Exhibit 1.1
[FORM OF UNDERWRITING AGREEMENT]
February __, 2005
Xxxxxx Xxxxxxx & Co. Incorporated
Citigroup Global Markets Inc.
UBS Securities LLC
Bear, Xxxxxxx & Co. Inc.
Xxxxxx Brothers Inc.
ABN AMRO Rothschild LLC
Natexis Bleichroeder Inc.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs and Mesdames:
Alpha Natural Resources, Inc., a Delaware corporation (the "COMPANY"),
proposes to issue and sell to the several Underwriters named in Schedule I
hereto (the "UNDERWRITERS") 29,500,000 shares of its common stock, $0.01 par
value per share (the "FIRM SHARES").
The Company also proposes to issue and sell to the several Underwriters not
more than an additional 4,425,000 shares of its common stock, $0.01 par value
per share (the "ADDITIONAL SHARES"), if and to the extent that Xxxxxx Xxxxxxx &
Co. Incorporated ("XXXXXX XXXXXXX") and Citigroup Global Markets Inc. ("CGMI,"
and together with Xxxxxx Xxxxxxx, the "MANAGERS"), as Managers of the offering,
shall have determined to exercise, on behalf of the Underwriters, the right to
purchase such shares of common stock granted to the Underwriters in Section 2
hereof. The Firm Shares and the Additional Shares are hereinafter collectively
referred to as the "SHARES." The shares of common stock, $0.01 par value per
share, of the Company to be outstanding after giving effect to the sales
contemplated hereby are hereinafter referred to as the "COMMON STOCK."
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement on Form S-1 (File No. 333-121002),
including a prospectus, relating to the Shares. The registration statement as
amended at the time it becomes effective, including the information (if any)
deemed to be part of the registration statement at the time of effectiveness
pursuant to Rule 430A under the Securities Act of 1933, as amended (the
"SECURITIES ACT"), is hereinafter referred to as the "REGISTRATION STATEMENT";
the prospectus in the form first used to confirm sales of Shares is hereinafter
referred to as the "PROSPECTUS." If the Company has filed an abbreviated
registration statement to register additional shares of Common Stock pursuant to
Rule 462(b) under the Securities Act (the "RULE 462 REGISTRATION STATEMENT"),
then any reference herein to the term "REGISTRATION STATEMENT" shall be deemed
to include such Rule 462 Registration Statement.
Xxxxxx Xxxxxxx has agreed to reserve a portion of the Shares to be
purchased by it under this Agreement for sale to the Company's directors,
officers, employees and business associates and other parties related to the
Company (collectively, "PARTICIPANTS"), as set forth in the Prospectus under the
heading "Underwriters" (the "DIRECTED SHARE PROGRAM"). The Shares to be sold by
Xxxxxx Xxxxxxx and its affiliates pursuant to the Directed Share Program are
referred to hereinafter as the "DIRECTED SHARES." Any Directed Shares not
confirmed for purchase by any Participants by the end of the business day on
which this Agreement is executed will be offered to the public by the
Underwriters as set forth in the Prospectus.
1. Representations and Warranties. The Company represents and warrants to
and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or, to the Company's
knowledge, threatened by the Commission.
(b) (i) The Registration Statement, when it became effective, did not
contain and, as amended or supplemented, if applicable, will not contain
any 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, (ii) the Registration Statement and the Prospectus comply
and, as amended or supplemented, if applicable, will comply in all material
respects with the Securities Act and the applicable rules and regulations
of the Commission thereunder and (iii) the Prospectus does not contain and,
as amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the representations and
warranties set forth in this paragraph do not apply to the information
contained in or omitted from the Registration Statement or the Prospectus,
or any amendment or supplement thereto, based upon information furnished to
the Company in writing by or on behalf of the Underwriters through the
Managers expressly for use therein.
(c) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
power and authority (corporate and other) to own its properties and conduct
its business as described in the Prospectus; and the Company is duly
qualified to do business as a foreign corporation in good standing in all
other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except (i) where the
failure to be so qualified or be in good standing would not reasonably be
expected, individually or in the aggregate, to have a material adverse
effect on the condition (financial or other), business, properties or
results of operations of the Company and its subsidiaries taken as a whole
(a "MATERIAL ADVERSE EFFECT") and (ii) for jurisdictions not recognizing
the legal concepts of good standing or qualification.
(d) The entities listed on Schedule II hereto are the only
subsidiaries, direct or indirect, of the Company. Each subsidiary of the
Company has been duly incorporated or
formed and is an existing limited liability company, corporation or limited
partnership, as applicable, in good standing under the laws of the
jurisdiction of its incorporation or formation, as applicable, with power
and authority to own its properties and conduct its business as described
in the Prospectus; and each subsidiary of the Company is duly qualified to
do business as a foreign limited liability company, corporation or limited
partnership, as applicable, in good standing in all other jurisdictions in
which its ownership or lease of property or the conduct of its business
requires such qualification; except (i) where the failure to be so
qualified or be in good standing would not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect, and
(ii) for jurisdictions not recognizing the legal concepts of good standing
or qualification. All of the limited liability company membership
interests, outstanding shares of capital stock ("SUBSIDIARY SHARES") and
limited partnership interests (collectively, the "SUBSIDIARY EQUITY
INTERESTS") of each subsidiary of the Company have been duly authorized
and, to the extent certificated, have been validly issued, and all
Subsidiary Shares are fully paid and non-assessable. Except as disclosed in
the Prospectus, the Subsidiary Equity Interests are owned by the Company,
directly or through subsidiaries, free from all liens, encumbrances and
security interests, other than liens, encumbrances and security interests
imposed in favor of the lenders under the senior secured credit facility of
Alpha Natural Resources, LLC, as borrower, and ANR Holdings, LLC, as parent
guarantor, described in the Prospectus or permitted thereunder.
(e) This Agreement has been duly authorized, executed and delivered by
the Company.
(f) The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus.
(g) The shares of Common Stock outstanding prior to the issuance of
the Shares have been duly authorized and are validly issued, fully paid and
non-assessable.
(h) The Shares have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, will be validly
issued, fully paid and non-assessable, and the issuance of such Shares will
not be subject to any preemptive or similar rights.
(i) Neither the Company nor any of its subsidiaries is (i) in
violation of its respective certificate of incorporation, certificate of
limited partnership or certificate of formation, as applicable, or by-laws,
limited liability company agreement or limited partnership agreement, as
applicable, (ii) in default in the performance of any obligation,
agreement, covenant or condition contained in any indenture, loan
agreement, mortgage, lease or other agreement or instrument that is
material to the Company and its subsidiaries, taken as a whole, to which
the Company or its subsidiaries is a party or by which the Company or its
subsidiaries or their respective property is bound, except with respect to
clause (ii) only, to the extent that such default would not reasonably be
expected to have a Material Adverse Effect.
(j) No consent, approval, authorization, or order of, or filing with,
any governmental agency or body or any court or any regulatory authority is
required for the consummation of the transactions contemplated by this
Agreement in connection with the issuance and sale of the Shares except for
(i) the registration of the Shares under the Securities Act and under the
Securities Exchange Act of 1934, as amended, and such consents, approvals,
authorizations, orders, or filings as may be required to be obtained or
made under state securities or "blue sky" laws or by the rules and
regulations of the National Association of Securities Dealers, Inc. in
connection with the purchase and sale of the Shares by the Underwriters and
(ii) such consents, approvals, authorizations, orders, or filings which
have been previously obtained or made or as to which the failure to so
obtain or make would not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect on the consummation by the
Company of the transactions contemplated by this Agreement.
(k) The issuance and sale of the Shares and the execution, delivery
and performance of this Agreement and compliance with the terms and
provisions hereof will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under, (i) any statute,
any rule, regulation or order of any governmental agency or body or any
court, domestic or foreign, having jurisdiction over the Company or any
subsidiary of the Company or any of their properties, (ii) any agreement or
instrument to which the Company or any subsidiary is a party or by which
the Company or any subsidiary is bound or to which any of the properties of
the Company or any subsidiary is subject, or (iii) the Restated Certificate
of Incorporation and Amended and Restated Bylaws of the Company or the
certificate of incorporation or certificate of formation, as applicable, or
by-laws or limited liability company agreement or limited partnership
agreement, as applicable, of any such subsidiary, except, in the case of
clauses (i) and (ii), for such breaches, violations or defaults as would
not, individually or in the aggregate, have a Material Adverse Effect on
the consummation of the transactions contemplated hereby by such parties.
The Company has full power and authority to authorize, issue and sell the
Shares as contemplated by this Agreement.
(l) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from that
set forth in the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement).
(m) Except as disclosed in the Registration Statement or Prospectus,
there are no pending actions, suits or proceedings against or involving the
Company, any of its subsidiaries or any of their respective properties that
would reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect, or to materially and adversely affect the ability
of the Company to perform its obligations under this Agreement, or which
are otherwise material in the context of the sale of the Shares; and no
such actions, suits or proceedings are threatened in writing or, to the
Company's knowledge, contemplated.
(n) The preliminary prospectus, dated February 2, 2005, filed as part
of the registration statement or any amendment thereto, or filed pursuant
to Rule 424 under the Securities Act, complied as to form when so filed in
all material respects (other than with respect to pricing terms) with the
Securities Act and the applicable rules and regulations of the Commission
thereunder.
(o) The Company is not, and after giving effect to the offering and
sale of the Shares and the application of the proceeds thereof as described
in the Prospectus will not be, required to register as an "investment
company" as such term is defined in the Investment Company Act of 1940, as
amended.
(p) Except as disclosed in the Registration Statement or Prospectus,
neither the Company nor any of its subsidiaries is in violation of any
statute, any rule, regulation, decision or order of any governmental agency
or body or any court, domestic or foreign, relating to the use, disposal or
release of hazardous or toxic substances or relating to the protection or
restoration of the environment or human exposure to hazardous or toxic
substances (collectively, "ENVIRONMENTAL LAWS"), owns or operates any real
property that, to the knowledge of the Company, is contaminated with any
substance that is subject to any environmental laws, is, to the knowledge
of the Company, liable for any off-site disposal or contamination pursuant
to any environmental laws, or is, to the knowledge of the Company, subject
to any claim relating to any environmental laws, which violation,
contamination, liability or claim would reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect; and
the Company is not aware of any pending investigation which might lead to
such a claim.
(q) Except as disclosed in the Registration Statement or Prospectus,
there are no contracts, agreements or understandings between the Company
and any person granting such person the right to require the Company to
file a registration statement under the Securities Act with respect to any
securities of the Company or to require the Company to include such
securities with the Shares registered pursuant to the Registration
Statement.
