EXHIBIT 2.17
SIXTH AMENDMENT TO CONTRIBUTION AGREEMENT
THIS SIXTH AMENDMENT (this "Amendment") to the CONTRIBUTION AGREEMENT dated
as of December 31, 2002, as amended by that certain (i) letter agreement dated
January 30, 2003, (ii) letter agreement dated February 28, 2003, (iii) Third
Amendment to Contribution Agreement dated March 11, 2003, (iv) Fourth Amendment
to the Contribution Agreement dated May 9, 2003, and (v) letter agreement dated
September 13, 2004, as amended (together as so amended, the "Agreement"), is
made and entered into as of February 11, 2005 by and among (1) ALPHA NR HOLDING,
INC. (f/k/a Alpha Natural Resources, Inc.), a Delaware corporation, and ANR FUND
IX HOLDINGS, L.P., a Delaware limited partnership (together, the "FRC Parties"),
(2) certain entities and persons listed on the signature page of the Agreement
and referred to in the Agreement as the "AMCI PARTIES", (3) ANR HOLDINGS, LLC, a
Delaware limited liability company (the "Company") and (4) ALPHA NATURAL
RESOURCES, INC., a Delaware corporation ("New Alpha"). Capitalized terms used
but not defined herein have the meanings set forth in the Agreement.
WHEREAS, New Alpha, Alpha Ventures, Inc., the Company, First Reserve Fund
IX, L.P., a Delaware limited partnership, and all of the Company's Members (the
"IRA Parties") are entering into an Internal Restructuring Agreement on the date
of this Amendment (the "IRA");
WHEREAS, in connection with the IRA and in anticipation of New Alpha's
issuance of shares of common stock to the public, the Members of the Company
will transition their ownership interest in the Company to New Alpha; and
WHEREAS, in connection with the transactions contemplated by the IRA, the
Parties wish to amend the Agreement to make certain changes consistent with the
transition of their ownership interest to New Alpha.
NOW, THEREFORE, in consideration of the mutual promises and agreements set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereby agree as
follows:
1. Amendments.
(a) Additions to Definitions. Section 1.1 of the Agreement is revised by
adding to the following definition to be and read in full as follows:
"Fair Market Value" means (i) if there is a public market for the New
Alpha Shares on such date, the closing sale price of the New Alpha
Shares as reported on such date on the composite tape of the principal
national securities exchange on which such New Alpha Shares are listed
or admitted to trading, or, if no composite tape exists for such
national securities exchange, then on the principal national
securities exchange on which such New Alpha Shares are listed or
admitted to trading, or, if the New Alpha Shares are not listed or
admitted on a national securities exchange, the closing sale price of
the New Alpha Shares on the NASDAQ on such date, or, if no sale of
shares of New Alpha Shares shall have been reported on such composite
tape or such national securities exchange on such date or quoted on
the NASDAQ on such date, then "Fair Market Value" shall be determined
in good faith by the Board of Directors of New Alpha using its
reasonable business judgment and (ii) if there is no public market for
the New Alpha Shares, "Fair Market Value" shall be determined in good
faith by the Board of Directors of New Alpha using its reasonable
business judgment.
"IRA" means that certain Internal Restructuring Agreement dated as of
February 11, 2005 among New Alpha, Alpha Ventures, Inc., the Company,
First Reserve Fund IX, L.P., a Delaware limited partnership, and all
of the Company's Members.
"Letter of Credit" means a letter of credit or similar financial
instrument from a financial institution provided to New Alpha,
substantially in the form of Exhibit A to this Amendment, the terms of
which are hereby incorporated by reference into this Amendment,
securing the obligations of the AMCI Parties to fully and promptly pay
the Retiree Medical Indemnity Obligations, in the amount and on the
terms contemplated by Section 11.02(c) of the IRA.
"New Alpha Shares" means the common stock, par value $0.01 per share,
of New Alpha.
"Retiree Medical Indemnity Obligations" means the Liabilities of the
AMCI Parties under Section 8.2(b)(iv) of the Agreement as it relates
to clauses (ix) and (xxiii) of the definition of Retained Liabilities
contained in Section 1.1 of the Agreement.
(b) Pledge. Section 2.9 of the Agreement shall be deleted in its entirety.
(c) Indemnification.
(i) The final sentence of Section 8.2(c)(iii) of the Agreement shall
be deleted and replaced by the following:
The Company and the FRC Parties agree that after the Closing any
claims for indemnification pursuant to Section 8.2(b)(iv) as it
relates to clauses (ix) and (xxiii) of the definition of Retained
Liabilities shall first be compensated by drawing on the Letter of
Credit; provided, however, that the Company's and the FRC Parties
remedies shall in no way be limited.
(ii) Section 8.8 of the Agreement shall be deleted in its entirety and
replaced by the following:
8.8 Settlement of Indemnity Obligation with New Alpha Shares. The AMCI
Parties, the FRC Parties or the Company, as the case may be, shall, at
the option of the indemnifying party, settle any indemnity obligation
owed under this Agreement either (i) in cash, (ii) by surrender to the
Company (or issuance by New Alpha in the case of matters arising under
Section 8.3(b)) of New Alpha Shares having a Fair Market Value on the
date of surrender no less than the value of the indemnity obligation
owed or (iii) a combination of cash and surrender of New Alpha Shares
valued as provided in clause (ii) of this Section 8.8.
