Exhibit 4.2
$175,000,000
ALPHA NATURAL RESOURCES, LLC
ALPHA NATURAL RESOURCES CAPITAL CORP.
10% SENIOR NOTES DUE 2012
REGISTRATION RIGHTS AGREEMENT
May 18, 2004
Credit Suisse First Boston LLC
UBS Securities LLC
Citigroup Global Markets, Inc.
Morgan Stanley & Co. Incorporated
BB&T Capital Markets, a division of Scott & Stringfellow, Inc.
c/o Credit Suisse First Boston LLC
Eleven Madison Avenue
New York, New York 10010-3629
Dear Sirs:
Alpha Natural Resources, LLC, a Delaware limited liability company
("ALPHA"), and Alpha Natural Resources Capital Corp., a Delaware corporation
("ANR CAPITAL," and together with Alpha, the "ISSUERS"), propose to issue and
sell to Credit Suisse First Boston LLC, UBS Securities LLC, Citigroup Global
Markets Inc., Morgan Stanley & Co. Incorporated and BB&T Capital Markets, a
division of Scott & Stringfellow, Inc. (collectively, the "INITIAL PURCHASERS"),
upon the terms set forth in a purchase agreement, dated May 13, 2004 (the
"PURCHASE AGREEMENT"), among the Company (as defined below), the Guarantors (as
defined below) and the Initial Purchasers, $175,000,000 aggregate principal
amount of its 10% Senior Notes due 2012 (the "INITIAL SECURITIES") to be
unconditionally guaranteed (the "GUARANTIES") by each of the entities listed on
Exhibit A hereto (each a "GUARANTOR," and collectively, the "GUARANTORS" and,
together with the Issuers, the "COMPANY"). The Initial Securities will be issued
pursuant to an Indenture, dated as of May 18, 2004, (the "INDENTURE") among the
Issuers, the Guarantors named therein and Wells Fargo Minnesota, National
Association (the "TRUSTEE"). As an inducement to the Initial Purchasers to enter
into the Purchase Agreement, the Company agrees with the Initial Purchasers, for
the benefit of the holders of the Initial Securities (including, without
limitation, the Initial Purchasers), the Exchange Securities (as defined below)
and the Private Exchange Securities (as defined Section 1 hereof) (collectively
the "HOLDERS"), as follows:
1. Registered Exchange Offer. The Company shall, at its own cost, prepare
and, not later than 210 days after (or if the 210th day is not a business day,
the first business day thereafter) the date of original issue of the Initial
Securities (the "ISSUE DATE"), file with the Securities and Exchange Commission
(the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION
STATEMENT") on an appropriate form under the Securities Act of 1933, as amended
(the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED
EXCHANGE OFFER") to the Holders of Transfer Restricted Securities (as defined in
Section 6 hereof), who are not prohibited by any law or policy of the Commission
from participating in the Registered Exchange Offer, to issue and deliver to
such Holders, in exchange for the Initial Securities, a like aggregate principal
amount of debt securities (the "EXCHANGE SECURITIES") of the Company issued
under the Indenture and identical in all material respects to the Initial
Securities (except for the transfer restrictions relating to the Initial
Securities and the provisions relating to the matters
described in Section 6 hereof) that would be registered under the Securities
Act. The Company shall use its commercially reasonable efforts to cause such
Exchange Offer Registration Statement to become effective under the Securities
Act within 270 days (or if the 270th day is not a business day, the first
business day thereafter) after the Issue Date of the Initial Securities and
shall keep the Exchange Offer Registration Statement effective for not less than
30 days (or longer, if required by applicable law) after the date notice of the
Registered Exchange Offer is mailed to the Holders (such period being called the
"EXCHANGE OFFER REGISTRATION PERIOD").
If the Company effects the Registered Exchange Offer, the Company will be
entitled to close the Registered Exchange Offer 20 business days after the
commencement thereof; provided that the Company has accepted all the Initial
Securities validly tendered and not properly withdrawn prior to the expiration,
and in accordance with the terms, of the Registered Exchange Offer; and provided
further that the Company shall use its commercially reasonable efforts to close
such Registered Exchange Offer on or prior to 30 business days (or longer if
required by applicable law) after the date on which the Exchange Offer
Registration Statement was declared effective by the Commission.
Following the declaration of the effectiveness of the Exchange Offer
Registration Statement, the Company shall promptly commence the Registered
Exchange Offer, it being the objective of such Registered Exchange Offer to
enable each Holder of Transfer Restricted Securities (as defined in Section 6
hereof) electing to exchange the Initial Securities for Exchange Securities
(assuming that such Holder is not an affiliate of the Company within the meaning
of the Securities Act, acquires the Exchange Securities in the ordinary course
of such Holder's business and has no arrangements with any person to participate
in the distribution of the Exchange Securities and is not prohibited by any law
or policy of the Commission from participating in the Registered Exchange Offer)
to trade such Exchange Securities from and after their receipt without any
limitations or restrictions under the Securities Act and without material
restrictions under the securities laws of the several states of the United
States.
The Company and the Initial Purchasers acknowledge that, pursuant to
current interpretations by the Commission's staff of Section 5 of the Securities
Act, in the absence of an applicable exemption therefrom, (i) each Holder which
is a broker-dealer electing to exchange Securities, acquired for its own account
as a result of market making activities or other trading activities, for
Exchange Securities (an "EXCHANGING DEALER"), is required to deliver a
prospectus containing the information set forth in (a) Annex A hereto on the
cover, (b) Annex B hereto in the "Exchange Offer Procedures" section and the
"Purpose of the Exchange Offer" section, and (c) Annex C hereto in the "Plan of
Distribution" section of such prospectus in connection with a sale of any such
Exchange Securities received by such Exchanging Dealer pursuant to the
Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell
Exchange Securities acquired in exchange for Securities constituting any portion
of an unsold allotment is required to deliver a prospectus containing the
information required by Items 507 or 508 of Regulation S-K under the Securities
Act, as applicable, in connection with such sale.
The Company shall use its commercially reasonable efforts to keep the
Exchange Offer Registration Statement effective and to amend and supplement the
prospectus contained therein, in order to permit such prospectus to be lawfully
delivered by all persons subject to the prospectus delivery requirements of the
Securities Act for such period of time as such persons must comply with such
requirements in order to resell the Exchange Securities; provided, however, that
(i) in the case where such prospectus and any amendment or supplement thereto
must be delivered by an Exchanging Dealer or an Initial Purchaser, such period
shall be the lesser of 180 days and the date on which all Exchanging Dealers and
the Initial Purchasers have sold all Exchange Securities held by them (unless
such period is extended pursuant to Section 3(j) below) and (ii) the Company
shall make such prospectus and any amendment or supplement thereto, available to
any broker-dealer for use in connection with any resale of any Exchange
Securities for a period of not less than 90 days after the consummation of the
Registered Exchange Offer.