(r) Except as disclosed in the Prospectus, the Company and its
subsidiaries have good and marketable title to all real properties and all
other properties and assets owned by them that are material to the Company
and its subsidiaries taken as a whole, in each case free from liens,
encumbrances and defects that would materially affect the value thereof or
materially interfere with the use made or to be made thereof by them; and
except as disclosed in the Prospectus, the Company and its subsidiaries
hold any leased real or personal property that is material to the Company
and its subsidiaries taken as a whole under valid and enforceable leases
with no exceptions that would materially interfere with the use made or to
be made thereof by them; provided, that the Company and its subsidiaries
shall not be deemed to hold a less than fully marketable leasehold interest
solely because the consent of the lessor to future assignments has not been
obtained.
(s) The Company and its subsidiaries own, possess, have the right to
use, or can acquire on reasonable terms, adequate trademarks, trade names
and other rights to
inventions, know-how, patents, copyrights, confidential information and
other intellectual property (collectively, "INTELLECTUAL PROPERTY RIGHTS")
necessary to conduct the business now operated by them, except for such
failures to so own, possess or have the right to use or acquire such
intellectual property rights which would not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect, and
have not received any notice of infringement of, or conflict with, asserted
rights of others with respect to any intellectual property rights that, if
determined adversely to the Company or any of its subsidiaries, would
reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect.
(t) Except as disclosed in the Prospectus, no labor dispute with the
employees of the Company or any subsidiary (except for routine disciplinary
and grievance matters) exists or, to the knowledge of the Company, is
imminent that would reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect.
(u) The Company and its subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the businesses in which they
are engaged or as required by law.
(v) Except as disclosed in the Prospectus, the Company and its
subsidiaries possess adequate certificates, authorities or permits issued
by appropriate governmental agencies or bodies necessary to conduct the
business now operated by them, except for those which the failure to so
possess would not reasonably be expected to have a Material Adverse Effect,
and have not received any notice of proceedings relating to the revocation
or modification of any such certificate, authority or permit that, if
determined adversely to the Company or any of its subsidiaries, would,
individually or in the aggregate, have a Material Adverse Effect.
(w) The Company and each of its subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's general
or specific authorizations, (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability, (iii)
access to assets is permitted only in accordance with management's general
or specific authorization, and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(x) The Company has not offered, or caused Xxxxxx Xxxxxxx or its
affiliates to offer, Shares to any person, pursuant to the Directed Share
Program, outside of the United States.
(y) The Company has not offered, or caused Xxxxxx Xxxxxxx or its
affiliates to offer, Shares to any person pursuant to the Directed Share
Program with the intent to unlawfully influence (i) a customer or supplier
of the Company to alter the customer's or supplier's level or type of
business with the Company, or (ii) a trade journalist or publication to
write or publish favorable information about the Company or its products.
(z) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company or any subsidiary and any
person that would give rise to a valid claim against the Company, any
subsidiary or any Underwriter for a brokerage commission, finder's fee or
other like payment in connection with the execution and delivery of this
Agreement and the issuance and sale of the Shares.
(aa) The financial statements, together with the related schedules and
notes, included in the Registration Statement and the Prospectus present
fairly in all material respects the financial position of ANR Fund IX
Holdings, L.P. and Alpha NR Holding, Inc. and subsidiaries on a combined
basis as of the dates shown and their results of operations and cash flows
for the periods shown, and, except as otherwise disclosed in the
Prospectus, such financial statements have been prepared in conformity with
generally accepted accounting principles in the United States applied on a
consistent basis throughout the periods involved; and with respect to the
Company, the assumptions used in preparing the pro forma financial
statements included in the Prospectus provide a reasonable basis for
presenting the significant effects directly attributable to the
transactions or events described therein, the related pro forma adjustments
give appropriate effect to those assumptions, and the pro forma columns
therein reflect the proper application of those adjustments to the
corresponding historical financial statement amounts.
(bb) KPMG LLP, who have audited certain financial statements included
in the Prospectus, whose reports appear in the Prospectus and who have
delivered the initial letter referred to in Section 5(e) hereof, are
independent public accountants as contemplated by the Securities Act and
the rules and regulations of the Commission thereunder.
(cc) The Company and its subsidiaries maintain disclosure controls and
procedures (as defined as Rule 13a-15 of the Securities Exchange Act of
1934, as amended (the "EXCHANGE ACT")) designed to ensure that information
required to be disclosed by the Company, including its consolidated
subsidiaries, in the reports that it files or submits under the Exchange
Act is recorded, processed, summarized and reported in accordance with the
Exchange Act and the rules and regulations thereunder. The Company has
carried out evaluations, under the supervision and with the participation
of the Company's management, of the effectiveness of the design and
operation of the Company's disclosure controls and procedures in accordance
with Rule 13a-15 of the Exchange Act.
(dd) Neither the Company nor any of its subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee or
affiliate of the Company or any of its subsidiaries is aware of or has
taken any action, directly or indirectly, that would result in a violation
by such Persons of the Foreign Corrupt Practices Act of 1977, as amended,
and the rules and regulations thereunder (the "FCPA"), including, without
limitation, making use of the mails or any means or instrumentality of
interstate commerce corruptly in furtherance of an offer, payment, promise
to pay or authorization of the payment of any money, or other property,
gift, promise to give, or authorization of the giving of anything of value
to any "foreign official" (as such term is defined in the FCPA) or any
foreign political party or official thereof or any candidate for foreign
political office, in contravention of the FCPA and the Company, its
subsidiaries and, to the knowledge of the Company, its affiliates have
conducted their businesses in compliance with the FCPA and have instituted
and maintain policies and procedures designed to ensure, and which are
reasonably expected to continue to ensure, continued compliance therewith,
except for any such violation of the FCPA or failure to comply with the
FCPA or to institute and maintain such policies and procedures that would
not reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect.
(ee) Each pension plan and welfare plan established or maintained by
the Company and/or one or more of its subsidiaries is in compliance with
the currently applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended, and the regulations and published
interpretations thereunder ("ERISA"), except where noncompliance would not
reasonably be expected to have a Material Adverse Effect; and neither the
Company nor any of its subsidiaries has incurred or could reasonably be
expected to incur any withdrawal liability under Section 4201 of ERISA, any
liability under Section 4062, 4063 or 4064 of ERISA or any other liability
under Title IV of ERISA that would reasonably be expected to have a
Material Adverse Effect.
(ff) The transactions described in the Prospectus under the caption
"Internal Restructuring" have been consummated, other than (i) the
repayment in full of the Restructuring Notes (as defined therein) with the
net proceeds from the issuance and sale of Shares which will occur promptly
following the Closing Date and (ii) the pro rata distribution to Existing
Holders (as hereinafter defined) of the net proceeds from the sale of any
Additional Shares if the Underwriters exercise their over-allotment option
and the pro rata distribution to Existing Holders of Additional Shares in
an aggregate amount equal to 4,425,000 minus the actual number of
Additional Shares the Underwriters purchase pursuant to their
over-allotment option (the "SHARE DISTRIBUTION").
(gg) The statements set forth in the Prospectus under the caption
"Description of Capital Stock," in so far as they purport to constitute a
summary of the terms of the Common Stock, under the caption "Description of
Indebtedness," in so far as they purport to constitute a summary of the
terms of the Company's material indebtedness, and under the captions
"Shares Eligible For Future Sale," "Description of Indebtedness,"
"Environmental and Other Regulatory Matters" and "Material U.S. Federal
Income and Estate Tax Consequences to Non-U.S. Holders," in so far as they
purport to describe the provisions of laws and documents referred to
therein, are accurate, complete and fair in all material respects.
(hh) Schedule III hereto lists all of the holders (the "EXISTING
HOLDERS") of Common Stock immediately following the Internal Restructuring
described in the Prospectus and prior to the Closing Date (as defined
herein).
2. Agreements to Sell and Purchase. The Company hereby agrees to sell to
the several Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not
jointly, to purchase from the Company the respective numbers of Firm Shares set
forth in Schedule I hereto opposite its name at $[___] a share (the "PURCHASE
Price").
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the Underwriters the Additional Shares, and the Underwriters shall have the
right to purchase, severally and not jointly, up to 4,425,000 Additional Shares
in the aggregate at the Purchase Price. You may exercise this right on behalf of
the Underwriters in whole or from time to time in part by giving written notice
of each election to exercise the option not later than 30 days after the date of
this Agreement. Any exercise notice shall specify the number of Additional
Shares to be purchased by the Underwriters and the date on which such shares are
to be purchased. Each purchase date must be at least one business day after the
written notice is given and may not be earlier than the closing date for the
Firm Shares nor later than ten business days after the date of such notice.
Additional Shares may be purchased as provided in Section 4 hereof solely for
the purpose of covering over-allotments made in connection with the offering of
the Firm Shares. On each day, if any, that Additional Shares are to be purchased
(an "OPTION CLOSING DATE"), each Underwriter agrees, severally and not jointly,
to purchase the number of Additional Shares (subject to such adjustments to
eliminate fractional shares as you may determine) that bears the same proportion
to the total number of Additional Shares to be purchased on such Option Closing
Date as the number of Firm Shares set forth in Schedule I hereto opposite the
name of such Underwriter bears to the total number of Firm Shares.
The Company hereby agrees that, without the prior written consent of the
Managers on behalf of the Underwriters, it will not, during the period ending
180 days after the date of the Prospectus, (i) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase, lend, or otherwise
transfer or dispose of, directly or indirectly, any shares of Common Stock or
any securities convertible into or exercisable or exchangeable for Common Stock,
(ii) file any registration statement with the Commission relating to the
offering of any shares of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock or (iii) enter into any swap or
other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of the Common Stock, whether any such
transaction described in clause (i), (ii) or (iii) above is to be settled by
delivery of Common Stock or such other securities, in cash or otherwise.
The restrictions contained in the preceding paragraph shall not apply to
(A) the Shares to be sold hereunder, (B) the issuance by the Company of shares
of Common Stock upon the exercise of an option or warrant or the conversion of a
security outstanding on the date hereof of which the Underwriters have been
advised in writing, (C) shares of Common Stock issued in connection with the
consummation of the transactions described under the heading "Internal
Restructuring" in the Prospectus (the "INTERNAL RESTRUCTURING"), (D) the
issuance of shares of Common Stock in connection with the Share Distribution,
(E) grants, issuances or exercises under any existing employee benefit plans,
(F) the filing of a registration statement on Form S-8 relating to shares of
Common Stock issued under any existing employee benefit plans and/or the resale
of shares of Common Stock issued to members of management pursuant to the
Internal Restructuring or (G) the issuance of Common Stock in connection with
the acquisition of, or joint venture with, another company; provided that in the
case of any transfer, distribution or
issuance pursuant to clause (G), (i) each recipient shall sign and deliver a
lock-up letter substantially in the form of Exhibit A hereto and (ii) the
Company and such transferee shall not be required to, and shall not voluntarily,
file a report under the Exchange Act, reporting a reduction in beneficial
ownership of shares of Common Stock during the restricted period referred to in
the preceding paragraph..
