Exhibit 2.2
ASSIGNMENT OF RIGHTS UNDER
CERTAIN AGREEMENTS
This Assignment of Rights Under Certain Agreements (the "Assignment") is
executed by Alpha Natural Resources, LLC, a Delaware limited liability company
(the "Company"), and the direct and indirect subsidiaries of the Company listed
on the signature pages of this Assignment (the "Subsidiaries") as of October 26,
2005. All capitalized terms used herein, unless otherwise indicated, shall have
the meanings assigned to such terms in that certain Acquisition Agreement, dated
as of September 23, 2005, as heretofore amended and supplemented, among the
Company, Mate Creek Energy of W. Va., Inc., Virginia Energy Company, the
unitholders of Powers Shop, LLC, and the shareholders of Xxxxxxxxxx Contracting,
Inc., Twin Star Mining, Inc. and White Flame Energy, Inc. (the "Acquisition
Agreement").
In consideration of the mutual covenants and promises set forth in
this Assignment, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Assignment. This Assignment is executed and delivered in accordance
with (i) Section 13.5 of the Acquisition Agreement and (ii) Section 6.5 of that
certain Indemnification Agreement, dated as of September 23, 2005, as amended,
among the parties to the Acquisition Agreement and certain other parties (the
"Indemnification Agreement" and together with the Acquisition Agreement, the
"Agreements"). The Company hereby irrevocably assigns, transfers and conveys to
each Subsidiary, effective as of the date of this Assignment, free and clear of
any Encumbrance, all of the Company's rights and obligations under the
Agreements with respect to the acquisition of the Acquired Interests specified
on Exhibit A to this Assignment (the "Assigned Rights" and "Assumed
Obligations"), and each Subsidiary shall be treated as and assume the place of
the Company under the Agreements with respect thereto. The Company and the
Subsidiaries each agree to execute and deliver such further instruments and do
such further acts as may be required to effect such transfer of the Assigned
Rights and Assumed Obligations to the Subsidiaries.
2. Acceptance. Each Subsidiary accepts the assignment, transfer and
conveyance by the Company of its respective Assigned Rights and Assumed
Obligations, free and clear of any Encumbrance, and assumes and agrees to
perform and discharge such Assumed Obligations.
3. Representations and Warranties of the Company.
(a) Existence and Qualification. The Company is a limited liability
company duly organized, validly existing and in good standing under the laws of
the State of Delaware, and the Company has all requisite power and authority to
own, operate and lease its properties and to carry on its business as presently
conducted.
(b) Authority and Enforceability. The Company has all requisite
power and authority to execute and deliver this Assignment and to perform its
obligations under this Assignment. The execution and delivery of this Assignment
by the Company and the performance of the transactions contemplated hereby by
the Company have been duly and
validly approved by the board of managers of the Company and by any other action
necessary on behalf of the Company. This Assignment has been duly executed and
delivered on behalf of the Company and constitutes the legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms. At the Closing, all documents required hereunder to be executed and
delivered by the Company will have been duly authorized, executed and delivered
and will constitute legal, valid and binding obligations of the Company,
enforceable against the Company in accordance with their respective terms.
(c) No Default or Consents. The execution, delivery and performance
of this Assignment and the consummation of the transactions contemplated herein
will not:
(1) conflict with or result in a breach, default or violation of the
organizational documents of the Company;
(2) conflict with or result in a breach, default or violation (with
due notice or lapse of time or both) of any material agreement to which
the Company is a party; or
(3) require the Company to obtain or make any waiver, consent,
action, approval, clearance or authorization of, or registration,
declaration or filing with, any Governmental Authority or other Person,
which has not been obtained, made or waived.
(d) Agreements. The Company represents and warrants that the copies
of the Agreements that it has furnished to the Subsidiaries are true and
complete copies thereof.
4. Representations and Warranties of the Subsidiaries. Each Subsidiary
represents and warrants to the Company that:
(a) Existence and Qualification. It is duly organized, validly
existing and in good standing under the laws of the state of its formation, and
it has all requisite power and authority to own, operate and lease its
properties and to carry on its business as presently conducted.
(b) Authority and Enforceability. It has all requisite power and
authority to execute and deliver this Assignment and to perform its obligations
under this Assignment. The execution and delivery of this Assignment by it and
the performance of the transactions contemplated hereby by it have been duly and
validly approved by the board of directors, board of managers or other
applicable authority of such entity and by any other action necessary on behalf
of such entity. This Assignment has been duly executed and delivered on its
behalf and constitutes its legal, valid and binding obligation, enforceable
against it in accordance with its terms. At the Closing, all documents required
hereunder to be executed and delivered by it will have been duly authorized,
executed and delivered and will constitute its legal, valid and binding
obligations, enforceable against it in accordance with their respective terms.
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(c) No Default or Consents. The execution, delivery and performance
of this Assignment (and the documents required to be executed and delivered by
the Company under the Agreements) and the consummation of the transactions
contemplated herein or in the Agreements will not:
(1) conflict with or result in a breach, default or violation of its
organizational documents;
(2) conflict with or result in a breach, default or violation (with
due notice or lapse of time or both) of any material agreement to which it
is a party; or
(3) require it to obtain or make any waiver, consent, action,
approval, clearance or authorization of, or registration, declaration or
filing with, any Governmental Authority or other Person, which has not
been obtained, made or waived.