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If, upon consummation of the Registered Exchange Offer, any Initial
Purchaser holds Initial Securities acquired by it as part of its initial
distribution, the Company, simultaneously with the delivery of the Exchange
Securities pursuant to the Registered Exchange Offer, shall issue and deliver to
such Initial Purchaser upon the written request of such Initial Purchaser, in
exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such
Initial Purchaser, a like principal amount of debt securities of the Company
issued under the Indenture and identical in all material respects (including the
existence of restrictions on transfer under the Securities Act and the
securities laws of the several states of the United States, but excluding
provisions relating to the matters described in Section 6 hereof) to the Initial
Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the
Exchange Securities and the Private Exchange Securities are herein collectively
called the "Securities".
In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter
of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 20
business days (or longer, if required by applicable law) after the date
notice thereof is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange
Offer with an address in the Borough of Manhattan, The City of New York,
which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior
to the close of business, New York time, on the last business day on which
the Registered Exchange Offer shall remain open; and
(e) otherwise comply with all applicable laws.
As soon as practicable after the close of the Registered Exchange Offer or
the Private Exchange, as the case may be, the Company shall:
(x) accept for exchange all the Securities validly tendered and not
withdrawn pursuant to the Registered Exchange Offer and the Private
Exchange;
(y) deliver to the Trustee for cancellation all the Initial
Securities so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver promptly to each
Holder of the Initial Securities, Exchange Securities or Private Exchange
Securities, as the case may be, equal in principal amount to the Initial
Securities of such Holder so accepted for exchange.
The Indenture will provide that the Exchange Securities will not be
subject to the transfer restrictions set forth in the Indenture and that all the
Securities will vote and consent together on all matters as one class and that
none of the Securities will have the right to vote or consent as a class
separate from one another on any matter.
Interest on each Exchange Security and Private Exchange Security issued
pursuant to the Registered Exchange Offer and in the Private Exchange will
accrue from the last interest payment date on which interest was paid on the
Initial Securities surrendered in exchange therefor or, if no interest has been
paid on the Initial Securities, from the date of original issue of the Initial
Securities.
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In order to participate in the Registered Exchange Offer, each Holder
shall be required to represent to the Company that at the time of the
consummation of the Registered Exchange Offer (i) any Exchange Securities
received by such Holder will be acquired in the ordinary course of business,
(ii) such Holder will have no arrangements or understanding with any person to
participate in the distribution of the Securities or the Exchange Securities
within the meaning of the Securities Act, (iii) such Holder is not an
"affiliate," as defined in Rule 405 of the Securities Act, of the Company or if
it is an affiliate, such Holder will comply with the registration and prospectus
delivery requirements of the Securities Act to the extent applicable, (iv) if
such Holder is not a broker-dealer, that it is not engaged in, and does not
intend to engage in, the distribution of the Exchange Securities and (v) if such
Holder is a broker-dealer, that it will receive Exchange Securities for its own
account in exchange for Initial Securities that were acquired as a result of
market-making activities or other trading activities and that it will be
required to acknowledge that it will deliver a prospectus in connection with any
resale of such Exchange Securities.
Notwithstanding any other provisions hereof, the Company will ensure that
(i) any Exchange Offer Registration Statement and any amendment thereto and any
prospectus forming part thereof and any supplement thereto complies in all
material respects with the Securities Act and the rules and regulations
thereunder, (ii) any Exchange Offer Registration Statement and any amendment
thereto does not, when it becomes effective, 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 not misleading and (iii) any prospectus
forming part of any Exchange Offer Registration Statement, and any supplement to
such prospectus, does not include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
2. Shelf Registration. If: (i) the Company is not (a) required to file the
Exchange Offer Registration Statement or (b) permitted to consummate the
Registered Exchange Offer because the Registered Exchange Offer is not permitted
by applicable law or Commission policy; or (ii) any holder of Transfer
Restricted Securities (as defined in Section 6 hereof) notifies the Issuers
prior to the 20th business day following the consummation of the Registered
Exchange Offer that: (a) it is prohibited by law or Commission policy from
participating in the Registered Exchange Offer; (b) it may not resell the
Exchange Securities acquired by it in the Registered Exchange Offer to the
public without delivering a prospectus and the prospectus contained in the
Exchange Offer Registration Statement is not appropriate or available for such
resales or (c) it is a broker dealer and owns Initial Securities acquired
directly from the Issuers or an affiliate of the Issuers, the Company shall take
the following actions:
(a) The Company shall, at its cost, file with the Commission a
registration statement (the "SHELF REGISTRATION STATEMENT" and, together
with the Exchange Offer Registration Statement, a "REGISTRATION
STATEMENT") on an appropriate form under the Securities Act relating to
the offer and sale of the Transfer Restricted Securities (as defined in
Section 6 hereof) by the Holders thereof from time to time in accordance
with the methods of distribution set forth in the Shelf Registration
Statement and Rule 415 under the Securities Act (hereinafter, the "SHELF
REGISTRATION") within 210 days (or if such 210th day is not a business
day, the first business day thereafter) after so required or requested
pursuant to this Section 2 and the Company shall use its commercially
reasonable efforts to cause the Shelf Registration Statement to be
declared effective within 270 days (or if such 270th day is not a business
day, the first business day thereafter) after so required or requested
pursuant to this Section 2; provided, however, that no Holder (other than
an Initial Purchaser) shall be entitled to have the Securities held by it
covered by such Shelf Registration Statement unless such Holder agrees in
writing to be bound by all the provisions of this Agreement applicable to
such Holder.
(b) The Company shall use its commercially reasonable efforts to
keep the Shelf Registration Statement continuously effective in order to
permit the prospectus included therein to be lawfully delivered by the
Holders of the relevant Securities, for a period of two years (or for
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such longer period if extended pursuant to Section 3(j) below) from the
date of its effectiveness or such shorter period that will terminate when
all the Securities covered by the Shelf Registration Statement (i) have
been sold pursuant thereto or (ii) are no longer restricted securities (as
defined in Rule 144 under the Securities Act, or any successor rule
thereof); provided, however, that Alpha may notify the Holders of its
suspension of any Shelf Registration Statement (and, upon receipt of such
notice, the Holders shall not be authorized by the Company to resell and
shall not resell Securities covered by the Shelf Registration Statement
during such period of suspension) if the Board of Directors of Alpha
determines in good faith that there is a valid business purpose for the
suspension (all such periods of suspension may not exceed 60 days during
any 365-day period), and such suspensions shall not give rise to any right
to receive Additional Interest pursuant to Section 6 hereof. The Company
shall be deemed not to have used its commercially reasonable efforts to
keep the Shelf Registration Statement effective during the requisite
period if it voluntarily takes any action (excluding any suspension
permitted in accordance with the preceding proviso) that would result in
Holders of Securities covered thereby not being able to offer and sell
such Securities during that period, unless such action is required by
applicable law.