The Company also agrees and consents to the entry of stop transfer
instructions with the Company's transfer agent and registrar against the
transfer of the undersigned's shares of Common Stock except in compliance with
the foregoing restrictions.
3. Terms of Public Offering. The Company is advised by you that the
Underwriters propose to make a public offering of their respective portions of
the Shares as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable. The Company is further
advised by you that the Shares are to be offered to the public initially at
$[___] a share (the "PUBLIC OFFERING PRICE") and to certain dealers selected by
you at a price that represents a concession not in excess of $[___] a share
under the Public Offering Price, and that any Underwriter may allow, and such
dealers may reallow, a concession, not in excess of $[___] a share, to any
Underwriter or to certain other dealers.
4. Payment and Delivery. Payment for the Firm Shares shall be made to the
Company in Federal or other funds immediately available in New York City against
delivery of such Firm Shares for the respective accounts of the several
Underwriters at 10:00 a.m., New York City time, on [___], 2005, or at such other
time on the same or such other date, not later than [___], 2005, as shall be
designated in writing by you. The time and date of such payment are hereinafter
referred to as the "CLOSING DATE."
Payment for any Additional Shares shall be made to the Company in Federal
or other funds immediately available in New York City against delivery of such
Additional Shares for the respective accounts of the several Underwriters at
10:00 a.m., New York City time, on the date specified in the corresponding
notice described in Section 2 or at such other time on the same or on such other
date, in any event not later than [___], 2005, as shall be designated in writing
by you. The time and date of such payment are hereinafter referred to as the
"OPTION CLOSING DATE."
The Firm Shares and Additional Shares shall be registered in such names and
in such denominations as you shall request in writing not later than one full
business day prior to the Closing Date or the applicable Option Closing Date, as
the case may be. The Firm Shares and Additional Shares shall be delivered to you
on the Closing Date or an Option Closing Date, as the case may be, for the
respective accounts of the several Underwriters, with any transfer taxes payable
in connection with the transfer of the Shares to the Underwriters duly paid,
against payment of the Purchase Price therefor.
5. Conditions to the Underwriters' Obligations. The obligations of the
Company to sell the Shares to the Underwriters and the several obligations of
the Underwriters to purchase and pay for the Shares on the Closing Date are
subject to the condition that the Registration Statement shall have become
effective not later than [___] (New York City time) on the date hereof.
The several obligations of the Underwriters are subject to the following
further conditions:
(a) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of
any review for a possible change that does not indicate the direction
of the possible change, in the rating accorded any of the Company's
securities (including, without limitation, the 10% Senior Notes due
2012 issued by Alpha Natural Resources, LLC and Alpha Natural
Resources Capital Corp.) by any "nationally recognized statistical
rating organization," as such term is defined for purposes of Rule
436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or
otherwise, or in the earnings, properties, business or operations of
the Company and its subsidiaries, taken as a whole, from that set
forth in the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement) that, in the
judgment of the Managers, is material and adverse and that makes it,
in the judgment of the Managers, impracticable to market the Shares on
the terms and in the manner contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of
the Company, to the effect set forth in Section 5(a)(ii) above and to the
effect that the representations and warranties of the Company contained in
this Agreement that are not qualified by materiality are true and correct
in all material respects, and that the representations and warranties of
the Company contained in this Agreement that are qualified by materiality
are true and correct, in each case, as of the Closing Date, and that the
Company has, in all material respects, complied with all of the agreements
and satisfied all of the conditions on its part to be performed or
satisfied hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely upon the best
of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date (i) an
opinion and negative assurance statement of Bartlit Xxxx Xxxxxx Xxxxxxxxx &
Xxxxx LLP, special counsel for the Company, addressed to the Underwriters
and substantially in the form of Exhibits B and C hereto; (ii) an opinion
of Xxxxxxx Xxxxxxxx & Xxxxxxxx LLP, special counsel for the Company,
addressed to the Underwriters and substantially in the form of Exhibit D
hereto; and (iii) an opinion and negative assurance statement of Xxxxxx X.
Xxxxxx, Vice President and General Counsel of the Company, addressed to the
Underwriters and substantially in the form of Exhibit E hereto, in each
case dated the Closing Date.
(d) The Underwriters shall have received on the Closing Date an
opinion of Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, dated the
Closing Date, with respect to the incorporation of the Company, the
validity of the Shares delivered on such Closing Date, the Registration
Statement, the Prospectus and other related matters as the Managers may
require, and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon
such matters.
(e) The Underwriters shall have received, on each of the date hereof
and the Closing Date, a letter dated the date hereof or the Closing Date,
as the case may be, in form and substance satisfactory to the Underwriters,
from KPMG LLP, independent public accountants, containing statements and
information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement and
the Prospectus; provided that the letter delivered on the Closing Date
shall use a "cut-off date" not earlier than the date hereof.
(f) The Underwriters shall have received on the date hereof, a
certificate dated the date hereof, in form and substance satisfactory to
the Underwriters, from Xxxxx Xxxxxx, Vice President and Chief Financial
Officer of the Company, containing statements with respect to certain
financial information contained in the Registration Statement and the
Prospectus.
(g) The transactions described in the Prospectus under the caption
"Internal Restructuring" shall have been consummated; other than the
repurchase of the Restructuring Notes (as defined therein) with the net
proceeds from the issuance and sale of the Shares which will occur promptly
following the Closing Date.
(h) The Shares shall been approved for listing on the New York Stock
Exchange, subject to notice of issuance.
(i) The "lock-up" agreements, each substantially in the form of
Exhibit A hereto, between you and certain officers and directors of the
Company and the Existing Holders relating to sales and certain other
dispositions of shares of Common Stock or certain other securities,
delivered to you on or before the date hereof, shall be in full force and
effect on the Closing Date.
The several obligations of the Underwriters to purchase Additional Shares
hereunder are subject to the delivery to you on the applicable Option Closing
Date of such documents as you may reasonably request with respect to the good
standing of the Company, the due authorization and issuance of the Additional
Shares to be sold on such Option Closing Date and other matters related to the
issuance of such Additional Shares.
6. Covenants of the Company. In further consideration of the agreements of
the Underwriters herein contained, the Company covenants with each Underwriter
as follows:
(a) To furnish to you, without charge, eight signed copies of the
Registration Statement (including exhibits thereto) and for delivery to
each other Underwriter a conformed copy of the Registration Statement
(without exhibits thereto) and to furnish to
you in New York City, without charge, prior to 10:00 a.m. New York City
time on the second business day next succeeding the date of this Agreement
and during the period mentioned in Section 6(c) below, as many copies of
the Prospectus and any supplements and amendments thereto or to the
Registration Statement as you may reasonably request.
(b) Before amending or supplementing the Registration Statement or the
Prospectus, to furnish to you a copy of each such proposed amendment or
supplement and not to file any such proposed amendment or supplement to
which the Managers reasonably object, and to file with the Commission
within the applicable period specified in Rule 424(b) under the Securities
Act any prospectus required to be filed pursuant to such Rule.
(c) If, during such period after the first date of the public offering
of the Shares as in the opinion of counsel for the Underwriters the
Prospectus is required by law to be delivered in connection with sales by
an Underwriter or dealer, any event shall occur or condition exist as a
result of which, in the opinion of counsel for the Underwriters or counsel
for the Company, it is necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances
when the Prospectus is delivered to a purchaser, not misleading, or if, in
the opinion of counsel for the Underwriters or counsel for the Company, it
is necessary to amend or supplement the Prospectus to comply with
applicable law, the Company will promptly prepare, file with the Commission
and furnish, at its own expense (provided, however, after nine months from
the date of the Prospectus, any such preparing, filling and furnishing will
be at the expense of the Underwriters to the extent such expense is
reasonable), to the Underwriters and to the dealers (whose names and
addresses you will furnish to the Company) to which Shares may have been
sold by you on behalf of the Underwriters and to any other dealers upon
request, either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not, in the
light of the circumstances when the Prospectus is delivered to a purchaser,
be misleading or so that the Prospectus, as amended or supplemented, will
comply with law.
(d) To refrain from taking, directly or indirectly, actions designed
to or which constitute or which might reasonably be expected to result in,
under the Exchange Act or otherwise, unlawful stabilization or manipulation
of the price of any security of the Company.
(e) To endeavor to qualify the Shares for offer and sale under the
securities or "blue sky" laws of such jurisdictions as you shall reasonably
request; provided that in no event shall the Company be obligated to
qualify to do business in any jurisdiction where it is not now so qualified
or to take any action that would subject it to service of process in suits,
other than those arising out of the offering or sale of the Shares, in any
jurisdiction where it is not now so subject or to subject itself to
taxation in excess of a nominal amount in respect of doing business in any
jurisdiction.
(f) To make generally available to the Company's security holders and
to the Managers as soon as practicable an earning statement covering the
twelve-month period
ending March 31, 2006 that satisfies the provisions of Section 11(a) of the
Securities Act and the rules and regulations of the Commission thereunder.
(g) To comply with all applicable securities and other applicable
laws, rules and regulations in each jurisdiction in which the Directed
Shares are offered in connection with the Directed Share Program.
