SUPPLEMENTAL INDENTURE NO. 2
Exhibit 4.4
SUPPLEMENTAL INDENTURE NO. 2
SUPPLEMENTAL INDENTURE NO. 2, dated as of July 31, 2009 (this “Supplemental
Indenture”), by and among the Company (as defined below) and UNION BANK, N.A. (formerly known
as UNION BANK OF CALIFORNIA, N.A.), as trustee (the “Trustee”), under the Indenture dated
as of April 7, 2008 (the “Base Indenture”), as supplemented by Supplemental Indenture No.
1, dated as of April 7, 2008 (“Supplemental Indenture No. 1”), between ALPHA NATURAL
RESOURCES, INC., a Delaware corporation (“Alpha”), and the Trustee.
WITNESSETH
WHEREAS, Alpha has heretofore executed and delivered to the Trustee the Base Indenture and
Supplemental Indenture No. 1 providing for the issuance of 2.375% Convertible Senior Notes due
April 15, 2015 (the “Securities”);
WHEREAS, Alpha and FOUNDATION COAL HOLDINGS, INC., a Delaware corporation
(“Foundation”), entered into an Agreement and Plan of Merger dated as of May 11, 2009 (the
“Merger Agreement”), providing for the merger of Alpha with and into Foundation (the
“Merger”), with Foundation as the surviving corporation (such surviving corporation,
renamed Alpha Natural Resources, Inc., the “Company”);
WHEREAS, the Merger complies with the provisions of Section 10.01 of the Base Indenture and
Section 11.11 of Supplemental Indenture No. 1;
WHEREAS, the Company proposes in and by this Supplemental Indenture to supplement and amend
the Base Indenture and Supplemental Indenture No. 1 in certain respects as it applies to the
Securities issued thereunder;
WHEREAS, Section 9.01 of the Base Indenture and Section 10.01 of Supplemental Indenture No. 1
permit the Company and the Trustee to amend the Base Indenture and Supplemental Indenture No. 1,
respectively, without prior notice to or consent of any Holder of the Securities for the purpose of
evidencing the assumption by a successor of Alpha of the covenants and obligations of Alpha
thereunder and in the Securities; and
WHEREAS, the Company has requested that the Trustee execute and deliver this Supplemental
Indenture and the execution and delivery of this Supplemental Indenture has been duly authorized in
all respects.
NOW THEREFORE, the Company and the Trustee hereby agree that the following Sections of this
Supplemental Indenture supplement the Base Indenture and Supplemental Indenture No. 1 with respect
to the Securities issued thereunder:
ARTICLE I
DEFINITIONS
DEFINITIONS
Section 1.1. CAPITALIZED TERMS. Capitalized terms used herein without definition shall have
the meanings assigned to them in the Base Indenture or Supplemental Indenture No. 1, as the context
requires.
ARTICLE II
ASSUMPTION AND CONVERSION RIGHTS
ASSUMPTION AND CONVERSION RIGHTS
Section 2.1. ASSUMPTION OF OBLIGATIONS. The Company, as the surviving entity in the Merger,
expressly assumes the due and punctual payment of the principal of, and premium, if any, and
interest, if any, on all the Securities and the performance or observance of every covenant of the
Securities, the Base Indenture and Supplemental Indenture No. 1 on the part of Alpha to be
performed or observed.
Section 2.2. CONVERSION RIGHTS. The Company, as the surviving entity in the Merger, agrees
that at and after the effective time of the Merger, the Holder of each Security then outstanding
shall have the right to convert such Security (if otherwise convertible pursuant to Article XI of
Supplement No. 1) into the kind and amount of Reference Property receivable upon the Merger by a
holder of a number of shares of Alpha common stock equal to a fraction whose denominator is one
thousand (1,000) and whose numerator is the product of the principal amount of such Security and
the Conversion Rate in effect immediately prior to the Merger; provided, however,
that at and after the effective time of the Merger, upon the conversion of a Security (w) the
portion of each Daily Settlement Amount payable in cash shall continue to be payable in cash, (x)
the portion (if any) of each Daily Settlement Amount payable in shares of Alpha common stock shall
be payable in Reference Property, (y) the Daily Conversion Value shall be calculated based on the
value of a unit of Reference Property corresponding to the amount of Reference Property that a
holder of one share of Alpha common stock would have received in the Merger and (z) the
Volume-Weighted Average Price per share of Alpha common stock and the Closing Sale Price shall be
calculated with respect to a unit of Reference Property corresponding to the amount of Reference
Property that a holder of one share of Alpha common stock would have received in the Merger.