(c) Notwithstanding any other provisions of this Agreement to the
contrary, the Company shall cause the Shelf Registration Statement and the
related prospectus and any amendment or supplement thereto, as of the
effective date of the Shelf Registration Statement, amendment or
supplement, (i) to comply in all material respects with the applicable
requirements of the Securities Act and the rules and regulations of the
Commission and (ii) not to contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading (other than with
respect to written information included therein furnished to the Company
by or on behalf of any Holder specifically for use therein).
3. Registration Procedures. In connection with any Shelf Registration
contemplated by Section 2 hereof and, to the extent applicable, any Registered
Exchange Offer contemplated by Section 1 hereof, the following provisions shall
apply:
(a) The Company shall (i) furnish to each Initial Purchaser, prior
to the filing thereof with the Commission, a copy of the Registration
Statement and each amendment thereof and each supplement, if any, to the
prospectus included therein and, in the event that an Initial Purchaser
(with respect to any portion of an unsold allotment from the original
offering) is participating in the Registered Exchange Offer or the Shelf
Registration Statement, the Company shall use its commercially reasonable
efforts to reflect in each such document, when so filed with the
Commission, such comments as such Initial Purchaser reasonably may propose
in writing within a reasonable period of time (such time not to exceed 5
business days) after being provided with a draft of the Shelf Registration
Statement); (ii) include the information set forth in Annex A hereto on
the cover, in Annex B hereto in the "Exchange Offer Procedures" section
and the "Purpose of the Exchange Offer" section and in Annex C hereto in
the "Plan of Distribution" section (or comparable sections, however
captioned) of the prospectus forming a part of the Exchange Offer
Registration Statement, in each case subject to any comments received from
the Commission staff, and include the information set forth in Annex D
hereto in the Letter of Transmittal delivered pursuant to the Registered
Exchange Offer; (iii) if requested by an Initial Purchaser, include the
information required by Items 507 or 508 of Regulation S-K under the
Securities Act, as applicable, in the prospectus forming a part of the
Exchange Offer Registration Statement; (iv) include within the prospectus
contained in the Exchange Offer Registration Statement a section entitled
"Plan of Distribution," reasonably acceptable to the Initial Purchasers,
which shall contain a summary statement of the positions taken or policies
made by the staff of the Commission with respect to the potential
"underwriter" status of any broker-dealer that is the beneficial owner (as
defined in Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT")) of Exchange Securities received by such
broker-dealer in the
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Registered Exchange Offer (a "PARTICIPATING BROKER-DEALER"), whether such
positions or policies have been publicly disseminated by the staff of the
Commission or such positions or policies, in the reasonable judgment of
the Initial Purchasers based upon advice of counsel (which may be in-house
counsel), represent the prevailing views of the staff of the Commission;
and (v) in the case of a Shelf Registration Statement, include the names
of the Holders, who propose to sell Securities pursuant to the Shelf
Registration Statement, as selling securityholders.
(b) The Company shall give written notice to the Initial Purchasers,
the selling Holders of the Securities and any Participating Broker-Dealer
from whom the Company has received prior written notice that it will be a
Participating Broker-Dealer in the Registered Exchange Offer (which notice
pursuant to clauses (ii)-(v) hereof shall be accompanied by an instruction
to suspend the use of the prospectus until the requisite changes have been
made):
(i) when the Registration Statement or any amendment thereto
has been filed with the Commission and when the Registration
Statement or any post-effective amendment thereto has become
effective;
(ii) of any request by the Commission for amendments or
supplements to the Registration Statement or the prospectus included
therein or for additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by the Company or its legal counsel of any
notification with respect to the suspension of the qualification of
the Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and
(v) of the happening of any event that requires the Company to
make changes in the Registration Statement or the prospectus in
order that the Registration Statement or the prospectus does not
contain an untrue statement of a material fact nor omit to state a
material fact required to be stated therein or necessary to make the
statements therein (in the case of the prospectus, in light of the
circumstances under which they were made) not misleading.
(c) The Company shall use its commercially reasonable efforts to
obtain the withdrawal at the earliest possible time of any order
suspending the effectiveness of the Registration Statement.
(d) The Company shall furnish to each Holder of Securities included
within the coverage of the Shelf Registration, without charge, at least
one copy of the Shelf Registration Statement and any post-effective
amendment thereto, including financial statements and schedules, and, if
the Holder so requests in writing, all exhibits thereto (including those,
if any, incorporated by reference).
(e) The Company shall deliver to each Exchanging Dealer and each
Initial Purchaser, and to any other Holder who so requests, without
charge, at least one copy of the Exchange Offer Registration Statement and
any post-effective amendment thereto, including financial statements and
schedules, and, if any Initial Purchaser or any such Holder requests, all
exhibits thereto (including those incorporated by reference).
(f) The Company shall, during the Shelf Registration Period, deliver
to each Holder of Securities included within the coverage of the Shelf
Registration, without charge, as many copies
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of the prospectus (including each preliminary prospectus) included in the
Shelf Registration Statement and any amendment or supplement thereto as
such person may reasonably request. The Company consents, subject to the
provisions of this Agreement, to the use of the prospectus or any
amendment or supplement thereto by each of the selling Holders of the
Securities in connection with the offering and sale of the Securities
covered by the prospectus, or any amendment or supplement thereto,
included in the Shelf Registration Statement.
(g) The Company shall deliver to each Initial Purchaser, any
Exchanging Dealer, any Participating Broker-Dealer and such other persons
required to deliver a prospectus following the Registered Exchange Offer,
without charge, as many copies of the final prospectus included in the
Exchange Offer Registration Statement and any amendment or supplement
thereto as such persons may reasonably request. The Company consents,
subject to the provisions of this Agreement, to the use of the prospectus
or any amendment or supplement thereto by any Initial Purchaser, if
necessary, any Participating Broker-Dealer and such other persons required
to deliver a prospectus following the Registered Exchange Offer in
connection with the offering and sale of the Exchange Securities covered
by the prospectus, or any amendment or supplement thereto, included in
such Exchange Offer Registration Statement.
(h) Prior to any public offering of the Securities, pursuant to any
Registration Statement, the Company shall use its commercially reasonable
efforts to register or qualify or cooperate with the Holders of the
Securities included therein and their respective counsel in connection
with the registration or qualification of the Securities for offer and
sale under the securities or "blue sky" laws of such states of the United
States as any Holder of the Securities reasonably requests in writing and
do any and all other acts or things reasonably necessary or advisable to
enable the offer and sale in such jurisdictions of the Securities covered
by such Registration Statement; provided, however, that the Company shall
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
which would subject it to general service of process or to taxation in any
jurisdiction where it is not then so subject.