(h) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
expenses incident to the performance of its obligations under this
Agreement, including: (i) the fees, disbursements and expenses of the
Company's counsel and the Company's accountants in connection with the
registration and delivery of the Shares under the Securities Act and all
other fees or expenses in connection with the preparation and filing of the
Registration Statement, any preliminary prospectus, the Prospectus and
amendments and supplements to any of the foregoing, including all printing
costs associated therewith, and the mailing and delivering of copies
thereof to the Underwriters and dealers, in the quantities hereinabove
specified, (ii) all costs and expenses related to the transfer and delivery
of the Shares to the Underwriters, including any transfer or other taxes
payable thereon, (iii) all fees and disbursements of counsel incurred by
the Underwriters in connection with the Directed Share Program and stamp
duties, similar taxes or duties or other taxes, if any, incurred by the
Underwriters in connection with the Directed Share Program, (iv) the cost
of printing or producing any "blue sky" or Legal Investment memorandum in
connection with the offer and sale of the Shares under state securities
laws and all expenses in connection with the qualification of the Shares
for offer and sale under state securities laws as provided in Section 6(d)
hereof, including filing fees and the reasonable fees and disbursements of
counsel for the Underwriters in connection with such qualification and in
connection with the "blue sky" or Legal Investment memorandum, (v) all
filing fees and the reasonable fees and disbursements of counsel to the
Underwriters incurred in connection with the review and qualification of
the offering of the Shares by the National Association of Securities
Dealers, Inc., (vi) all fees and expenses in connection with the
preparation and filing of the registration statement on Form 8-A relating
to the Common Stock and all costs and expenses incident to listing the
Shares on the New York Stock Exchange, (vii) the cost of printing
certificates representing the Shares, (viii) the costs and charges of any
transfer agent, registrar or depositary, (ix) the costs and expenses of the
Company relating to investor presentations on any "road show" undertaken in
connection with the marketing of the offering of the Shares, including,
without limitation, expenses associated with the production of road show
slides and graphics, fees and expenses of any consultants engaged in
connection with the road show presentations with the prior approval of the
Company, travel and lodging expenses of the representatives and officers of
the Company and any such consultants, and one-half of the cost of any
aircraft chartered in connection with the road show, (x) the document
production charges and expenses associated with printing this Agreement and
(xi) all other costs and expenses incident to the performance of the
obligations of the Company hereunder for which provision is not otherwise
made in this Section. It is understood, however, that except as provided in
this Section, Section 7 entitled "Indemnity and Contribution", and the last
paragraph of Section 10 below, the Underwriters will pay all of their costs
and expenses, including
fees and disbursements of their counsel, stock transfer taxes payable on
resale of any of the Shares by them, any advertising expenses connected
with any offers they may make and all travel and lodging expenses of the
representatives of the Underwriters in connection with the road show. It
being understood, however, that the fees and disbursements of counsel for
the Underwriters that the Company may be required to pay pursuant to
clauses (iv) and (v) of this Section 5(h) shall not exceed $25,000 in the
aggregate.
(i) To comply with all applicable securities and other applicable
laws, rules and regulations, including, without limitation, the
Xxxxxxxx-Xxxxx Act of 2002 ("XXXXXXXX-XXXXX"), and to use its best efforts
to cause the Company's directors and officers, in their capacities as such,
to comply with such laws, rules and regulations, including, without
limitation, the provisions of Xxxxxxxx-Xxxxx.
7. Indemnity and Contribution. (a) The Company agrees to indemnify and hold
harmless each Underwriter, each person, if any, who controls any Underwriter
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act, and each affiliate of any Underwriter within the meaning of
Rule 405 under the Securities Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information furnished to the Company in
writing by or on behalf of the Underwriter through the Managers expressly for
use therein; provided, however, that the foregoing indemnity agreement with
respect to any preliminary prospectus shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims, damages or
liabilities purchased Shares, or any person controlling such Underwriter, if a
copy of the Prospectus (as then amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) was not sent or given by
or on behalf of such Underwriter to such person, if required by law so to have
been delivered, at or prior to the written confirmation of the sale of the
Shares to such person, and if the Prospectus (as so amended or supplemented)
would have cured the defect giving rise to such losses, claims, damages or
liabilities, unless such failure is the result of noncompliance by the Company
with Section 6(a) hereof.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section 20
of the Exchange Act to the same extent as the foregoing indemnity from the
Company to such Underwriter, but only with reference to written information
relating to such Underwriter furnished to the Company by or on behalf of
such Underwriter through the Managers specifically for inclusion in the
Registration Statement, any preliminary prospectus, the Prospectus or any
amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may
be sought pursuant to Section 7(a) or 7(b), such person (the "INDEMNIFIED
PARTY") shall promptly notify the person against whom such indemnity may be
sought (the "INDEMNIFYING PARTY") in writing and the indemnifying party,
upon request of the indemnified party or at the option of the indemnifying
party, shall retain counsel (and local counsel, if necessary) reasonably
satisfactory to the indemnified party to represent the indemnified party
and any others the indemnifying party may designate in such proceeding and
shall pay the reasonable fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have
the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to
the retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the indemnifying
party and the indemnified party and representation of both parties by the
same counsel would be inappropriate due to actual or potential differing
interests between them (based on the advice of counsel to the indemnified
party). It is understood that the indemnifying party shall not, in respect
of the legal expenses of any indemnified party in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for
the fees and expenses of more than one separate firm (in addition to any
local counsel) for all such indemnified parties and that all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by the Managers, in the case of parties indemnified
pursuant to Section 7(a), and by the Company, in the case of parties
indemnified pursuant to Section 7(b). The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment
for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding 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 includes an
unconditional release of such indemnified party from all liability on
claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 7(a) or
7(b) is unavailable to an indemnified party or insufficient in respect of
any losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Shares or (ii) if
the allocation provided by clause 7(d)(i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause 7(d)(i) above but also the
relative fault
of the Company on the one hand and of the Underwriters on the other hand in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one
hand and the Underwriters on the other hand in connection with the offering
of the Shares shall be deemed to be in the same respective proportions as
the net proceeds from the offering of the Shares (before deducting
expenses) received by the Company and the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the
table on the cover of the Prospectus, bear to the aggregate Public Offering
Price of the Shares. The relative fault of the Company on the one hand and
the Underwriters on the other hand 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 or by the Underwriters and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Underwriters' respective obligations to contribute pursuant to this Section
7 are several in proportion to the respective number of Shares they have
purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be just
or equitable if contribution pursuant to this Section 7 were determined by
pro rata allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in Section 7(d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 7, no Underwriter
shall be required to contribute any amount in excess of the amount by which
the total price at which the Shares underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages
that such Underwriter has 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. The
remedies provided for in this Section 7 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this
Section 7 and the representations, warranties and other statements of the
Company contained in this Agreement shall remain operative and in full
force and effect regardless of (i) any termination of this Agreement, (ii)
any investigation made by or on behalf of any Underwriter, any person
controlling any Underwriter or any affiliate of any Underwriter or by or on
behalf of the Company, its officers or directors or any person controlling
the Company and (iii) acceptance of and payment for any of the Shares.
8. Directed Share Program Indemnification. (a) The Company agrees to
indemnify and hold harmless Xxxxxx Xxxxxxx and its affiliates and each person,
if any, who controls Xxxxxx Xxxxxxx or its affiliates within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act
("XXXXXX XXXXXXX ENTITIES"), from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim) (i) caused by any untrue statement or alleged untrue
statement of a material fact contained in any material prepared by or with the
consent of the Company for distribution to Participants in connection with the
Directed Share Program, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading; (ii) caused by the failure of any Participant
to pay for and accept delivery of Directed Shares that the Participant has
agreed to purchase; or (iii) related to, arising out of, or in connection with
the Directed Share Program other than losses, claims, damages or liabilities (or
expenses relating thereto) that are finally judicially determined to have
resulted from the bad faith or gross negligence of Xxxxxx Xxxxxxx Entities.
(b) In case any proceeding (including any governmental investigation)
shall be instituted involving any Xxxxxx Xxxxxxx Entity in respect of which
indemnity may be sought pursuant to Section 8(a), the Xxxxxx Xxxxxxx Entity
seeking indemnity shall promptly notify the Company in writing and the
Company, upon request of the Xxxxxx Xxxxxxx Entity or at the option of the
Company, shall retain counsel reasonably satisfactory to the Xxxxxx Xxxxxxx
Entity to represent the Xxxxxx Xxxxxxx Entity and any others the Company
may designate in such proceeding and shall pay the reasonable fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any Xxxxxx Xxxxxxx Entity shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the
expense of such Xxxxxx Xxxxxxx Entity unless (i) the Company shall have
agreed to the retention of such counsel or (ii) the named parties to any
such proceeding (including any impleaded parties) include both the Company
and the Xxxxxx Xxxxxxx Entity and representation of both parties by the
same counsel would be inappropriate due to actual or potential differing
interests between them (based on the advice of counsel to the Xxxxxx
Xxxxxxx Entities). The Company shall not, in respect of the legal expenses
of the Xxxxxx Xxxxxxx Entities in connection with any proceeding or related
proceedings the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all
Xxxxxx Xxxxxxx Entities. Any such firm for the Xxxxxx Xxxxxxx Entities
shall be designated in writing by Xxxxxx Xxxxxxx. The Company shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment
for the plaintiff, the Company agrees to indemnify the Xxxxxx Xxxxxxx
Entities from and against any loss or liability by reason of such
settlement or judgment. The Company shall not, without the prior written
consent of Xxxxxx Xxxxxxx, effect any settlement of any pending or
threatened proceeding in respect of which any Xxxxxx Xxxxxxx Entity is or
could have been a party and indemnity could have been sought hereunder by
such Xxxxxx Xxxxxxx Entity, unless such settlement includes an
unconditional release of the Xxxxxx Xxxxxxx Entities from all liability on
claims that are the subject matter of such proceeding.
(c) To the extent the indemnification provided for in Section 8(a) is
unavailable to a Xxxxxx Xxxxxxx Entity or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then the
Company, in lieu of indemnifying the Xxxxxx Xxxxxxx Entity thereunder,
shall contribute to the amount paid or payable by the Xxxxxx Xxxxxxx Entity
as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Xxxxxx Xxxxxxx Entities on the other
hand from the offering of the Directed Shares or (ii) if the allocation
provided by clause 8(c)(i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause 8(c)(i) above but also the relative fault of the
Company on the one hand and of the Xxxxxx Xxxxxxx Entities on the other
hand in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company on
the one hand and of the Xxxxxx Xxxxxxx Entities on the other hand in
connection with the offering of the Directed Shares shall be deemed to be
in the same respective proportions as the net proceeds from the offering of
the Directed Shares (before deducting expenses) and the total underwriting
discounts and commissions received by the Xxxxxx Xxxxxxx Entities for the
Directed Shares, bear to the aggregate Public Offering Price of the Shares.
If the loss, claim, damage or liability is caused by an untrue or alleged
untrue statement of a material fact, the relative fault of the Company on
the one hand and the Xxxxxx Xxxxxxx Entities on the other hand shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement or the omission or alleged omission relates to
information supplied by the Company or by the Xxxxxx Xxxxxxx Entities and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(d) The Company and the Xxxxxx Xxxxxxx Entities agree that it would
not be just or equitable if contribution pursuant to this Section 8 were
determined by pro rata allocation (even if the Xxxxxx Xxxxxxx Entities were
treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations
referred to in Section 8(c). The amount paid or payable by the Xxxxxx
Xxxxxxx Entities as a result of the losses, claims, damages and liabilities
referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by the Xxxxxx Xxxxxxx Entities in connection
with investigating or defending any such action or claim. Notwithstanding
the provisions of this Section 8, no Xxxxxx Xxxxxxx Entity shall be
required to contribute any amount in excess of the amount by which the
total price at which the Directed Shares distributed to the public were
offered to the public exceeds the amount of any damages that such Xxxxxx
Xxxxxxx Entity has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. The remedies
provided for in this Section 8 are not exclusive and shall not limit any
rights or remedies which may otherwise be available to any Xxxxxx Xxxxxxx
Entity at law or in equity.
