APPLICABLE
MEMBERS OF THE CLOUD PEAK GROUP SUCH OTHER INSTRUMENTS OF TRANSFER, CONVEYANCE,
ASSIGNMENT, SUBSTITUTION AND CONFIRMATION AND TAKE SUCH OTHER ACTIONS AS CPE AND
CPE LLC MAY REASONABLY DEEM NECESSARY OR DESIRABLE IN ORDER (A) TO TRANSFER,
CONVEY AND ASSIGN TO CPE OR CPE LLC AND THE OTHER MEMBERS OF THE CLOUD PEAK
GROUP, AS APPLICABLE, THE CLOUD PEAK ASSETS, (B) TO PUT CPE AND CPE LLC AND THE
OTHER MEMBERS OF THE CLOUD PEAK GROUP, AS APPLICABLE, IN ACTUAL POSSESSION AND
OPERATING CONTROL THEREOF (SUBJECT TO ANY NECESSARY GOVERNMENTAL CONSENTS,
PERMITS AND LICENSES, WHICH SHALL BE THE RESPONSIBILITY OF CPE AND CPE LLC), AND
(C) TO PERMIT CPE AND CPE LLC AND THE OTHER MEMBERS OF THE CLOUD PEAK GROUP, AS
APPLICABLE, TO EXERCISE ALL RIGHTS WITH RESPECT THERETO.
AT THE REQUEST OF RTEA
OR KMS, CPE AND CPE LLC SHALL (AND SHALL CAUSE APPLICABLE MEMBERS OF THE CLOUD
PEAK GROUP TO) EXECUTE AND DELIVER TO RTEA OR KMS AND/OR THE APPLICABLE MEMBERS
OF THE RIO TINTO GROUP ALL INSTRUMENTS,
55
ASSUMPTIONS, NOVATIONS, UNDERTAKINGS, SUBSTITUTIONS OR OTHER DOCUMENTS AND TAKE
SUCH OTHER ACTION AS RTEA MAY REASONABLY DEEM NECESSARY OR DESIRABLE IN ORDER TO
ENSURE THAT CPE AND CPE LLC AND THE OTHER MEMBERS OF THE CLOUD PEAK GROUP FULLY
AND UNCONDITIONALLY ASSUME AND DISCHARGE THE CLOUD PEAK LIABILITIES AS
CONTEMPLATED UNDER THIS AGREEMENT, THE OTHER TRANSACTION DOCUMENTS OR ANY
DOCUMENT IN CONNECTION HEREWITH OR THEREWITH, AND RELIEVE THE RIO TINTO GROUP OF
ANY LIABILITY WITH RESPECT THERETO AND EVIDENCE THE SAME TO THIRD PERSONS.
EACH
PARTY HEREBY AGREES TO PAY THEIR RESPECTIVE OUT-OF-POCKET COSTS, EXPENSES AND
FEES IN CONNECTION WITH ITS OBLIGATIONS UNDER THIS SECTION 8.1, INCLUDING ANY
ATTORNEYS' FEES, RECORDING, ASSIGNMENT OR OTHER SIMILAR FEES.
(B)
ON OR PRIOR TO THE CLOSING DATE, RTEA, KMS, CPE AND CPE LLC, IN
THEIR CAPACITY AS DIRECT AND INDIRECT STOCKHOLDERS OF THEIR RESPECTIVE
SUBSIDIARIES, SHALL EACH RATIFY AND/OR CAUSE ANY ACTIONS THAT ARE REASONABLY
NECESSARY OR DESIRABLE TO BE TAKEN BY RTEA, KMS, CPE, CPE LLC OR ANY OTHER
SUBSIDIARY OF RTEA, KMS, CPE OR CPE LLC, AS THE CASE MAY BE, TO EFFECTUATE THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
ON OR PRIOR TO THE CLOSING DATE,
CPE SHALL TAKE ALL ACTIONS AS MAY BE NECESSARY TO APPROVE THE STOCK-BASED
EMPLOYEE BENEFIT PLANS OF CPE IN ORDER TO SATISFY THE REQUIREMENTS OF RULE 16B-3
UNDER THE EXCHANGE ACT AND THE APPLICABLE RULES AND REGULATIONS OF THE NEW YORK
STOCK EXCHANGE.
(C)
THE PARTIES AGREE TO USE THEIR COMMERCIALLY REASONABLE EFFORTS TO
ENSURE THAT ANY AMOUNTS ERRONEOUSLY PAID FOLLOWING THE CLOSING DATE BY A THIRD
PARTY TO THE OTHER PARTY PURSUANT TO THE AGENCY AGREEMENT, THE RTEA COAL SUPPLY
CONTRACT OR ANY OTHER CUSTOMER CONTRACT SHALL BE PROMPTLY REMITTED TO THE OTHER
PARTY UPON NOTICE OF SUCH ERROR BY EITHER PARTY.
8.2.
RIO TINTO GROUP NON-COMPETITION.
FOR A PERIOD
OF 12 MONTHS FOLLOWING THE IPO CLOSING DATE (THE "NON-COMPETE PERIOD") NO MEMBER
OF THE RIO TINTO GROUP SHALL, DIRECTLY