(i) The Company shall cooperate with the Holders of the Securities
to facilitate the timely preparation and delivery of certificates
representing the Securities to be sold pursuant to any Registration
Statement free of any restrictive legends and in such denominations and
registered in such names as the Holders may request a reasonable period of
time prior to sales of the Securities pursuant to such Registration
Statement.
(j) Upon the occurrence of any event contemplated by paragraphs (ii)
through (v) of Section 3(b) above during the period for which the Company
is required to maintain an effective Registration Statement, the Company
shall promptly prepare and file a post-effective amendment to the
Registration Statement or a supplement to the related prospectus and any
other required document so that, as thereafter delivered to Holders of the
Securities or purchasers of Securities, the prospectus will not contain an
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,
in light of the circumstances under which they were made, not misleading.
If the Company notifies the Initial Purchasers, the Holders of the
Securities and any known Participating Broker-Dealer in accordance with
paragraphs (ii) through (v) of Section 3(b) above to suspend the use of
the prospectus until the requisite changes to the prospectus have been
made, then the Initial Purchasers, the Holders of the Securities and any
such Participating Broker-Dealers shall suspend use of such prospectus,
and the period of effectiveness of the Shelf Registration Statement
provided for in Section 2(b) above and the Exchange Offer Registration
Statement provided for in Section 1 above shall each be extended by the
number of days from and including the date of the giving of such notice to
and including the date when the Initial Purchasers, the Holders of the
Securities and any known Participating Broker-Dealer shall have received
such amended or supplemented prospectus pursuant to this Section 3(j).
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(k) Not later than the effective date of the applicable Registration
Statement, the Company will provide a CUSIP number for the Initial
Securities, the Exchange Securities or the Private Exchange Securities, as
the case may be, and provide the applicable trustee with printed
certificates for the Initial Securities, the Exchange Securities or the
Private Exchange Securities, as the case may be, in a form eligible for
deposit with The Depository Trust Company.
(l) The Company will comply in all material respects with all rules
and regulations of the Commission to the extent and so long as they are
applicable to the Registered Exchange Offer or the Shelf Registration and
will make generally available to its security holders (or otherwise
provide in accordance with Section 11(a) of the Securities Act) an
earnings statement satisfying the provisions of Section 11(a) of the
Securities Act, no later than 45 days after the end of a 12-month period
(or 90 days, if such period is a fiscal year) beginning with the first
month of the Company's first fiscal quarter commencing after the effective
date of the Registration Statement, which statement shall cover such
12-month period.
(m) To the extent required by applicable law, the Company shall
cause the Indenture to be qualified under the Trust Indenture Act of 1939,
as amended, in a timely manner and containing such changes, if any, as
shall be necessary for such qualification. In the event that such
qualification would require the appointment of a new trustee under the
Indenture, the Company shall appoint a new trustee thereunder pursuant to
the applicable provisions of the Indenture.
(n) The Company may require each Holder of Securities to be sold
pursuant to the Shelf Registration Statement to (i) be named as a selling
securityholder, and (ii) furnish to the Company such information regarding
the Holder and the distribution of the Securities as the Company may from
time to time reasonably require for inclusion in the Shelf Registration
Statement, and the Company may exclude from such registration the
Securities of any Holder that unreasonably fails to furnish such
information within a reasonable time (but in any event not more than ten
days) after receiving such request.
(o) The Company shall enter into such customary agreements
(including, if requested in the case of a Shelf Registration, an
underwriting agreement in customary form) and take all such other action,
if any, as the Holders of a majority in aggregate principal amount of the
Securities to be included in any Shelf Registration shall reasonably
request in order to facilitate the disposition of the Securities pursuant
to the Shelf Registration.
(p) In the case of any Shelf Registration, the Company shall (i)
make reasonably available for inspection by the Holders of the Securities
named in the Shelf Registration Statement, any underwriter participating
in any disposition pursuant to the Shelf Registration Statement and any
attorney, accountant or other agent retained by the Holders of the
Securities named in the Shelf Registration Statement or any such
underwriter all relevant financial and other records, pertinent corporate
documents and properties of the Company and (ii) cause the Company's
officers, directors, employees to, and use commercially reasonable efforts
to cause the Company's accountants and auditors to, supply all relevant
information reasonably requested by the Holders of the Securities named in
the Shelf Registration Statement or any such underwriter, attorney,
accountant or agent in connection with the Shelf Registration Statement,
in each case, as shall be reasonably necessary to enable such persons, to
conduct a reasonable investigation within the meaning of Section 11 of the
Securities Act; provided, however, that the foregoing inspection and
information gathering shall be coordinated on behalf of the Initial
Purchasers by Credit Suisse First Boston LLC and on behalf of the other
parties, by one counsel designated by and on behalf of such other parties
as described in, and subject to the provisions of, Section 4 hereof; and
provided, further, with respect to any information that is reasonably and
in good faith designated by the Company as confidential at the time of
delivery of such information, each party to whom
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information is delivered shall first agree in writing with the Company
that (1) such party shall keep such information confidential and (2) such
party shall abstain from trading any securities of the Company in
violation of applicable securities laws on the basis of any confidential
information, in each case until such information has been made generally
available to the public.
(q) In the case of any Shelf Registration, the Company, if requested
by the Holders of a majority in aggregate principal amount of Securities
covered thereby, shall cause (i) its counsel to deliver an opinion in the
form set forth in Section 6(d) of the Purchase Agreement with such changes
as are customary in connection with the preparation of a Shelf
Registration Statement addressed to such Holders and the managing
underwriters, if any, thereof and dated, in the case of the initial
opinion, the effective date of such Shelf Registration Statement; (ii) its
officers to execute and deliver all customary documents and certificates
and updates thereof requested by any underwriters of the applicable
Securities; and (iii) its independent public accountants and the
independent public accountants with respect to any other entity for which
financial information is provided in the Shelf Registration Statement to
provide to the selling Holders of the applicable Securities and any
underwriter therefor a comfort letter in customary form and covering
matters of the type customarily covered in comfort letters in connection
with primary underwritten offerings, subject to receipt of appropriate
documentation as contemplated, and only if permitted, by Statement of
Auditing Standards No. 72.
(r) In the case of the Registered Exchange Offer, if reasonably
requested by any Initial Purchaser or any known Participating
Broker-Dealer, the Company shall cause (i) its counsel to deliver to such
Initial Purchaser or such Participating Broker-Dealer a signed opinion in
the form set forth in Section 6(d) of the Purchase Agreement with such
changes as are customary in connection with the preparation of a
Registration Statement and (ii) its independent public accountants and the
independent public accountants with respect to any other entity for which
financial information is provided in the Registration Statement to deliver
to such Initial Purchaser or such Participating Broker-Dealer a comfort
letter, in customary form, meeting the requirements as to the substance
thereof as set forth in Section 6(a) and (b) of the Purchase Agreement,
with appropriate date changes.