Section 2.3. ADJUSTMENTS TO CONVERSION RATES. The Company further agrees that at and after
the effective time of the Merger, the Conversion Rate shall be subject to adjustments in accordance
with Article 11 of Supplemental Indenture No. 1.
ARTICLE III
MISCELLANEOUS
MISCELLANEOUS
Section 3.1. NO RECOURSE AGAINST OTHERS. No past, present or future director, manager,
officer, employee, incorporator, stockholder or member of the Company, any parent entity of the
Company or any Subsidiary of the Company, as such, will have any liability for any obligations of
the Company under the Securities, this Supplemental Indenture or for any claim based on, in respect
of, or by reason of, such obligations or their creation. Each Holder of Securities by accepting a
Security waives and releases all such liability. The waiver and release
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are part of the consideration for issuance of the Securities. The waiver may not be effective
to waive liabilities under the federal securities laws.
Section 3.2. BENEFIT OF SUPPLEMENTAL INDENTURE. Nothing in this Supplemental Indenture,
express or implied, shall give to any person, other than the parties hereto, their successors
hereunder, and the Holders of the Securities, any benefit of any legal or equitable right, remedy
or claim under this Supplemental Indenture.
Section 3.3. EXECUTION AS SUPPLEMENTAL INDENTURE. This Supplemental Indenture is executed and
shall be construed as an indenture supplemental to the Base Indenture and Supplemental Indenture
No. 1 and, as provided in the Base Indenture and Supplemental Indenture No. 1, this Supplemental
Indenture forms a part thereof.
Section 3.4. RATIFICATION AND INCORPORATION OF INDENTURE. As supplemented hereby, the Base
Indenture and Supplemental Indenture No. 1 are in all respects ratified and confirmed, and the Base
Indenture, Supplemental Indenture No. 1 and this Supplemental Indenture shall be read, taken and
construed as one and the same instrument.
Section 3.5. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE AND THE SECURITIES SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 3.6. SEPARABILITY. In case any one or more of the provisions contained in this
Supplemental Indenture shall for any reason be held to be invalid, illegal or unenforceable in any
respect, then, to the extent permitted by law, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Supplemental Indenture, but this Supplemental
Indenture shall be construed as if such invalid or illegal or unenforceable provision had never
been contained herein.
Section 3.7. COUNTERPARTS. The parties may sign any number of copies of this Supplemental
Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement.
Section 3.8. EFFECT OF HEADINGS. The Section headings herein are for convenience only and
shall not affect the construction hereof.
Section 3.9. TRUSTEE MAKES NO REPRESENTATION. The Trustee makes no representation as to the
validity or sufficiency of this Supplemental Indenture. The recitals and statements herein and in
the Securities are deemed to be those of the Company and not of the Trustee, and the Trustee
assumes no responsibility for the correctness thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed and attested, all as of the date first above written.
| ALPHA NATURAL RESOURCES, INC. |
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| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Executive Vice President, General Counsel and Corporate Secretary |
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[Signature Page to Supplement Indenture to Convertible Senior Notes Indenture]
| UNION BANK, N.A. (formerly known as UNION BANK OF CALIFORNIA, N.A.), as Trustee |
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| By: | /s/ Xxxxx Xxxxx | |||
| Name: | Xxxxx Xxxxx | |||
| Title: | Vice President | |||
[Signature Page to Supplement Indenture to Convertible Senior Notes Indenture]