(e) The indemnity and contribution provisions contained in this
Section 8 shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any Xxxxxx Xxxxxxx Entity or
the Company, its officers or directors or any person controlling the
Company and (iii) acceptance of and payment for any of the Directed Shares.
9. Termination. The Underwriters may terminate this Agreement by notice
given by the Managers to the Company, if after the execution and delivery of
this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on, or by, as the case may be, any of the
New York Stock Exchange or the Nasdaq National Market, (ii) trading of any
securities of the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a material disruption in securities settlement,
payment or clearance services in the United States or other relevant
jurisdiction shall have occurred, (iv) any moratorium on commercial banking
activities shall have been declared by Federal or New York State authorities or
(v) there shall have occurred any outbreak or escalation of hostilities, or any
change in financial markets or any calamity or crisis that, in your judgment, is
material and adverse and which, singly or together with any other event
specified in this clause (v), makes it, in the judgment of the Managers,
impracticable or inadvisable to proceed with the offer, sale or delivery of the
Shares on the terms and in the manner contemplated in the Prospectus.
10. Effectiveness; Defaulting Underwriters. This Agreement shall become
effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date or an Option Closing Date, as the case may be, any
one or more of the Underwriters shall fail or refuse to purchase Shares that it
has or they have agreed to purchase hereunder on such date, and the aggregate
number of Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase is not more than one-tenth of the aggregate number
of the Shares to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the number of Firm Shares set forth
opposite their respective names in Schedule I bears to the aggregate number of
Firm Shares set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as you may specify, to purchase the
Shares which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase on such date; provided that in no event shall the number of
Shares that any Underwriter has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 10 by an amount in excess of one-ninth of
such number of Shares without the written consent of such Underwriter. If, on
the Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Firm Shares and the aggregate number of Firm Shares with respect to
which such default occurs is more than one-tenth of the aggregate number of Firm
Shares to be purchased, and arrangements satisfactory to you and the Company for
the purchase of such Firm Shares are not made within 36 hours after such
default, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either you or the
Company shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. If, on an Option Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Additional Shares and the
aggregate number of Additional Shares with respect to which such default occurs
is more than one-tenth of the aggregate number of Additional Shares to be
purchased on such Option Closing Date, the non-defaulting Underwriters shall
have the option to (i) terminate their obligation hereunder to purchase the
Additional Shares to be sold on such Option Closing Date or (ii) purchase not
less than the number of Additional Shares that such
non-defaulting Underwriters would have been obligated to purchase in the
absence of such default. Any action taken under this paragraph shall not relieve
any defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of the Company to comply with the
terms or to fulfill any of the conditions of this Agreement, other than by
reason of a default by any of the Underwriters described in the preceding
paragraph or if for any reason the Company shall be unable to perform its
obligations under this Agreement, the Company will reimburse the Underwriters or
such Underwriters as have so terminated this Agreement with respect to
themselves, severally through the Managers on demand, for all out-of-pocket
expenses (including the reasonable fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
11. Counterparts. This Agreement may be signed in two or more counterparts
(which may be delivered in facsimile form), each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument.
12. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Underwriters, will be mailed, delivered or
telefaxed to the Xxxxxx Xxxxxxx Equity Capital Markets Syndicates Desk (fax no:
(000) 000-0000) and confirmed to Xxxxxx Xxxxxxx at 0000 Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: General Counsel; or, if sent to the Company, will be
mailed, delivered or telefaxed to ((000) 000-0000) and confirmed to it at 000
Xxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention General Counsel.
13. Applicable Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
14. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
Very truly yours,
ALPHA NATURAL RESOURCES, INC.
By:
------------------------------------
Name:
Title:
Accepted as of the date hereof
Xxxxxx Xxxxxxx & Co. Incorporated
Citigroup Global Markets Inc.
UBS Securities LLC
Bear, Xxxxxxx & Co. Inc.
Xxxxxx Brothers Inc.
ABN AMRO Rothschild LLC
Natexis Bleichroeder Inc.
Acting severally on behalf of themselves and the
several Underwriters named in Schedule I
hereto.
By: Xxxxxx Xxxxxxx & Co. Incorporated
By:
---------------------------------
Name:
Title:
SCHEDULE I
UNDERWRITER NUMBER OF FIRM SHARES
TO BE PURCHASED
Xxxxxx Xxxxxxx & Co., Incorporated
Citigroup Global Investors Inc.
UBS Securities LLC
Bear, Xxxxxxx & Co. Inc.
Xxxxxx Brothers Inc.
ABN AMRO Rothschild LLC
Natexis Bleichroeder Inc.
----------------------------------------
----------------------------------------
Total:
----------------------------
I-1
SCHEDULE II
Subsidiaries:*
State of Incorporation
Name of Subsidiary or Organization
------------------ ----------------------
1. Alpha Coal Sales Co., LLC Delaware
2. Alpha Land and Reserves, LLC Delaware
3. Alpha Natural Resources, LLC Delaware
4. Alpha Natural Resources Capital Corp. Delaware
5. Alpha Natural Resources Services, LLC Delaware
6. Alpha NR Holding, Inc. Delaware
7. Alpha NR Ventures, Inc. Delaware
8. Alpha Terminal Company, LLC Delaware
9. AMFIRE, LLC Delaware
10. AMFIRE Holdings, Inc. Delaware
11. AMFIRE Mining Company, LLC Delaware
12. AMFIRE WV, L.P. Delaware
13. ANR Holdings, LLC Delaware
14. Black Dog Coal Corp. Virginia
15. Xxxxxx Run Mining Company, LLC Delaware
16. Xxxxxxxxx-Xxxxxxx Coal Company, LLC Delaware
17. Enterprise Mining Company, LLC Delaware
18. Xxxxxxxxx Coal Co., LLC Delaware
19. Gallup Transportation and Transloading
Company, LLC. New Mexico
20. Xxxxxxx Processing Company, LLC West Virginia
21. Xxxxxx Processing Company, LLC West Virginia
22. Kingwood Mining Company, LLC Delaware
23. Litwar Processing Company, LLC West Virginia
II-1
24. Maxxim Rebuild Co., LLC Delaware
25. Maxxim Shared Services, LLC Delaware
26. Maxxum Carbon Resources, LLC Delaware
27. XxXxxxxx-Wyoming Coal Company, LLC Delaware
28. NATIONAL KING COAL LLC Colorado
29. Paramont Coal Company Virginia, LLC Delaware
30. Riverside Energy Company, LLC West Virginia
31. Solomons Mining Company West Virginia
* To become subsidiaries following the internal restructuring as described in
the prospectus under "Internal Restructuring."
II-2
SCHEDULE III
Existing Holders:
TOTAL SHARES HELD
NAME OF EXISTING HOLDER PRE-IPO
------------------------------------ -----------------
Xxxxxxx X. Xxxxxxx 930,964
Xxxxx X. Xxxxxxxxxxx 465,477
D. Xxxxx Xxxx 372,377
Xxxxx X. Xxxxxx 279,299
Xxxxxxx X. Xxxxxxx, Xx. 148,964
Xxxxxxx X. Xxxxx 277,214
Xxxxx X. Xxxxx 111,696
Xxxxxx X. Xxxxxx 111,696
Xxx Xxxxx Xxxxxxxxx, Xx. 37,235
Xxxxxx Xxxxxxx Xxxxxx 37,235
REI, Inc. 1,288,521
RRD, Inc. 1,240,309
Still Run Coal Company, Inc. 210,854
SCM, Inc. 307,662
Newhall Pocahontas Energy, Inc. 164,124
Creekside Energy Development Company 1,568,071
Redbank, Inc. 368,065
Vollow Resources LLC 1,091,097
Beta Resources, LLC 1,126,250
Tanoma Energy, Inc. 2,824,863
Dunamis Resources, Inc. 116,218
I-22 Processing, Inc. 145,940
Madison Mining Company LLC 124,754
Laurel Energy, L.P. 684,148
Laurel Resources, L.P. 91,020
First Reserve Fund IX, L.P. 12,462,992
ANR Fund IX Holdings, L.P. 1,535,919
Madison Capital Funding LLC 164,616
III-1
EXHIBIT A
[FORM OF LOCK-UP LETTER]
February __, 2005
Xxxxxx Xxxxxxx & Co. Incorporated
Citigroup Global Markets Inc.
UBS Securities LLC
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Dear Sirs and Mesdames:
The undersigned understands that Xxxxxx Xxxxxxx & Co. Incorporated
("XXXXXX XXXXXXX") and Citigroup Global Markets Inc. ("CGMI") propose to enter
into an Underwriting Agreement (the "UNDERWRITING AGREEMENT") with Alpha Natural
Resources, Inc., a Delaware corporation (the "COMPANY"), providing for the
public offering (the "PUBLIC OFFERING") by the several Underwriters, including
Xxxxxx Xxxxxxx and CGMI (the "UNDERWRITERS"), of ___ shares (the "SHARES") of
the Common Stock, $0.01 par value per share, of the Company (the "COMMON
STOCK").