(s) If a Registered Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Initial Securities by Holders to the
Company (or to such other Person as directed by the Company) in exchange
for the Exchange Securities or the Private Exchange Securities, as the
case may be, the Company shall mark, or caused to be marked, on the
Initial Securities so exchanged that such Initial Securities are being
canceled in exchange for the Exchange Securities or the Private Exchange
Securities, as the case may be; in no event shall the Initial Securities
be marked as paid or otherwise satisfied.
(t) The Company will use its commercially reasonable efforts to (a)
if the Initial Securities have been rated prior to the initial sale of
such Initial Securities, confirm such ratings will apply to the Securities
covered by a Registration Statement, or (b) if the Initial Securities were
not previously rated, cause the Securities covered by a Registration
Statement to be rated with the appropriate rating agencies, if so
requested by Holders of a majority in aggregate principal amount of
Securities covered by such Registration Statement, or by the managing
underwriters, if any.
(u) In the event that any broker-dealer registered under the
Exchange Act shall underwrite any Securities or participate as a member of
an underwriting syndicate or selling group or "assist in the distribution"
(within the meaning of the Conduct Rules (the "RULES") of the National
Association of Securities Dealers, Inc. ("NASD")) thereof, whether as a
Holder of such Securities or as an underwriter, a placement or sales agent
or a broker or dealer in respect thereof, or otherwise, the Company will
use its commercially reasonable efforts to assist such broker-dealer in
complying with the requirements of such Rules, including, without
limitation, by (i) if
9
such Rules, including Rule 2720, shall so require, engaging a "qualified
independent underwriter" (as defined in Rule 2720) to participate in the
preparation of the Registration Statement relating to such Securities, to
exercise usual standards of due diligence in respect thereto and, if any
portion of the offering contemplated by such Registration Statement is an
underwritten offering or is made through a placement or sales agent, to
recommend the yield of such Securities, (ii) indemnifying any such
qualified independent underwriter to the extent of the indemnification of
underwriters provided in Section 5 hereof and (iii) providing such
information to such broker-dealer as may be required in order for such
broker-dealer to comply with the requirements of the Rules.
(v) The Company shall use its commercially reasonable efforts to
take all other steps necessary to effect the registration of the
Securities covered by a Registration Statement contemplated hereby.
4. Registration Expenses. The Company shall bear all fees and expenses
incurred in connection with the performance of its obligations under Sections 1
through 3 hereof (including the reasonable fees and expenses, if any, of Latham
& Watkins LLP, counsel for the Initial Purchasers, incurred in connection with
the Registered Exchange Offer which fees and expenses shall not exceed $10,000),
whether or not the Registered Exchange Offer or a Shelf Registration is filed or
becomes effective, and, in the event of a Shelf Registration, shall bear or
reimburse the Holders of the Securities covered thereby for the reasonable fees
and disbursements of not more than one firm of counsel designated by the Holders
of a majority in principal amount of the Initial Securities covered thereby to
act as counsel for the Holders of the Initial Securities in connection
therewith, which counsel shall be approved by the Company (such approval not to
be unreasonably withheld or delayed). Each Initial Purchaser and Holder shall
pay all expenses of its counsel (other than as set forth in the preceding
sentence), underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of such Initial Purchaser's or Holder's
Initial Securities pursuant to the Shelf Registration Statement.
5. Indemnification. (a) The Company agrees to indemnify and hold harmless
each Holder of the Securities, any Participating Broker-Dealer and each person,
if any, who controls such Holder or such Participating Broker-Dealer within the
meaning of the Securities Act or the Exchange Act (each Holder, any
Participating Broker-Dealer and such controlling persons are referred to
collectively as the "INDEMNIFIED PARTIES") from and against any losses, claims,
damages or liabilities, joint or several, or any actions in respect thereof
(including, but not limited to, any losses, claims, damages, liabilities or
actions relating to purchases and sales of the Securities) to which each
Indemnified Party may become subject under the Securities Act, the Exchange Act
or otherwise, insofar as such losses, claims, damages, liabilities or actions
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in a Registration Statement or in a prospectus that
is part of a Registration Statement (a "Prospectus") or in any amendment or
supplement thereto or in any preliminary prospectus relating to a Shelf
Registration, or arise out of, or are based upon, the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and shall reimburse, as
incurred, the Indemnified Parties for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action in respect thereof; provided, however, that
(i) the Company shall not be liable in any such case to the extent that such
loss, claim, damage or liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in a
Registration Statement or Prospectus or in any amendment or supplement thereto
or in any preliminary prospectus relating to a Shelf Registration in reliance
upon and in conformity with written information pertaining to such Holder and
furnished to the Company by or on behalf of such Holder specifically for
inclusion therein and (ii) with respect to any untrue statement or omission or
alleged untrue statement or omission made in any preliminary prospectus relating
to a Shelf Registration Statement, the indemnity agreement contained in this
subsection (a) shall not inure to the benefit of any Holder or Participating
Broker-Dealer from whom the person asserting any such losses, claims, damages or
liabilities purchased the Securities concerned, to the extent that a prospectus
relating to such Securities was required to be delivered by such Holder or
Participating Broker-
10
Dealer under the Securities Act in connection with such purchase and any such
loss, claim, damage or liability of such Holder or Participating Broker-Dealer
results from the fact that there was not sent or given to such person, at or
prior to the written confirmation of the sale of such Securities to such person,
a copy of the final prospectus if the Company had previously furnished copies
thereof to such Holder or Participating Broker-Dealer; provided further,
however, that this indemnity agreement will be in addition to any liability
which the Company may otherwise have to such Indemnified Party. The Company
shall also indemnify underwriters, their officers and directors and each person
who controls such underwriters within the meaning of the Securities Act or the
Exchange Act to the same extent as provided above with respect to the
indemnification of the Holders of the Securities if requested by such Holders.
(b) Each Holder of the Securities, severally and not jointly, will
indemnify and hold harmless the Company and each person, if any, who controls
the Company within the meaning of the Securities Act or the Exchange Act from
and against any losses, claims, damages or liabilities or any actions in respect
thereof, to which the Company or any such controlling person may become subject
under the Securities Act, the Exchange Act or otherwise, insofar as such losses,
claims, damages, liabilities or actions arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in a
Registration Statement or Prospectus or in any amendment or supplement thereto
or in any preliminary prospectus relating to a Shelf Registration, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact necessary to make the statements therein not misleading, but in
each case only to the extent that the untrue statement or omission or alleged
untrue statement or omission was made in reliance upon and in conformity with
written information pertaining to such Holder and furnished to the Company by or
on behalf of such Holder specifically for inclusion therein; and, subject to the
limitation set forth immediately preceding this clause, shall reimburse, as
incurred, the Company for any legal or other expenses reasonably incurred by the
Company or any such controlling person in connection with investigating or
defending any loss, claim, damage, liability or action in respect thereof. This
indemnity agreement will be in addition to any liability which such Holder may
otherwise have to the Company or any of its controlling persons.
