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EXHIBIT 3.6
CERTIFICATE OF DESIGNATION, PREFERENCES AND
RIGHTS OF CLASS D PREFERRED STOCK OF
ANKER COAL GROUP, INC.
PURSUANT TO SECTION 151 OF THE GENERAL CORPORATION LAW
OF THE STATE OF DELAWARE
The undersigned, being the duly appointed President and Secretary of Anker
Coal Group, Inc., a corporation organized and existing under the General
Corporation Law of the State of Delaware (the "Corporation") in accordance with
the provisions of Section 103 thereof, DO HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board of Directors by the
Certificate of Incorporation of the Corporation, the Board of Directors adopted
the following resolution creating a class of 1,000 shares of preferred stock
designated as Class D Preferred Stock.
NOW, THEREFORE, BE IT RESOLVED, that pursuant to the authority conferred
upon the Board of Directors of this Corporation in accordance with the
provisions of the Certificate of Incorporation, there is hereby established a
class of the preferred stock of the Corporation, $7,000 par value per share,
which class shall be designated as "CLASS D PREFERRED STOCK," and which shall
consist of 1,000 shares and which shall have the following dividend rights,
voting rights, terms of redemption, redemption prices, liquidation preferences
and other rights, qualifications, limitations and restrictions.
1. Dividend Rights.
a. The holders of record of the Class D Preferred Stock shall be entitled
to receive, as and when declared by the directors, dividends as follows: For a
period of fifteen years from and after January 1, 1996, cumulative preferential
dividends in an amount equal to two and one-half percent (2-1/2%), and
thereafter cumulative preferential dividends in an amount equal to one and
one-half percent (1-1/2%), of the Gross Realization from Area F Coal (as
hereinafter defined) during the immediately preceding calendar quarter, or
during so much of such calendar quarter as such holders' shares of Class D
Preferred Stock were outstanding, and no more, such dividends to accrue whether
or not declared and be cumulative from said date and to be payable quarterly.
Such dividends shall be cumulative and no dividend shall be declared, paid or
set apart for payment upon any equity security of the Corporation, nor shall any
equity securities of the Corporation be redeemed, unless all then unpaid and
accumulated dividends on the Class D Preferred Stock up to and including the
dividend payment of the last completed period for which such dividends shall be
payable shall have been declared and paid or set apart for payment. Dividends on
account of arrearages for any past dividend may be declared and paid at any time
without reference to any regular dividend payment date.
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b. As used in this Section 1, the following terms shall have the
following meanings: Gross Realization from Area F Coal during a calendar
quarter means the aggregate sale price obtained by the Area F Mining Companies
(as hereinafter defined), f.o.b. rail or truck at the loading point, for all
Area F Coal produced and sold by the Area F Mining Companies and the sale of
which was accrued on the books of the Area F Mining Companies during such
calendar quarter. Area F Coal means coal which has been produced from the
reserves owned, leased or subleased by the Corporation or any Subsidiary in
Upshur and Randolph Counties, West Virginia, identified as Area F in that
certain Area F Designation Agreement made as of the 28th of December, 1995,
between Anker Group, Inc. and Melrose Coal Company, Inc., a West Virginia
corporation (the "Area F Designation Agreement"). A copy of the Area F
Designation Agreement is on file in the office of the Secretary of the
Corporation and shall be made available without charge to any stockholder of
record of the Corporation upon request. All references in the Area F
Designation Agreement to Exhibit A thereto shall be deemed to apply to this
Section 1. Area F Mining Companies means one or more of the following: (a) the
Corporation or a Subsidiary where the Corporation or such Subsidiary owns,
leases or subleases coal reserves in Area F and is engaged in the extraction of
such coal, whether directly through the conduct of mining operations or
indirectly through the employment of contract miners, and (b) a person or
entity other than the Corporation or a Subsidiary which leases or subleases
coal reserves in Area F from the Corporation or a Subsidiary, extracts such
coal and sells it to the Corporation or a Subsidiary. As used in this Section
1, Subsidiary means a corporation, limited liability company, partnership or
other entity which is, directly or indirectly, majority owned by the
Corporation.
2. Rights on Liquidation and Ranking.
a. In the event of the liquidation, dissolution or winding-up of the
Corporation or other distribution of assets of the Corporation among
stockholders for the purpose of winding up its affairs (the foregoing, a
"Liquidation"), the holders of the Class D Preferred Stock shall, before any
amount shall be paid to or any property or assets of the Corporation distributed
among the holders of the Class C Preferred Stock or the Common Stock of the
Corporation, be entitled to receive a sum equal to $7,000 per share (the "Class
D Liquidation Value") together with all accrued and unpaid dividends (which for
such purpose shall be calculated from the expiration of the last period for
which dividends have been paid up to and including the date of distribution of
the Class D Liquidation Value, and paid within 45 days following the date of
distribution of the Class D Liquidation Value). After payment to the holders of
the Class D Preferred Stock of the amounts so payable to them, they shall not be
entitled to share in any further distribution of the property or assets of the
Corporation. In the event the amounts above provided for cannot be paid in full
as above provided in respect of the Class D Preferred Stock then outstanding,
the holders of shares of Class D Preferred stock then outstanding shall share
ratably in any amounts available for such payments.
b. With regard to rights to receive distributions upon Liquidation of
the Corporation, Class D Preferred Stock shall rank (i) senior to the Class A,
B and C Preferred Stock of the Corporation, and (ii) senior to the Common Stock
of the Corporation.