To induce the Underwriters that may participate in the Public Offering
to continue their efforts in connection with the Public Offering, the
undersigned hereby agrees that, without the prior written consent of Xxxxxx
Xxxxxxx and CGMI on behalf of the Underwriters, it will not, during the period
commencing on the date hereof and ending 180 days after the date of the final
prospectus relating to the Public Offering (the "PROSPECTUS"), (1) offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any
shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock, or (2) enter into any swap or other arrangement
that transfers to another, in whole or in part, any of the economic consequences
of ownership of the Common Stock, whether any such transaction described in
clause (1) or (2) above is to be settled by delivery of Common Stock or such
other securities, in cash or otherwise. The foregoing sentence shall not apply
to (a) transactions by any person relating to shares of Common Stock or other
securities acquired in open market transactions after the completion of the
Public Offering, provided that no filing by any party under the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT") shall be required or shall
be voluntarily made in connection with subsequent sales of Common Stock or other
securities acquired in such open market transactions, (b) if the undersigned is
an executive officer of the Company, the entry by the undersigned into written
trading plans designed to comply with Rule 10b5-1 of the Exchange Ace, provided
that no sales or other dispositions may occur under such plans until the
expiration of the restricted period referred to in the foregoing sentence, (c)
transfers of shares of Common Stock or any security convertible into Common
Stock as a bona fide gift or gifts or as a result of testate, intestate
A-1
succession or bona fide estate planning, (d) transfers by the undersigned to a
trust, partnership, limited liability company or other entity, all of the
beneficial interests of which are held, directly or indirectly, by the
undersigned, (e) distributions of shares of Common Stock or any security
convertible into Common Stock to limited partners or stockholders of the
undersigned or (f) transfers of shares of Common Stock in connection with the
consummation of the transactions described under the heading "Internal
Restructuring" in the Prospectus; provided that in the case of any transfer or
distribution pursuant to clause (c), (d) or (e), (i) each transferee or
distributee shall sign and deliver a lock-up letter substantially in the form of
Exhibit A to the Underwriting Agreement and (ii) the undersigned and the
transferee shall not be required to, and shall not voluntarily, file a report
under the Exchange Act, reporting a reduction in beneficial ownership of shares
of Common Stock during the restricted period referred to in the foregoing
sentence; provided, further, that this clause (ii) shall not apply to (c) above
with respect to any transfers of shares of Common Stock by Xxxxxxx X. Xxxxxxx to
the Xxxxxxx X. Xxxxxxx Family Limited Partnership, or such other limited
partnership, trust or investment vehicle, in connection with bona fide estate
planning, provided that the Xxxxxxx X. Xxxxxxx Family Limited Partnership, or
such other limited partnership, trust or investment vehicle, as applicable,
complies with the requirements of clause (i) above. In addition, the undersigned
agrees that, without the prior written consent of Xxxxxx Xxxxxxx and CGMI on
behalf of the Underwriters, it will not, during the period commencing on the
date hereof and ending 180 days after the date of the Prospectus, make any
demand for or exercise any right with respect to, the registration of any shares
of Common Stock or any security convertible into or exercisable or exchangeable
for Common Stock; provided that, if applicable, the undersigned may issue to the
Company a notice of demand pursuant to the Stockholders Agreement of the
Company, dated February [___], 2005, so long as no registration statement is
filed during the period ending 180 days after the date of the Prospectus. The
undersigned also agrees and consents to the entry of stop transfer instructions
with the Company's transfer agent and registrar against the transfer of the
undersigned's share of Common Stock except in compliance with the foregoing
restrictions.
The undersigned understands that the Company and the Underwriters are
relying upon this agreement in proceeding toward consummation of the Public
Offering. The undersigned further understands that this agreement is irrevocable
and shall be binding upon the undersigned's heirs, legal representatives,
successors and assigns.
Whether or not the Public Offering actually occurs depends on a number
of factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
Very truly yours,
----------------------------------------
(Name)
----------------------------------------
(Address)
A-2
EXHIBIT B
[FORM OF BARTLIT XXXX OPINION]
February __, 2005
Xxxxxx Xxxxxxx & Co. Incorporated
Citigroup Global Markets Inc.
UBS Securities LLC
Bear, Xxxxxxx & Co. Inc.
Xxxxxx Brothers Inc.
ABN AMRO Rothschild LLC
Natexis Bleichroeder Inc.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Alpha Natural Resources, Inc.
Ladies and Gentlemen:
We have acted as special counsel to Alpha Natural Resources, Inc., a
Delaware corporation (the "Company"), in connection with the sale by the Company
and the purchase by the several Underwriters (the "Underwriters") named in
Schedule I to the Underwriting Agreement, dated February __, 2005 (the
"Underwriting Agreement"), among the Company, Xxxxxx Xxxxxxx & Co. Incorporated,
Citigroup Global Markets Inc., UBS Securities LLC, Bear, Xxxxxx & Co. Inc.,
Xxxxxx Brothers Inc., ABN AMRO Rothschild LLC and Natexis Bleichroeder Inc., an
aggregate of 29,500,000 shares (the "Firm Shares") of the Company's common
stock, par value $0.01 per share (the "Common Stock"), plus an option granted by
the Company to the Underwriters to purchase up to an additional 4,425,000 shares
(the "Option Shares" and, together with the Firm Shares, the "Shares") of Common
Stock to cover over-allotments. Capitalized terms not otherwise defined in this
letter shall have the respective meanings ascribed to them by the Underwriting
Agreement.
This opinion is delivered to you at the Company's request pursuant to
Section 5(c)(i) of the Underwriting Agreement. Concurrent with the delivery of
this opinion, (i) Xxxxxxx Xxxxxxx & Xxxxxxx, LLP, special New York counsel to
the Company, and (ii) Xxxxxx X. Xxxxxx, Vice President and General Counsel of
the Company, are delivering to you separate opinions to which we refer you for
further information regarding legal matters arising under the Underwriting
Agreement.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of the following:
_ an executed copy of the Underwriting Agreement;
B-1
_ the Registration Statement on Form S-1 (File No. 333-121002)
relating to the Shares, filed by the Company with the Securities
and Exchange Commission (the "Commission") under the Securities
Act of 1933, as amended (the "Securities Act"), on December 6,
2004, as amended by Amendment No. 1 thereto filed with the
Commission on January 12, 2005, Amendment No. 2 thereto filed
with the Commission on February 2, 2005 and Amendment No. 3
thereto filed with the Commission on February __, 2005,
including information deemed to be part of the Registration
Statement at the time of effectiveness pursuant to Rule 430A of
the rules and regulations under the Securities Act (such
Registration Statement, as amended and declared effective by the
Commission, being hereinafter referred to as the "Registration
Statement");
_ the final Prospectus, dated February __, 2005 relating to the
Shares, filed with the Commission pursuant to Rule 424(b) of the
rules and regulations under the Securities Act (the
"Prospectus");
_ copies of the Company's (i) Restated Certificate of
Incorporation, certified by the Secretary of State of the State
of Delaware, and (ii) Amended and Restated Bylaws (collectively,
the "Organizational Documents"), each certified by an officer of
the Company to be true and correct on the date of this letter;
_ a copy of a certificate of the Secretary of State of the State of
Delaware dated February __, 2005, certifying that the Company
is in good standing in the State of Delaware as of such date;
_ the resolutions adopted by the Board of Directors of the Company
and a Pricing Committee of the Board of Directors of the Company
relating to, among other things, the issuance and sale of the
Shares;
_ a specimen certificate representing the Common Stock of the
Company;
_ copies of other certificates and documents delivered at the
Closing in connection with the issuance and sale of the Shares,
including an Officer's Certificate of the Company, the form of
which is attached as Attachment A to this letter (the "Officer's
Certificate"); and
_ such other documents and certificates as we have deemed necessary
or appropriate as a basis for the opinions set forth below.
In addition, we have examined and relied upon originals or copies,
certified or otherwise identified to our satisfaction, of all such records of
the Company and such other instruments and certificates of public officials,
officers and representatives of the Company (including the Officer's
Certificate), and other persons, and we have made such investigations of facts
and law, as we have deemed necessary or appropriate as a basis for the opinions
expressed below, except that as to the factual matters relevant to our opinions
expressed below, we have, without independent investigation, relied upon the
documents listed above, upon certificates of the
B-2
officers of the Company and of public officials, and upon public records. In our
examination, we have assumed the legal capacity of all natural persons, the
genuineness of the signatures of persons signing all documents and instruments
in connection with which this opinion is rendered, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as copies and the authenticity of the originals of
all documents submitted to us as copies. In making our examination of documents,
we have assumed that the parties thereto (other than the Company) are validly
existing, had or will have the power (corporate or other) to enter into and
perform all obligations thereunder, and have duly authorized by all requisite
action (corporate or other) and executed and delivered such documents. In
addition, we have assumed the validity and binding effect of all documents on
the parties thereto, other than the Company.
References to (i) "Applicable Laws" shall mean those laws, rules or
regulations of the United States of America, the State of Colorado and the
Delaware General Corporation Law which, in our experience, are normally
applicable to transactions of the type contemplated by the Underwriting
Agreement; (ii) "Applicable Orders" shall mean any judicial or regulatory order
or decree of an Applicable Governmental Authority by which the Company is bound
and which have been specifically identified to us in the Officer's Certificate;
(iii) "Governmental Authority" shall mean any executive, legislative, judicial,
administrative, or regulatory body, agency, commission, board, bureau, or
instrumentality; (iv) "Applicable Governmental Authority" shall mean any
Colorado or federal Governmental Authority; (v) "Governmental Approval" shall
mean any consent, action, exemption of, approval, license, authorization, or
validation of, or filing, recording, or registration with any Governmental
Authority; (vi) "Applicable Governmental Approval" shall mean any Governmental
Approval of any Applicable Governmental Authority under Applicable Laws; and
(vii) "Applicable Contract" shall mean any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument filed as an exhibit to the
Registration Statement.
To the extent that any of the opinions or statements expressed below
with respect to the existence or absence of facts is indicated to be based on
our knowledge, you should understand that, except to the extent expressly set
forth in this letter, we have not undertaken any independent investigation
(other than inquiries of certain officers of the Company) to determine the
existence or absence of such facts and have relied solely on representations and
warranties of the Company contained in the Underwriting Agreement and in
certificates of officers of Company (including the Officer's Certificate) and
the other corporate records and instruments referred to above as to the
existence or absence of such facts. Moreover, references to our knowledge refer
only to the actual knowledge of the members of the firm and attorneys associated
therewith having primary responsibility for the representation of the Company.
Accordingly, you should not draw any inference that we know or should know of
the existence or absence of any additional facts.
Our opinions are subject to the following further qualifications:
(a) Our opinion set forth in paragraph 1 below with respect to the Company
being in good standing under the laws of the State of Delaware is based
solely on our review of a certificate from the Secretary of State of
Delaware, dated February __, 2005.
B-3
(b) Our opinions are limited to laws which, in our experience, are normally
applicable to general business corporations not engaged in regulated
business activities and to transactions of the type contemplated by the
Underwriting Agreement (and we have not made any special investigations of
any other laws), except that we express no opinion as to any law to which
the Company may be subject as a result of your legal or regulatory status.
(c) Our opinion that the Registration Statement has become effective under
the Securities Act is based on oral advice from the staff of the Commission
to that effect.
Based upon the foregoing and subject to the qualifications and limitations
set forth herein, we are of the opinion that:
1. The Company has been duly incorporated, and is an existing
corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own or lease its properties and conduct its
business as described in the Prospectus.
2. The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
3. The issuance and sale of the Shares have been duly authorized by
the Company and, when delivered to and paid for by the Underwriters in
accordance with the terms of the Underwriting Agreement, will be validly issued,
fully paid and non-assessable, and the issuance of such Shares will not be
subject to any preemptive rights of any stockholder of the Company arising under
Applicable Law or pursuant to the Organizational Documents or any Applicable
Contract.