(c) Promptly after receipt by an indemnified party under this Section 5 of
notice of the commencement of any action or proceeding (including a governmental
investigation), such indemnified party will, if a claim in respect thereof is to
be made against the indemnifying party under this Section 5, notify the
indemnifying party of the commencement thereof; but the failure to notify the
indemnifying party shall not relieve the indemnifying party from any liability
that it may have under subsection (a) or (b) above except to the extent that it
has been materially prejudiced (through the forfeiture of substantive rights or
defenses) by such failure; and provided further that the failure to notify the
indemnifying party shall not relieve it from any liability that it may have to
an indemnified party otherwise than under subsection (a) or (b) above. In case
any such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof the
indemnifying party will not be liable to such indemnified party under this
Section 5 for any legal or other expenses, other than reasonable costs of
investigation, subsequently incurred by such indemnified party in connection
with the defense thereof. Each indemnified party shall, as a condition of the
indemnity agreement contained in Sections 5(a) and (b), use reasonable efforts
to cooperate with the indemnifying party in the defense of any such action or
claim. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened action in
respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party unless such
settlement (i) includes an unconditional release of such indemnified party from
all liability on any claims that are the subject matter of such action, and (ii)
does not include a statement as to or an admission of fault, culpability or a
failure to act by or on behalf of any indemnified party.
11
(d) If the indemnification provided for in this Section 5 is unavailable
or insufficient to hold harmless an indemnified party under subsections (a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to in subsection (a) or (b)
above (i) in such proportion as is appropriate to reflect the relative benefits
received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the exchange of the Securities, pursuant to
the Registered Exchange Offer, or (ii) if the allocation provided by the
foregoing clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the indemnifying party or parties on
the one hand and the indemnified party on the other in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof) as well as any other relevant
equitable considerations. The relative fault of the parties shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company on the one hand or
such Holder or such other indemnified party, as the case may be, on the other,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid by
an indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim which is
the subject of this subsection (d). Notwithstanding any other provision of this
Section 5(d), the Holders of the Securities shall not be required to contribute
any amount in excess of the amount by which the net proceeds received by such
Holders from the sale of the Securities pursuant to a Registration Statement
exceeds the amount of damages which such Holders have 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. For purposes
of this paragraph (d), each person, if any, who controls such indemnified party
within the meaning of the Securities Act or the Exchange Act shall have the same
rights to contribution as such indemnified party and each person, if any, who
controls the Company within the meaning of the Securities Act or the Exchange
Act shall have the same rights to contribution as the Company.
(e) The agreements contained in this Section 5 shall survive the sale of
the Securities pursuant to a Registration Statement and shall remain in full
force and effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of any indemnified party.
6. Additional Interest Under Certain Circumstances. (a) Additional
interest (the "ADDITIONAL INTEREST") with respect to the Initial Securities
shall be assessed as follows if any of the following events occur (each such
event in clauses (i) through (iii) below a "Registration Default":
(i) any Registration Statement required by this agreement is not
declared effective by the Commission on or prior to the date specified for
such effectiveness (the "EFFECTIVENESS TARGET DATE");
(ii) the Company fails to consummate the Registered Exchange Offer
within 30 business days of the Effectiveness Target Date with respect to
the Exchange Offer Registration Statement (other than in the event the
Company complies with Section 2 hereof); or
(iii) if after either the Exchange Offer Registration Statement or
the Shelf Registration Statement is declared effective (A) such
Registration Statement thereafter ceases to be effective; or (B) such
Registration Statement ceases to be usable (except as permitted in
paragraph (b)) in connection with resales of Transfer Restricted
Securities during the periods specified herein because either (1) any
event occurs as a result of which the related prospectus forming part of
such
12
Registration Statement would include any untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein in the light of the circumstances under which they were made not
misleading, or (2) it shall be necessary to amend such Registration
Statement or supplement the related prospectus, to comply with the
Securities Act or the Exchange Act or the respective rules thereunder.
Additional Interest shall accrue and be payable by the Company to each Holder of
Initial Securities from and including the date on which any such Registration
Default shall occur to but excluding the date on which all such Registration
Defaults have been cured. With respect to the first 90-day period immediately
following the occurrence of the first Registration Default, Additional Interest
shall accrue and be payable as provided in the preceding sentence in an amount
equal to 0.25% per annum on the applicable Securities held by such Holder. The
amount of Additional Interest shall increase by an additional 0.25% per annum on
the applicable Securities with respect to each subsequent 90-day period to but
excluding the date all Registration Defaults have been cured, up to a maximum
amount of Additional Interest for all Registration Defaults of 1.0% per annum;
provided, however, the amount of additional interest shall not increase because
more than one Registration Default has occurred and is pending; and provided
further, however, a holder of Securities who is not entitled to the benefits of
the Shelf Registration Statement (i.e., such holder has not elected to include
information) shall not be entitled to Additional Interest with respect to a
Registration Default that pertains to the Shelf Registration Statement.
(b) A Registration Default referred to in Section 6(a)(iii)(B) hereof
shall be deemed not to have occurred and be continuing in relation to a Shelf
Registration Statement or the related prospectus if (i) such Registration
Default has occurred solely as a result of (x) the filing of a post-effective
amendment to such Shelf Registration Statement to incorporate annual audited or
required quarterly financial information with respect to the Company where such
post-effective amendment is not yet effective and needs to be declared effective
to permit Holders to use the related prospectus or (y) other material events,
with respect to the Company that would need to be described in such Shelf
Registration Statement or the related prospectus, or (z) such Shelf Registration
Statement contains an untrue statement of material fact or omits to state a
material fact necessary to make the statements therein in the light of the
circumstances under which they were made not misleading with respect to written
information included therein furnished to the Company by or on behalf of any
Holder specifically for use therein, and (ii) in the case of clause (y), the
Company is proceeding promptly and in good faith to amend or supplement such
Shelf Registration Statement and related prospectus to describe such events;
provided, however, that in any case if such Registration Default occurs for a
continuous period in excess of 30 days, Additional Interest shall be payable in
accordance with the above paragraph from the day such Registration Default
occurs until such Registration Default is cured.
(c) Any amounts of Additional Interest due pursuant to clause (i), (ii) or
(iii) of Section 6(a) above will be payable in cash on the regular interest
payment dates with respect to the Initial Securities. The amount of Additional
Interest will be determined by multiplying the applicable Additional Interest
rate by the principal amount of the Initial Securities, multiplied by a
fraction, the numerator of which is the number of days such Additional Interest
rate was applicable during such period (determined on the basis of a 360-day
year comprised of twelve 30-day months), and the denominator of which is 360.
