EXHIBIT 2.2
FIRST AMENDMENT TO
BUSINESS COMBINATION AGREEMENT
This First Amendment to the Business Combination Agreement (this
"AMENDMENT") is entered into as of May 10 2005, by and among ICG, Inc. (f/k/a
International Coal Group, Inc.) ("PARENT"), International Coal Group, Inc.
(f/k/a ICG Holdco, Inc.) ("HOLDCO"), ICG Merger Sub, Inc. ("PARENT MERGER SUB"),
Anker Merger Sub, Inc. ("ANKER MERGER SUB") and Anker Coal Group, Inc. (the
"COMPANY").
RECITALS:
A. Parent, Holdco, Parent Merger Sub, Anker Merger Sub and the Company are
parties to the Business Combination Agreement, dated as of March 31, 2005 (the
"BUSINESS COMBINATION AGREEMENT"); and
B. Parent, Holdco, Parent Merger Sub, Anker Merger Sub and the Company
desire to amend the Business Combination Agreement as set forth herein.
NOW, THEREFORE, the parties agree as follows:
1. Definitions. Capitalized terms not defined in this Amendment have the
meanings given such terms in the Business Combination Agreement.
2. Amendments.
2.1 The third recital of the Business Combination Agreement is hereby
amended and restated in its entirety to read as follows:
3. Substantially simultaneously herewith, Parent is entering into
the Business Combination Agreement among Parent, Holdco,
CoalQuest Merger Sub, LLC, CoalQuest Development LLC
("COALQUEST") and its members dated as of March 31, 2005, as
such agreement may be amended by the parties thereto (the
"COALQUEST AGREEMENT"), pursuant to which the members of
CoalQuest (or the equity owners of such members) will,
directly or indirectly, contribute their interests in
CoalQuest to Holdco in exchange for shares of Holdco common
stock (the "COALQUEST ACQUISITION").
2.2 Section 1.03(a) of the Business Combination Agreement is hereby
amended and restated in its entirety to read as follows:
(a) Except as otherwise provided in Section 1.03(c), each share of
Parent Common Stock outstanding immediately prior to the
Effective Time will be converted, without any action on the
part of the
holder thereof, into the right to receive a number of shares
(or a fraction of a share) of Holdco Common Stock equal to the
Parent Exchange Amount (the "PARENT MERGER CONSIDERATION" and,
together with the Company Merger Consideration, the "MERGER
CONSIDERATION").
2.3 Section 2.03(a) of the Business Combination Agreement is hereby
amended and restated in its entirety to read as follows:
(a) Holdco Certificate of Incorporation. Prior to the Effective
Time, Parent will cause the certificate of incorporation of
Holdco to be amended and restated in the form attached hereto
as Exhibit B by filing the same with the Delaware Secretary of
State.
2.4 The Business Combination Agreement is hereby amended to include the
following new Section 6.12:
6.12 Assignment and Assumption. At the Closing, Holdco and Parent
will execute an assignment and assumption agreement in
substantially the form attached hereto as Exhibit C.
2.5 Section 10.01(a) of the Business Combination Agreement is hereby
amended by deleting the definitions of "Adjusted Merger Share Number," "Base
Merger Share Number" and "IPO Deadline" contained therein and by substituting in
lieu thereof the following definitions:
"ADJUSTED MERGER SHARE NUMBER" means the lesser of (i) (x)
18,373,122 shares of Holdco Common Stock multiplied by (y) the
Parent Exchange Amount (such product, the "ADJUSTED MAXIMUM MERGER
SHARE NUMBER") and (ii) if the IPO Completion has occurred, the
number of shares of Holdco Common Stock equal to $163,250,000
divided by the price per share at which the Holdco Common Stock is
offered to the public in the IPO.
"BASE MERGER SHARE NUMBER" means the lesser of (i) (x) 19,498,581
shares of Holdco Common Stock multiplied by (y) the Parent Exchange
Amount (such product, the "BASE MAXIMUM MERGER SHARE NUMBER") and
(ii) if the IPO Completion has occurred, the number of shares of
Holdco Common Stock equal to $173,250,000 divided by the price per
share at which the Holdco Common Stock is offered to the public in
the IPO.
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"IPO DEADLINE" means the earliest to occur of (i) Xxxxx 00,
0000, (xx) the date on which the Board of Directors of Parent
or Holdco determines to abandon the IPO, and (iii) the IPO
Completion. For purposes hereof, "ABANDON" means an express
determination by the Board of Directors of Parent or Holdco
not to proceed with the IPO prior to March 31, 2006 and will
not include a determination by the Board of Directors of
Parent or Holdco to temporarily withdraw the Holdco Form S-1,
for example, as a result of market conditions at the time.
2.6 Section 10.01(a) of the Business Combination Agreement is
hereby amended to include the following additional definition:
"PARENT EXCHANGE AMOUNT" means a number or fraction equal to
the number of shares of Holdco Common Stock that each share of
Parent Common Stock is to be converted into as of the
Effective Time as determined by the Board of Directors (or an
authorized committee thereof) of each of Holdco and Parent,
and which will be specified in a certificate signed by the
Chairman of the Board, the Chief Executive Officer or the
Chief Financial Officer of Parent and delivered to the Company
and CoalQuest; provided that if no such certificate is
delivered prior to the Effective Time, the Parent Exchange
Amount will be one.
2.7 Schedule 3.03 of the Business Combination Agreement is amended
by adding the following after "3. All filings and registrations necessary under
the Company's permits to reflect the change in ownership":
to the extent required to be made prior to the Closing, with
all such filings and registrations required to be made
following the Closing being made following the Closing.
2.8 Schedule 4.03 of the Business Combination Agreement is amended
by adding the following after "All filings and registrations necessary under
Parent's permits to reflect the change in ownership":
to the extent required to be made prior to the Closing, with
all such filings and registrations required to be made
following the Closing being made following the Closing.
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3. Exhibit B. Exhibit B to the Business Combination Agreement is hereby
amended and restated in its entirety to be in the form attached hereto as Annex
1.
4. Exhibit C. The Business Combination Agreement is hereby amended to
include a form of Exhibit C attached hereto as Annex 2.
5. Incorporation. Section 10.02 and Article XI of the Business
Combination Agreement are hereby incorporated mutatis mutandi into this
Amendment.
6. Effect on Business Combination Agreement. Except as specifically
amended by this Amendment, the Business Combination Agreement will remain in
full force and effect and is hereby ratified and confirmed.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, Parent, Holdco, Parent Merger Sub, Anker Merger Sub
and the Company have caused this Amendment to be executed by their respective
officers thereunto duly authorized as of the date first written above.
ICG, INC.
By:/s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title:
ANKER COAL GROUP, INC.
By:/s/ Xxxxxxx X. XxXxxxxxx
-----------------------------------
Name: Xxxxxxx X. XxXxxxxxx
Title: President & CFO
INTERNATIONAL COAL GROUP, INC.
By:/s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title:
ICG MERGER SUB, INC.
By:/s/ Xxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxx
Title:
ANKER MERGER SUB, INC.
By:/s/ Xxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxx
Title:
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ANNEX 1
HOLDCO CERTIFICATE OF INCORPORATION
ANNEX 2
ASSIGNMENT AND ASSUMPTION AGREEMENT
