW (COLLECTIVELY, THE
"TRANSACTION DOCUMENTS"):
(I)
THIS AGREEMENT;
(II)
THE ACQUISITION AGREEMENT;
(III)
THE AGENCY AGREEMENT;
(IV)
THE CLOUD PEAK PROMISSORY NOTE;
(V)
THE EMPLOYEE MATTERS AGREEMENT;
(VI)
THE ESCROW AGREEMENT;
(VII)
THE LLC AGREEMENT;
(VIII)
THE MANAGEMENT SERVICES AGREEMENT;
(IX)
THE REGISTRATION RIGHTS AGREEMENT;
(X)
THE RTEA COAL SUPPLY AGREEMENT;
(XI)
THE SOFTWARE LICENSE AGREEMENT;
(XII)
THE TAX RECEIVABLE AGREEMENT;
(XIII)
THE TRADEMARK ASSIGNMENT AGREEMENT;
(XIV)
THE TRADEMARK LICENCE AGREEMENT; AND
(XV)
THE TRANSITION SERVICES AGREEMENT.
3.3.
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION AND AMENDED AND
RESTATED BYLAWS.
AT OR PRIOR TO THE CLOSING, RTEA AND CPE SHALL EACH TAKE ALL
NECESSARY ACTIONS THAT MAY BE REQUIRED TO PROVIDE FOR THE ADOPTION BY CPE OF THE
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF CPE IN THE FORM ATTACHED
HERETO AS EXHIBIT D (THE "CHARTER"), AND THE AMENDED AND RESTATED BYLAWS OF CPE
IN THE FORM ATTACHED HERETO AS EXHIBIT E (THE "BYLAWS").
3.4.
TRANSFERS OF ASSETS AND ASSUMPTION OF LIABILITIES.
ON THE CLOSING
DATE (I) THE RIO TINTO PARTIES SHALL EXECUTE AND DELIVER SUCH STOCK CERTIFICATES
AND RELATED, STOCK POWERS, AND
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any other instruments of transfer, conveyance and assignment as and to the
extent necessary to evidence the Structuring Transactions and (ii) CPE LLC shall
execute and deliver such assumptions of contracts and other instruments of
assumption as and to the extent necessary to evidence the valid and effective
assumption of the Cloud Peak Liabilities by CPE LLC.
All of the foregoing
documents contemplated by this Section 3.4 shall be referred to collectively
herein as the "Transfer Documents."
3.5.
THE INITIAL PUBLIC OFFERING, THE CONCURRENT OFFERING AND THE CLOUD
PEAK FINANCING.
THE CLOUD PEAK PARTIES SHALL CONSULT WITH, AND COOPERATE IN ALL
RESPECTS WITH, RTEA AND ITS AFFILIATES IN CONNECTION WITH THE TRANSACTIONS AND,
AT THE REQUEST OF RTEA, PROMPTLY TAKE ANY AND ALL ACTIONS NECESSARY OR DESIRABLE
IN CONNECTION WITH THE INITIAL PUBLIC OFFERING, THE CONCURRENT OFFERING AND THE
CLOUD PEAK FINANCING AS CONTEMPLATED BY THE IPO REGISTRATION STATEMENT, THE DEBT
OFFERING MEMORANDUM, THE UNDERWRITING AGREEMENT, THE PURCHASE AGREEMENT AND THE
FINANCING DOCUMENTS.
3.6.
CANCELLATION OF RTA SHARE OF CPE COMMON STOCK.
IMMEDIATELY AFTER
THE OFFERING CLOSING DATE FOR THE INITIAL PUBLIC OFFERING, CPE SHALL CAUSE