(d) "Transfer Restricted Securities" means each Security until (i) the
date on which such Transfer Restricted Security has been exchanged by a person
other than a broker-dealer for a freely transferable Exchange Security in the
Registered Exchange Offer, (ii) following the exchange by a broker-dealer in the
Registered Exchange Offer of an Initial Security for an Exchange Note, the date
on which such Exchange Note is sold to a purchaser who receives from such
broker-dealer on or prior to the date of such sale a copy of the prospectus
contained in the Exchange Offer Registration Statement, (iii) the date on which
such Initial Security has been effectively registered under the Securities Act
and disposed of in accordance with the Shelf Registration Statement or (iv) the
date on which such Initial Securities are sold to the public pursuant to Rule
144 under the Securities Act or is saleable pursuant to Rule 144(k) under the
Securities Act.
13
7. Rules 144 and 144A. The Company shall use its commercially reasonable
efforts to file the reports required to be filed by it under the Securities Act
and the Exchange Act in a timely manner and, if at any time the Company is not
required to file such reports, it will, upon the request of any Holder of
Initial Securities, make publicly available other information so long as
necessary to permit sales of their securities pursuant to Rules 144 and 144A.
The Company covenants that it will take such further action as any Holder of
Initial Securities may reasonably request, all to the extent required from time
to time to enable such Holder to sell Initial Securities without registration
under the Securities Act within the limitation of the exemptions provided by
Rules 144 and 144A (including the requirements of Rule 144A(d)(4)). The Company
will provide a copy of this Agreement to prospective purchasers of Initial
Securities identified to the Company by the Initial Purchasers upon request.
Upon the request of any Holder of Initial Securities, the Company shall deliver
to such Holder a written statement as to whether it has complied with such
requirements. Notwithstanding the foregoing, nothing in this Section 7 shall be
deemed to require the Company to register any of its securities pursuant to the
Exchange Act.
8. Underwritten Registrations. If any of the Transfer Restricted
Securities covered by any Shelf Registration are to be sold in an underwritten
offering, the investment banker or investment bankers and manager or managers
that will administer the offering ("MANAGING UNDERWRITERS") will be selected by
the Holders of a majority in aggregate principal amount of such Transfer
Restricted Securities to be included in such offering, subject to the prior
consent of the Company (such consent shall not be unreasonably withheld or
delayed), and such Holders shall be responsible for all underwriting commissions
and discounts and related expenses incurred (to the extent provided by Section 4
hereof) in connection therewith.
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted
Securities on the basis reasonably provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements.
9. Miscellaneous.
(a) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, except by the Company and the written
consent of the Holders of a majority in principal amount of the Securities
affected by such amendment, modification, supplement, waiver or consents.
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first-class mail,
facsimile transmission, or air courier which guarantees overnight delivery:
(1) if to a Holder of the Securities, at the most current address
given by such Holder to the Company.
(2) if to the Initial Purchasers;
Credit Suisse First Boston LLC
Eleven Madison Avenue
New York, NY 10010-3629
Fax No.: (212) 325-8278
Attention: Transactions Advisory Group
14
with a copy to:
Latham & Watkins LLP
885 Third Avenue
New York, New York 10022
Fax No.: (212) 751-4864
Attention: Peter M. Labonski
(3) if to the Company, at its address as follows:
Alpha Natural Resources, LLC
406 West Main Street
Abingdon, VA
Fax No.: (276) 628-9025
Attention: Chief Financial Officer
with a copy to:
Bartlit Beck Herman Palenchar & Scott LLP
1899 Wynkoop Street, Suite 800
Denver, CO 80202
Attention: Polly S. Swartzfager
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; three business
days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged by recipient's facsimile machine operator, if sent by facsimile
transmission; and on the day delivered, if sent by overnight air courier
guaranteeing next day delivery.
(c) No Inconsistent Agreements. The Company has not, as of the date
hereof, entered into, nor shall it, on or after the date hereof, enter into, any
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders herein or otherwise conflicts with the provisions hereof.
(d) Successors and Assigns. This Agreement shall be binding upon the
Company and its successors and assigns.
(e) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.
(h) Severability. If any one or more of the provisions contained herein,
or the application thereof in any circumstance, is held invalid, illegal or
unenforceable, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions contained herein shall
not be affected or impaired thereby.
15
(i) Securities Held by the Company. Whenever the consent or approval of
Holders of a specified percentage of principal amount of Securities is required
hereunder, Securities held by the Company or its affiliates (other than
subsequent Holders of Securities if such subsequent Holders are deemed to be
affiliates solely by reason of their holdings of such Securities) shall not be
counted in determining whether such consent or approval was given by the Holders
of such required percentage.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the several Initial Purchasers and the Company in accordance with its
terms.
Very truly yours,
ALPHA NATURAL RESOURCES, LLC
By: /s/ Michael J. Quillen
Name: Michael J. Quillen
Title: President
ALPHA NATURAL RESOURCES CAPITAL CORP.
By: /s/ Michael J. Quillen
Name: Michael J. Quillen
Title: President
ALPHA COAL SALES CO., LLC
By: /s/ Vaughn R. Groves
Name: Vaughn R. Groves
Title: Vice President
ALPHA ENERGY GLOBAL MARKETING, LLC
By: /s/ Vaughn R. Groves
Name: Vaughn R. Groves
Title: Vice President
ALPHA LAND & RESERVES, LLC
16
By: /s/ Vaughn R. Groves
Name: Vaughn R. Groves
Title: President
ALPHA NATURAL RESOURCES SERVICES, LLC
By: /s/ Vaughn R. Groves
Name: Vaughn R. Groves
Title: Vice President
ALPHA TERMINAL COMPANY, LLC
By: /s/ Vaughn R. Groves
Name: Vaughn R. Groves
Title: Vice President
AMFIRE, LLC
By: /s/ Vaughn R. Groves
Name: Vaughn R. Groves
Title: Vice President
AMFIRE HOLDINGS, INC.
By: /s/ Vaughn R. Groves
Name: Vaughn R. Groves
Title: Vice President
AMFIRE MINING COMPANY, LLC
By: /s/ Vaughn R. Groves
Name: Vaughn R. Groves
Title: Vice President
17
AMFIRE WV, L.P.