(d) Financial Capacity. It has resources sufficient to satisfy all
of its respective Assumed Obligations.
5. Investment Representations. Each of Premium Energy, LLC and Callaway
Natural Resources, Inc. further represents and warrants to the Company that:
(a) Investment. It will acquire the equity interests of the Acquired
Companies set forth on Exhibit A (the "Equity Interests") pursuant to the
Acquisition Agreement for investment for its own account, not as a nominee or
agent, and not with a view to, or for resale in connection with, any
distribution thereof. It understands that the transfer of the Equity Interests
has not been, nor will be, registered under the Securities Act by reason of a
specific exemption from the registration provisions of the Securities Act, the
availability of which depends upon, among other things, the bona fide nature of
its investment intent and the accuracy of its representations as expressed in
this Assignment. By reason of the business or financial experience of its
officers, it has the capacity to evaluate the merits and risks of its
prospective investment in the Equity Interests. It acknowledges that it can bear
the economic risk of its prospective investment in the Equity Interests. Its
address set forth at the conclusion of this Assignment is its true and correct
state of domicile, upon which the Seller may rely for the purpose of complying
with applicable "Blue Sky" laws.
(b) Rule 144. It understands that an exemption from registration is
not presently available pursuant to Rule 144 promulgated under the Securities
Act by the Securities and Exchange Commission (the "Commission") and that in any
event it may not sell any securities pursuant to Rule 144 prior to the
expiration of a one-year period after it has acquired such securities. It
understands that any sales pursuant to Rule 144 can be made only in full
compliance with the provisions of Rule 144.
(c) No Public Market. It understands that no public market now
exists for any of the securities of the Acquired Companies and the Acquired
Companies have not made any assurances that a public market will ever exist for
such securities.
(d) Restrictions on Transfer; Restrictive Legends. It understands
that the
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transfer of the Equity Interests is restricted by applicable state and Federal
securities laws, and that the certificates representing the Equity Interests
will be imprinted with legends restricting transfer except in compliance
therewith.
(e) Access to Data. It has had an opportunity to discuss the
Acquired Companies' business, management and financial affairs with the
management of the Acquired Companies. It has also had an opportunity to ask
questions of officers of the Acquired Companies.
6. Miscellaneous.
(a) Consideration. The Company and the Subsidiaries each agree that
the Subsidiaries are acquiring the Assigned Rights for good and valuable
consideration, including the Subsidiaries' agreement to perform and discharge
all of the Assumed Obligations and the guarantee by the Subsidiaries of the
obligations of the Company pursuant to a $525,000,000 Credit Agreement by and
among the Company, Alpha NR Holding, Inc., the Lenders and Issuing Banks party
thereto, Citicorp North America, Inc., Citigroup Global Markets Inc. and UBS
Securities LLC.
(b) Indemnification. Each of the Subsidiaries agrees to indemnify,
defend and hold harmless the Company from and against any loss, liability,
claim, damage or expense resulting from or arising out of any breach by such
Subsidiary of any of its obligations under this Assignment.
(b) Attorney-In-Fact. The Company hereby irrevocably constitutes and
appoints each Subsidiary as the Company's attorney-in-fact, in the Company's
name, to demand, receive, and enforce all of its respective Assigned Rights, to
give appropriate receipts, releases and satisfactions therefor, and to do any
and all other acts with respect to the Assigned Rights and Assumed Obligations,
in each case with the same force and effect as if the Company had accomplished
such act itself.
(c) Governing Law. This Assignment shall be governed by and
construed in accordance with the laws of the State of Delaware.
(d) Binding Effect and Assignment. This Assignment shall be binding
upon and inure to the benefit of the parties and their respective successors and
permitted assigns.
(e) Counterparts. This Assignment may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
* * * * *
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IN WITNESS WHEREOF, this instrument is executed as of the day and year
first above written.
ALPHA NATURAL RESOURCES, LLC
By: /s/ Xxxxx X. Xxxxxxxxxxx
Name: Xxxxx X. Xxxxxxxxxxx
Title: Executive Vice President
Address: 000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
MATE CREEK ENERGY, LLC
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Address: 000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
CALLAWAY NATURAL RESOURCES, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Address: 000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
PREMIUM ENERGY, LLC
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Address: 000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
VIRGINIA ENERGY COMPANY, LLC
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Address: 000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
[Signature Page to Assignment of Rights Under Certain Agreements]
EXHIBIT A
SUBSIDIARY ACQUIRED INTERESTS
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Mate Creek Energy, LLC Assets of Mate Creek Energy of W. Va., Inc.
Callaway Natural Resources, Inc. Stock of Xxxxxxxxxx Contracting, Inc.;
Stock of White Flame Energy, Inc.; and
Stock of Twin Star Mining, Inc.
Premium Energy, LLC Units of Powers Shop, LLC
Virginia Energy Company, LLC Assets of Virginia Energy Company