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3. Voting Rights.
Except as otherwise provided by law, the holders of the Class D Preferred
Stock shall have no voting rights on matters put to a vote of the stockholders
of the Corporation.
4. Redemption.
a. In the event the Corporation elects at any time to redeem shares of the
Class D Preferred Stock, the Corporation shall redeem the shares at a price
equal to the Class D Liquidation Value together with all accrued and unpaid
dividends (which for such purpose shall be calculated from the expiration of
the last period for which dividends have been paid up to and including the date
of distribution of the Class D Liquidation Value, and paid within 45 days
following the date of distribution of the Class D Liquidation Value).
b. In the event that on or before December 31, 2005, the Corporation shall
not have paid dividends and special dividends in respect of the Class D
Preferred Stock in an aggregate amount of $5,000,000 or more, then the
Corporation, if so requested by a holder of Class D Preferred Stock in a written
notice received by the Corporation no later than January 31, 2006, shall, out of
funds legally available therefor, redeem such stockholder's shares of Class D
Preferred Stock over a period of five years by redeeming twenty percent (20%) of
such stockholder's shares of Class D Preferred Stock on or before December 31,
2006 and December 31 of each of the next four succeeding years (the "Class D
Redemption Dates") at a redemption price equal to the Class D Liquidation Value
together with all accrued and unpaid dividends (which for such purpose shall be
calculated from the expiration of the last period for which dividends have been
paid up to and including the date of distribution of the Class D Liquidation
Value, and paid within 45 days following the date of distribution of the Class D
Liquidation Value); provided, however, that if, as of any Class D Redemption
Date the Corporation shall not have funds legally available therefor sufficient
to redeem all shares of Class D Preferred Stock to be redeemed on such date,
then the Corporation shall redeem on such date such number of shares of Class D
Preferred Stock to be redeemed as it shall have funds legally available therefor
and the remainder of the shares of Class D Preferred Stock which were to have
been redeemed shall be redeemed promptly from time to time as the Corporation
shall have funds legally available therefor. On and after any Class D
Redemption Date and until the Corporation shall have redeemed all of the shares
of the Class D Preferred Stock to be redeemed on such date in accordance with
this Section 4(b), no dividend shall be declared, paid or set apart for payment
upon the Class C Preferred Stock or the Common Stock of the Corporation. No
fractional shares shall be redeemed.
c. The Corporation shall, out of funds legally available therefor, redeem
any shares of the Class D Preferred Stock which are issued and outstanding on
December 31, 2010, over a period of five years by redeeming twenty percent
(20%) of the shares held by each holder of Class D Preferred Stock on or before
December 31, 2011 and December 31 of each of the next four succeeding years
(the "Class D Final Redemption Dates") at a redemption price equal to the Class
D Liquidation Value together with all accrued and unpaid dividends (which for
such
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purpose shall be calculated from the expiration of the last period for which
dividends have been paid up to and including the date of distribution of the
Class D Liquidation Value, and paid within 45 days following the date of
distribution of the Class D Liquidation Value); provided, however, that if, as
of any Class D Final Redemption Date the Corporation shall not have funds
legally available therefor sufficient to redeem all shares of Class D Preferred
Stock to be redeemed on such date, then the Corporation shall redeem on such
date such number of shares of Class D Preferred Stock to be redeemed as it shall
have funds legally available therefor and the remainder of the shares of Class D
Preferred Stock which were to have been redeemed shall be redeemed promptly from
time to time as the Corporation shall have funds legally available therefor. On
and after any Class D Final Redemption Date and until the Corporation shall have
redeemed all of the shares of the Class D Preferred Stock to be redeemed on such
date in accordance with this Section 4(c), no dividend shall be declared, paid
or set apart for payment upon the Class C Preferred Stock or the Common Stock of
the Corporation. No fractional shares shall be redeemed.
d. The holders of shares of the Class D Preferred Stock shall not have
the right at any time to require the redemption of such shares, except as
provided in Sections 4(b) and 4(c).
RESOLVED FURTHER, that the President, the Executive Vice President, the
Secretary and the Assistant Secretary of the Corporation are each authorized to
do or cause to be done all such acts or things and to make, execute and deliver
or cause to be made, execute and delivered all such agreements, documents,
instruments and certificates in the name and on behalf of the Corporation or
otherwise as they deem necessary, desirable or appropriate to execute or carry
out the purpose and intent of the foregoing resolutions.
IN WITNESS WHEREOF, we have executed and subscribed this Certificate as
of this 9th day of August, 1996.
/s/ John J. Faltis
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John J. Faltis, President
/s/ Bruce Sparks
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Bruce Sparks, Secretary
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