BY: AMFIRE HOLDINGS, INC., AS GENERAL
PARTNER
By: /s/ Vaughn R. Groves
Name: Vaughn R. Groves
Title: Vice President
BROOKS RUN MINING COMPANY, LLC
By: /s/ Vaughn R. Groves
Name: Vaughn R. Groves
Title: Vice President
DICKENSON-RUSSELL COAL COMPANY, LLC
By: /s/ Vaughn R. Groves
Name: Vaughn R. Groves
Title: Vice President
ENTERPRISE MINING COMPANY, LLC
By: /s/ Vaughn R. Groves
Name: Vaughn R. Groves
Title: Vice President
ESPERANZA COAL CO., LLC
By: /s/ Vaughn R. Groves
Name: Vaughn R. Groves
Title: Vice President
GALLUP TRANSPORTATION & TRANSLOADING
COMPANY, LLC
18
By: /s/ Vaughn R. Groves
Name: Vaughn R. Groves
Title: Vice President
HERNDON PROCESSING COMPANY, LLC
By: /s/ Vaughn R. Groves
Name: Vaughn R. Groves
Title: Vice President
KEPLER PROCESSING COMPANY, LLC
By: /s/ Vaughn R. Groves
Name: Vaughn R. Groves
Title: Vice President
KINGWOOD MINING COMPANY, LLC
By: /s/ Vaughn R. Groves
Name: Vaughn R. Groves
Title: Vice President
LITWAR PROCESSING COMPANY, LLC
By: /s/ Vaughn R. Groves
Name: Vaughn R. Groves
Title: Vice President
MAXXIM REBUILD CO., LLC
By: /s/ Vaughn R. Groves
Name: Vaughn R. Groves
Title: Vice President
MAXXIM SHARED SERVICES, LLC
19
By: /s/ Vaughn R. Groves
Name: Vaughn R. Groves
Title: Vice President
MAXXUM CARBON RESOURCES, LLC
By: /s/ Vaughn R. Groves
Name: Vaughn R. Groves
Title: Vice President
MCDOWELL-WYOMING COAL COMPANY, LLC
By: /s/ Vaughn R. Groves
Name: Vaughn R. Groves
Title: Vice President
NATIONAL KING COAL LLC
By: /s/ Vaughn R. Groves
Name: Vaughn R. Groves
Title: Vice President
NEWHALL MINING COMPANY, LLC
By: /s/ Vaughn R. Groves
Name: Vaughn R. Groves
Title: Vice President
PARAMONT COAL COMPANY VIRGINIA, LLC
By: /s/ Vaughn R. Groves
Name: Vaughn R. Groves
Title: Vice President
20
RIVERSIDE ENERGY COMPANY, LLC
By: /s/ Vaughn R. Groves
Name: Vaughn R. Groves
Title: Vice President
SOLOMONS MINING COMPANY
By: /s/ Vaughn R. Groves
Name: Vaughn R. Groves
Title: Vice President
21
The foregoing Registration
Rights Agreement is hereby confirmed
and accepted as of the date first
above written.
CREDIT SUISSE FIRST BOSTON LLC
UBS SECURITIES LLC
CITIGROUP GLOBAL MARKETS INC.
MORGAN STANLEY & CO. INCORPORATED
BB&T CAPITAL MARKETS, A DIVISION OF SCOTT & STRINGFELLOW, INC.
by: CREDIT SUISSE FIRST BOSTON LLC
By: /s/ Mitch Goldstein
Name: Mitch Goldstein
Title: Managing Director
22
EXHIBIT A
GUARANTORS
ALPHA COAL SALES CO., LLC
ALPHA ENERGY GLOBAL MARKETING,. LLC
ALPHA LAND & RESERVES, LLC
ALPHA NATURAL RESOURCES SERVICES, LLC
ALPHA TERMINAL COMPANY, LLC
AMFIRE, LLC
AMFIRE HOLDINGS, INC.
AMFIRE MINING COMPANY, LLC
AMFIRE WEST VIRGINIA, L.P.
BROOKS RUN MINING COMPANY, LLC
DICKENSON-RUSSELL COAL COMPANY, LLC
ENTERPRISE MINING COMPANY, LLC
ESPERANZA COAL CO., LLC
GALLUP TRANSPORTATION & TRANSLOADING COMPANY, LLC
HERNDON PROCESSING COMPANY, LLC
KEPLER PROCESSING COMPANY, LLC
KINGWOOD MINING COMPANY, LLC
LITWAR PROCESSING COMPANY, LLC
MAXXIM REBUILD CO., LLC
MAXXIM SHARED SERVICES, LLC
MAXXUM CARBON RESOURCES, LLC
MCDOWELL-WYOMING COAL COMPANY, LLC
NATIONAL KING COAL LLC
NEWHALL MINING COMPANY, LLC
PARAMONT COAL COMPANY VIRGINIA, LLC
RIVERSIDE ENERGY COMPANY, LLC
SOLOMONS MINING COMPANY
ANNEX A
Each broker-dealer that receives Exchange Securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. The Letter
of Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of Exchange Securities received in exchange for Initial Securities
where such Initial Securities were acquired by such broker-dealer as a result of
market-making activities or other trading activities. The Company has agreed
that, for a period of 180 days after the Expiration Date (as defined herein), it
will make this Prospectus available to any broker-dealer for use in connection
with any such resale. See "Plan of Distribution."
ANNEX B
Each broker-dealer that receives Exchange Securities for its own account
in exchange for Securities, where such Initial Securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See "Plan of Distribution."
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Securities received in
exchange for Initial Securities where such Initial Securities were acquired as a
result of market-making activities or other trading activities. The Company has
agreed that, for a period of 180 days after the Expiration Date, it will make
this prospectus, as amended or supplemented, available to any broker-dealer for
use in connection with any such resale. In addition, until , 200 , all dealers
effecting transactions in the Exchange Securities may be required to deliver a
prospectus.(1)
The Company will not receive any proceeds from any sale of Exchange
Securities by broker-dealers. Exchange Securities received by broker-dealers for
their own account pursuant to the Exchange Offer may be sold from time to time
in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the Exchange Securities or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such broker-dealer or the purchasers of any such Exchange
Securities. Any broker-dealer that resells Exchange Securities that were
received by it for its own account pursuant to the Exchange Offer and any broker
or dealer that participates in a distribution of such Exchange Securities may be
deemed to be an "underwriter" within the meaning of the Securities Act and any
profit on any such resale of Exchange Securities and any commission or
concessions received by any such persons may be deemed to be underwriting
compensation under the Securities Act. The Letter of Transmittal states that, by
acknowledging that it will deliver and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act.
For a period of 180 days after the Expiration Date the Company will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Company has agreed to pay all expenses
incident to the Exchange Offer (including the reasonable expenses of one counsel
for the Holders of the Securities) other than commissions or concessions of any
brokers or dealers and will indemnify the Holders of the Securities (including
any broker-dealers) against certain liabilities, including liabilities under the
Securities Act.
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(1) In addition, the legend required by Item 502(b) of Regulation S-K will
appear on the back cover page of the Exchange Offer prospectus.
ANNEX D
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name: __________________________________________
Address: ________________________________________
________________________________________
If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Securities. If the undersigned is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Initial Securities that were
acquired as a result of market-making activities or other trading activities, it
acknowledges that it will deliver a prospectus in connection with any resale of
such Exchange Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.