(d) Notices. Section 12.8 of the Agreement is amended by revising the list
of the Parties addresses, facsimile numbers and contact persons for the AMCI
Parties and adding to the list of the Parties addresses, facsimile numbers and
contact persons, the following address, facsimile and contact information for
New Alpha:
If to AMCI Parties or the AMCI Representative:
American Metals & Coal International, Inc.
475 Steamboat Road, 2nd Floor
Greenwich, CT 06830
Attention: Hans J. Mende, President
Facsimile No.: (203) 625-9231
With a copy to:
American Metals & Coal International, Inc.
One Energy Place
Latrobe, PA 15650
Attention: Michael J. Walker, Executive Vice President
Facsimile No.: (724) 537-5853
and to:
McGuire Woods LLP
One James Center
901 East Cary Street
Richmond, VA 23219
Attention: Leslie A. Grandis
Facsimile No.: (804) 698-2069
If to New Alpha:
Alpha Natural Resources, Inc.
406 West Main Street
Abingdon, VA 24210
Attention: Michael J. Quillen
Facsimile No.: (276) 623-2849
With a copy to:
Bartlit Beck Herman Palenchar & Scott LLP
1899 Wynkoop Street, Suite 800
Denver, Colorado 80202
Attention: James L. Palenchar, Esq.
Facsimile No.: (303) 592-3140
2. Termination of Certain Agreements.
(a) Escrow Agreement. The FRC Parties and KM agree to cause the Escrowed
Amount held pursuant to the terms of the Escrow Agreement to be distributed to
KM. The Parties agree and acknowledge that the Retiree Medical Indemnity
Obligations, which have been secured by the Escrowed Amount prior to the date of
this Amendment, have not been released and will, beginning on the date of this
Amendment, be secured by the Letter of Credit. The FRC Parties and KM further
agree that the Escrow Agreement shall be terminated and of no further force or
effect on and after the date the Escrowed Amount is disbursed, provided that the
rights of Escrow Agent and the obligations of the FRC Parties and KM under
Sections 10 and 11 of the Escrow Agreement shall survive such termination.
(b) Pledge Agreement. Vollow Resources LLC, Redbank, Inc., REI, Inc., Still
Run Coal Company, Inc., Creekside Energy Development Company, Newhall Pocahontas
Energy, Inc., SCM, Inc., RRD, Inc., Beta Resources, LLC ("Pledgors") and the FRC
Parties agree that the Pledgors' pledge of the Collateral (as defined in the
Pledge Agreement) to the FRC Parties to secure the Retiree Medical Indemnity
Obligations is hereby released by the FRC Parties. The FRC Parties hereby return
to each Pledgor such of the Collateral and other documents delivered by such
Pledgor pursuant to the Pledge Agreement as may be in the FRC Parties
possession. The Pledgors and the FRC Parties further agree that the Pledge
Agreement shall be terminated and of no further force or effect on and after the
date of this Amendment.
3. Headings. The headings used for the sections and articles herein are for
convenience and reference purposes only and shall in no way affect the meaning
or interpretation of the provisions of this Amendment.
4. Governing Law. This Amendment shall be construed and interpreted according to
the Laws of the State of Delaware, without regard to the conflicts of law rules
thereof.
5. Counterparts. This Amendment may be executed in several counterparts, each of
which is an original and all of which constitute one and the same instrument.
6. Effect of Amendment. Except as amended prior to the date of this Amendment,
and by this Amendment, the Agreement shall continue in full force and effect.
[Signature Pages Follow.]
SIGNATURE PAGE 1 OF 2 TO SIXTH AMENDMENT TO
CONTRIBUTION AGREEMENT
IN WITNESS WHEREOF, the parties set forth below have caused this Amendment
to be duly executed as of February 11, 2005.
ANR FUND IX HOLDINGS, L.P.
By: First Reserve GP IX, L.P.
General Partner of ANR Fund
IX Holdings, L.P.
By: First Reserve GP IX, Inc.
General Partner of First Reserve GP
IX, L.P.
By: /s/ Alex T. Krueger
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Name: Alex T. Krueger
Title: Managing Director
ALPHA NR HOLDING, INC.
By: /s/ Alex T. Krueger
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Name: Alex T. Krueger
Title: Vice President
AMCI REPRESENTATIVE ON BEHALF OF THE
AMCI PARTIES, AS APPOINTED PURSUANT TO
SECTION 12.20 OF THE CONTRIBUTION
AGREEMENT
By: /s/ Hans J. Mende
------------------------------------
Name: Hans J. Mende
SIGNATURE PAGE 2 OF 2 TO SIXTH AMENDMENT TO
CONTRIBUTION AGREEMENT
ANR HOLDINGS, LLC
By: /s/ Michael J. Quillen
------------------------------------
Name: Michael J. Quillen
Title: President
ALPHA NATURAL RESOURCES, INC.
By: /s/ Michael J. Quillen
------------------------------------
Name: Michael J. Quillen
Title: President