4. The Company is not and, after giving effect to the offering and
sale of the Shares and the application of the proceeds thereof as described in
the Prospectus will not be, required to register as an "investment company" as
such term is defined in the Investment Company Act of 1940, as amended.
5. No Applicable Governmental Approval is required for the
consummation of the transactions contemplated by the Underwriting Agreement in
connection with the issuance and sale of the Shares by the Company, except for
the registration under the Securities Act and the Securities Exchange Act of
1934, as amended, of the Shares and such Applicable Governmental Approvals as
may be required to be obtained or made under state securities or "blue sky" laws
or by the rules and regulations of the NASD in connection with the purchase and
sale of the Shares by the Underwriters.
6. The issue and sale of the Shares by the Company and the execution,
delivery and performance by the Company of the Underwriting Agreement will not
result in a breach or default under any Applicable Contract, nor will such
action result in a violation of the Organizational Documents of the Company or
any Applicable Law or any Applicable Order. We do not express any opinion,
however, as to whether or not the execution, delivery and performance by the
Company of the Underwriting Agreement and the consummation of the
B-4
transactions contemplated thereunder will constitute a violation of or a default
under any covenant, restriction or provision with respect to financial ratios or
tests or any aspect of the financial condition or results of operations of the
Company.
7. The statements set forth in the Prospectus under the captions
"Description of Capital Stock," "Description of Indebtedness," and "Material
U.S. Federal Income and Estate Tax Consequences to Non-U.S. Holders," insofar as
such statements purport to describe or summarize certain provisions of the
agreements, statutes or regulations referred to therein, fairly describe or
summarize such provisions in all material respects.
8. The Registration Statement has been declared effective under the
Securities Act; any required filing of the Prospectus pursuant to Rule 424(b) of
the rules and regulations of the Commission under the Securities Act has been
made in accordance with Rule 424(b) and, to the best of our knowledge, no stop
order suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or are pending or
threatened by the Commission.
9. Each of the Registration Statement, as of its effective date, and
the Prospectus, as of its date, appeared, on its face, to be appropriately
responsive, in all material respects, to the requirements of the Securities Act
and the applicable rules and regulations of the Commission thereunder, except
that in each case we express no view as to the financial statements, schedules
and other financial or accounting information, including any pro forma financial
information, and statistical data contained in or omitted from the Registration
Statement or the Prospectus.
The foregoing opinions are limited to the specific issues addressed
and to laws existing on the date hereof. By rendering our opinion, we do not
undertake to advise you with respect to any other matter or of any change in
such laws or in the interpretation thereof which may occur after the date
hereof.
We are members of the Bar of the State of Colorado and we do not hold
ourselves out as being conversant with, and express no opinion as to, the laws
of any jurisdiction other than those of the United States of America, the State
of Colorado, and the Delaware General Corporation Law. To the extent that any of
our opinions set forth above are governed by the laws of any jurisdiction other
than the State of Colorado, the Delaware General Corporation Law and applicable
federal laws, we have assumed that the laws of all such jurisdictions which may
govern the Underwriting Agreement are identical in all respects to the laws of
the State of Colorado.
This letter is being furnished only to the addressees hereof and is
solely for their benefit in connection with the above-described transaction.
Neither this letter nor any statement contained herein may be relied upon, used,
circulated, quoted or otherwise referred to for any other purpose, or relied
upon by any other person, firm or corporation, without our prior written
consent, except that EquiServe Trust Company, N.A., as the transfer agent for
the Company, may rely upon paragraphs 3, 5 and 8.
Very truly yours,
BARTLIT XXXX XXXXXX XXXXXXXXX & XXXXX LLP
B-5
EXHIBIT C
[FORM OF BARTLIT XXXX NEGATIVE ASSURANCE]
________ __, 2005
Xxxxxx Xxxxxxx & Co. Incorporated
Citigroup Global Markets Inc.
UBS Securities LLC
Bear, Xxxxxxx & Co. Inc.
Xxxxxx Brothers Inc.
ABN AMRO Rothschild LLC
Natexis Bleichroeder Inc.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Alpha Natural Resources, Inc.
Ladies and Gentlemen:
We have acted as special counsel to Alpha Natural Resources, Inc., a
Delaware corporation (the "Company"), in connection with the sale by the Company
and the purchase by the several Underwriters (the "Underwriters") named in
Schedule I to the Underwriting Agreement, dated February __, 2005 (the
"Underwriting Agreement"), among the Company, Xxxxxx Xxxxxxx & Co. Incorporated,
Citigroup Global Markets Inc., UBS Securities LLC, Bear Xxxxxxx & Co. Inc.,
Xxxxxx Brothers Inc., ABN AMRO Rothschild LLC and Natexis Bleichroeder Inc., an
aggregate of 29,500,000 shares (the "Firm Shares") of the Company's common
stock, par value $0.01 per share (the "Common Stock"), plus an option granted by
the Company to the Underwriters to purchase up to an additional 4,425,000 shares
(the "Option Shares" and, together with the Firm Shares, the "Shares") of Common
Stock to cover over-allotments. Capitalized terms not otherwise defined in this
letter shall have the respective meanings ascribed to them by the Underwriting
Agreement.
This letter is delivered to you at the Company's request pursuant to
Section 5(c)(i) of the Underwriting Agreement.
In our capacity as special counsel to the Company, we participated in
conference calls and meetings with certain officers and other representatives of
the Company, representatives of KPMG LLP and representatives of and counsel for
the Underwriters concerning the preparation of (a) the Registration Statement on
Form S-1 (File No. 333-121002) relating to the Shares, filed by the Company with
the Securities and Exchange Commission (the "Commission") under the Securities
Act of 1933, as amended (the "Securities Act"), on December 6, 2004, as amended
by Amendment No. 1 thereto filed with the Commission on January 12, 2005,
Amendment No. 2
C-1
thereto filed with the Commission on February 2, 2005 and Amendment No. 3 filed
with the Commission on February __, 2005, including information deemed to be
part of the Registration Statement at the time of effectiveness pursuant to Rule
430A of the rules and regulations under the Securities Act (such Registration
Statement, as amended and declared effective by the Commission, being
hereinafter referred to as the "Registration Statement") and (b) the final
Prospectus, dated February __, 2005 relating to the Shares, filed with the
Commission pursuant to Rule 424(b) of the rules and regulations under the
Securities Act (the "Prospectus").
Although we have made certain inquiries and investigations in connection
with the preparation of the Registration Statement and the Prospectus, the
limitations inherent in the role of outside counsel are such that we cannot and
do not assume responsibility for the accuracy or completeness or fairness of the
statements made in Registration Statement and the Prospectus, and we make no
representation that we have independently checked or verified the accuracy,
completeness, or fairness of such statements, except insofar as such statements
relate to us and except to the extent set forth in opinion paragraph 7 of our
letter to you dated the date of this letter. Subject to the foregoing, and
relying upon the officers and other representatives of the Company as to
materiality, we hereby advise you that our work in connection with this matter
did not disclose any facts that led any of the lawyers in our firm who were
actively involved in the preparation of the Registration Statement or the
Prospectus to believe that:
(A) the Registration Statement, at the time it became effective,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; or
(B) the Prospectus, as of its date or as of the date hereof, contained
or contains an untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
except that, in each case, we express no view or belief as to the financial
statements, schedules or other financial or accounting information, including
any pro forma financial information, or statistical data contained in or omitted
from the Registration Statement or the Prospectus.
This letter is being furnished only to the addressees hereof and is solely
for their benefit in connection with the above transaction. Neither this letter
nor any statement contained herein may be used, circulated, quoted, relied upon
or otherwise referred to by any other person or for any other purpose without
our prior written consent.
Very truly yours,
BARTLIT XXXX XXXXXX XXXXXXXXX & XXXXX LLP
C-2
EXHIBIT D
[FORM OF XXXXXXX XXXXXXX & XXXXXXXX OPINION]
February __, 2005
Xxxxxx Xxxxxxx & Co. Incorporated
Citigroup Global Markets Inc.
and the other several
Underwriters named in Schedule I to
the Underwriting Agreement
referred to below
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
We have acted as special counsel to Alpha Natural Resources, Inc., a
Delaware corporation (the "Company"), in connection with the purchase by you of
an aggregate of ________ shares (the "Shares") of Common Stock, par value $0.01
per share (the "Common Stock"), of the Company from the Company pursuant to the
Underwriting Agreement dated February __, 2005 between you and the Company (the
"Underwriting Agreement").
We have examined the Registration Statement on Form S-1 (File No.
333-121002) filed by the Company under the Securities Act of 1933, as amended
(the "Securities Act"), as it became effective under the Securities Act; the
Company's prospectus, dated February __, 2005, filed by the Company pursuant to
Rule 424(b) of the rules and regulations of the Securities and Exchange
Commission under the Securities Act; and the Underwriting Agreement. In
addition, we have examined, and have relied as to matters of fact upon, the
documents delivered to you at the closing and upon originals, or duplicates or
certified or conformed copies, of such corporate records, agreements, documents
and other instruments and such certificates or comparable documents of public
officials and of officers and representatives of the Company and have made
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such other investigations, as we have deemed relevant and necessary in
connection with the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all signatures, the
legal capacity of natural persons, the authenticity of all documents submitted
to us as originals, the conformity to original documents of all documents
submitted to us as duplicates or certified or conformed copies and the
authenticity of the originals of such latter documents.
Based upon the foregoing, and subject to the qualifications, assumptions
and limitations stated herein, we are of the opinion that:
1. The issue and sale of the Shares by the Company and the execution,
delivery and performance by the Company of the Underwriting Agreement will not
breach or result in a default under any New York State statute or any rule or
regulation that has been issued pursuant to any New York State statute or any
order known to us issued pursuant to any New York State statute by any court or
governmental agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties.
2. No consent, approval, authorization, order, registration or
qualification of or with any New York State governmental agency or body or, to
our knowledge, any New York State court is required for the issue and sale of
the Shares by the Company and the compliance by the Company with all of the
provisions of the Underwriting Agreement, except for such consents, approvals,
authorizations, registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and distribution of
the Shares by the Underwriters.
We do not express any opinion herein concerning any law other than the law
of the State of New York.
This opinion letter is rendered to you in connection with the
above-described transaction. This opinion letter may not be relied upon by you
for any other purpose, or relied upon by, or furnished to, any other person,
firm or corporation without our prior written consent.
Very truly yours,
XXXXXXX XXXXXXX & XXXXXXXX XXX
X-0
EXHIBIT E
[FORM OF GENERAL COUNSEL OPINION]
February __, 2005
Xxxxxx Xxxxxxx & Co. Incorporated
Citigroup Global Markets Inc.
UBS Securities LLC
Bear, Xxxxxxx & Co. Inc.
Xxxxxx Brothers Inc.
ABN AMRO Rothschild LLC
Natexis Bleichroeder Inc.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Alpha Natural Resources, Inc.
Ladies and Gentlemen:
I am Vice President and General Counsel of Alpha Natural Resources, Inc., a
Delaware corporation (the "Company"), and have acted as in-house counsel for the
Company in connection with the sale by the Company and the purchase by the
several Underwriters (the "Underwriters") named in Schedule I to the
Underwriting Agreement, dated February __, 2005 (the "Underwriting Agreement"),
among the Company, Xxxxxx Xxxxxxx & Co. Incorporated, Citigroup Global Markets
Inc., UBS Securities LLC, Bear Xxxxxxx & Co. Inc., Xxxxxx Brothers Inc., ABN
AMRO Rothschild LLC and Natexis Bleichroeder Inc. an aggregate of 29,500,000
shares (the "Firm Shares") of the Company's common stock, par value $0.01 per
share (the "Common Stock"), plus an option granted by the Company to the
Underwriters to purchase up to an additional 4,425,000 shares (the "Option
Shares" and, together with the Firm Shares, the "Shares") of Common Stock to
cover over-allotments. Capitalized terms not otherwise defined in this letter
shall have the respective meanings ascribed to them by the Underwriting
Agreement.
This opinion is delivered to you pursuant to Section 5(c)(i) of the
Underwriting Agreement. Concurrent with the delivery of this opinion, (i)
Bartlit Xxxx Xxxxxx Xxxxxxxxx & Xxxxx LLP, special counsel to the Company, and
(ii) Xxxxxxx Xxxxxxx & Bartlet, LLP, special New York counsel to the Company,
are delivering to you separate opinions to which I refer you for further
information regarding legal matters arising under the Underwriting Agreement.
In arriving at the opinions expressed below, I or attorneys under my
supervision (with whom I have consulted) have examined and relied on, among
other things, the following:
- an executed copy of the Underwriting Agreement;
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- the Registration Statement on Form S-1 (File No. 333-121002) relating
to the Shares, filed by the Company with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Securities Act"), on December 6, 2004, as amended by
Amendment No. 1 thereto filed with the Commission on January 12, 2005,
Amendment No. 2 thereto filed with the Commission on February 2, 2005
and Amendment No. 3 thereto filed with the Commission on February __,
2005, including information deemed to be part of the Registration
Statement at the time of effectiveness pursuant to Rule 430A of the
rules and regulations under the Securities Act (such Registration
Statement, as amended and declared effective by the Commission, being
hereinafter referred to as the "Registration Statement");
- the final Prospectus, dated February __, 2005 relating to the Shares,
filed with the Commission pursuant to Rule 424(b) of the rules and
regulations under the Securities Act (the "Prospectus");
- copies of each of (i) the respective certificates of incorporation or
certificates of formation, as applicable, of the subsidiaries of the
Company identified on Schedule I to this letter as the "Delaware
Subsidiaries," each as amended to the date of this letter, and (ii)
the respective bylaws, limited liability company agreements or
partnership agreements, as applicable, of the Delaware Subsidiaries,
each as amended to the date of this letter (together, the
"Organizational Documents"); and
- such other documents and certificates as I or the attorneys,
paralegals and other professionals under my supervision (with whom I
have consulted) have deemed necessary or appropriate as a basis for
the opinions set forth below.
In addition, I or attorneys under my supervision (with whom I have
consulted) have examined and relied upon the originals or copies, certified or
otherwise identified to our satisfaction, of all such records of the Company's
subsidiaries, and such other instruments and certificates of public officials,
officers and representatives of the Company's subsidiaries, and other persons,
and we have made such investigations of facts and law, as we have deemed
appropriate as a basis for the opinions expressed below, except that as to the
factual matters relevant to the opinions expressed below, we have, without
independent investigation, relied upon the documents listed in the preceding
paragraph, upon oral or written statements of the officers of the Company's
subsidiaries, certificates of public officials, and upon public records. In the
examination conducted by me and attorneys under my supervision (with whom I have
consulted), we have assumed the legal capacity of all natural persons, the
genuineness of the signatures of persons (other than persons signing on behalf
of the Company's subsidiaries) signing all documents and instruments in
connection with which this opinion is rendered, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as copies and the authenticity of the originals of
all documents submitted to us as copies.
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My opinion set forth in paragraph 2 below with respect to the ownership of
the equity interests of the Company's subsidiaries is based solely upon my
review of the stock and other equity ledgers and minute books of the Company's
subsidiaries.
Based on the foregoing and subject to the qualifications and limitations
set forth herein, I am of the opinion that:
1. Each of the Delaware Subsidiaries has been duly formed or incorporated,
as applicable, and is an existing limited liability company, corporation or
limited partnership, as applicable, with corporate or other power and authority,
as applicable, to own or lease, as the case may be, its properties and conduct
its business as described in the Prospectus.
2. Except as disclosed in the Prospectus, the Subsidiary Equity Interests
are owned by the Company, directly or through subsidiaries. The Subsidiary
Equity Interests issued by the Delaware Subsidiaries have been duly authorized
and, to the extent certificated, have been validly issued and are fully paid and
non-assessable.
3. To my knowledge, there are no pending or threatened actions, suits or
proceedings by or before any court or governmental agency, authority or body or
any arbitrator under Applicable Law to which the Company or any of its
subsidiaries is a party that would be required to be described in the
Registration Statement or the Prospectus and are not so described.
4. None of the execution and delivery of the Underwriting Agreement or the
offering and sale of the Shares will, as of the date of this letter and after
giving effect to the offering and sale of the Shares and the application of the
proceeds thereof as described in the Prospectus, conflict with, result in a
breach or violation of or imposition of any lien, charge or encumbrance upon any
property or assets of the subsidiaries of the Company pursuant to (i) the
Organizational Documents of the Company's subsidiaries, (ii) any Applicable
Contract, or (iii) any Applicable Law, other than in the case of clauses (ii)
and (iii), such breaches, violations, liens, charges or encumbrances that would
not reasonably be expected to have a Material Adverse Effect, and provided that
I express no opinion, in the case of clause (ii), with respect to financial
ratios or tests or any aspect of the financial condition or results of
operations of the Company and its subsidiaries to the extent the determination
of such breach or violation requires quantitative determination.
As used in this letter, (i) "Applicable Laws" means those laws, rules or
regulations of the United States of America and the Commonwealth of Virginia,
which, in my experience, are normally applicable to transactions of the type
contemplated by the Underwriting Agreement, but excluding any securities laws of
any jurisdiction and the rules and regulations of the National Association of
Securities Dealers, Inc. and (ii) "Applicable Contracts" means any agreement or
instrument to which the Company or any of its subsidiaries is a party which are
filed as an exhibit to the Registration Statement.
I have not independently verified or checked the accuracy, completeness or
fairness of the statements made or included in the Registration Statement, and I
take no responsibility therefore.
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In connection with, and under the circumstances applicable to the offering
and sale of the Shares, I or attorneys under my supervision (with whom I have
consulted), have participated in conference calls and meetings with certain
officers and other representatives of the Company, representatives of KPMG LLP
and representatives of and counsel for the Underwriters in the course of the
preparation by the Company of the Registration Statement and the Prospectus. I
or attorneys under my supervision (with whom I have consulted), also have
reviewed certain records and documents of the Company and its subsidiaries
furnished to me, as well as the documents delivered to you at the Closing. Based
upon our review of the Registration Statement and the Prospectus, our
participation in the conference calls and meetings referred to above and our
review of the documents and records as described above, no facts have come to my
attention that causes me to believe that:
(A) the Registration Statement, at the time it became effective,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; or
(B) the Prospectus, as of its date and as of the date of this letter,
contained or contains an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
except that, in each case, I express no view or belief as to the financial
statements, schedules and other financial or accounting information, including
any pro forma financial information, and statistical data included therein or
excluded therefrom.
The foregoing opinions are limited to the specific issues addressed and to
laws existing on the date hereof. By rendering my opinion, I do not undertake to
advise you with respect to any other matter or of any change in such laws or in
the interpretations thereof which may occur after the date hereof.
I am qualified to practice law in the Commonwealth of Virginia and do not
purport to express any opinion herein concerning any law other than the laws of
said jurisdiction and the United States of America. To the extent that any of my
opinions set forth above are governed by the laws of any jurisdiction other than
the Commonwealth of Virginia and applicable federal laws, I have assumed the
laws of all such jurisdictions which may govern the Underwriting Agreement are
identical in all respects to the laws of the Commonwealth of Virginia.
This letter is being furnished only to the addressees hereof and is solely
for their benefit in connection with the above transaction. Neither this letter
nor any statement contained herein may be relied upon, used, circulated, quoted
or otherwise referred to for any other purpose, or relied upon by any other
person, firm or corporation, without my prior written consent.
Very truly yours,
----------------------------------------
Xxxxxx X. Xxxxxx
Vice President and General Counsel
E-4
LIST OF DELAWARE SUBSIDIARIES
Name of Entity Entity Form Jurisdiction of Organization
------------------------------------- ------------------------- ----------------------------
Alpha Coal Sales Co., LLC Limited liability company Delaware
Alpha Land and Reserves, LLC Limited liability company Delaware
Alpha Natural Resources, LLC Limited liability company Delaware
Alpha Natural Resources Capital Corp. Corporation Delaware
Alpha Natural Resources Services, LLC Limited liability company Delaware
Alpha NR Holding, Inc. Corporation Delaware
Alpha NR Ventures, Inc. Corporation Delaware
Alpha Terminal Company, LLC Limited liability company Delaware
AMFIRE, LLC Limited liability company Delaware
AMFIRE Holdings, Inc. Corporation Delaware
AMFIRE Mining Company, LLC Limited liability company Delaware
AMFIRE WV, L.P. Limited partnership Delaware
ANR Holdings, LLC Limited liability company Delaware
Xxxxxxxxx-Xxxxxxx Coal Company, LLC Limited liability company Delaware
Xxxxxxxxx Coal Co., LLC Limited liability company Delaware
E-5
Kingwood Mining Company, LLC Limited liability company Delaware
Maxxim Rebuild Co., LLC Limited liability company Delaware
Maxxim Shared Services, LLC Limited liability company Delaware
Maxxum Carbon Resources, LLC Limited liability company Delaware
XxXxxxxx-Wyoming Coal Company, LLC Limited liability company Delaware
Paramont Coal Company Virginia, LLC Limited liability company Delaware
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