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EXHIBIT 10.20
WARRANT AGREEMENT
BETWEEN
ANKER COAL GROUP, INC.
AND
THE BANK OF NEW YORK,
AS WARRANT AGENT
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WARRANT AGREEMENT
DATED AS OF OCTOBER 26, 1999
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WARRANT AGREEMENT
WARRANT AGREEMENT, dated as of October 26, 1999 between ANKER COAL GROUP,
INC., a Delaware corporation (the "Company"), and THE BANK OF NEW YORK, a New
York banking corporation, as Warrant Agent (the "Warrant Agent").
R E C I T A L S :
WHEREAS, the Company proposes to issue warrants, as hereinafter described
(the "Warrants"), to purchase up to an aggregate of 3,047 shares of common
stock, par value $.01 per share, of the Company (the "Common Stock"); the shares
of Common Stock issuable upon exercise of the Warrants are referred to herein as
the "Warrant Shares". Subject to Section 4 of the form of Warrant Certificate
attached hereto as Exhibit A (each such Warrant in global form, a "Global
Warrant" and each such Warrant in definitive form, a "Definitive Warrant"; a
certificate representing a Global Warrant and a Definitive Warrant being
referred to herein as a "Warrant Certificate"), each Warrant entitles the holder
thereof to purchase one share of Common Stock; and
WHEREAS, the Company wishes the Warrant Agent to act on behalf of the
Company and the Warrant Agent is willing to act in connection with the issuance,
division, transfer, exchange and exercise of Warrants as provided herein;
NOW, THEREFORE, in consideration of the premises and mutual agreements
herein, the Company and the Warrant Agent hereby agree as follows:
SECTION 1. Incorporation by Reference. The terms and provisions of the
Warrant Certificate and the respective rights and obligations thereunder of the
Company and the registered owners of the Warrants evidenced thereby (the
"Holders") are hereby incorporated into this Agreement as if set forth in full
herein.
SECTION 2. Appointment of Warrant Agent and Depository. The Company
hereby appoints the Warrant Agent to act as agent for the Company in accordance
with the instructions hereinafter set forth in this Agreement, and the Warrant
Agent hereby accepts such appointment.
The Company initially appoints The Depository Trust Company ("DTC") to
act as depository ("Depository") with respect to the Global Warrant.
The Warrant Agent is authorized to enter into a letter of representations
with DTC in the form provided to the Warrant Agent by the Company and to act in
accordance with such letter.
SECTION 3. Issuance; Registration; Form of Warrant Certificate.
3.1 Initial Issuance of Warrants. The Company shall deliver to the
Warrant Agent the name or names of those persons to whom Warrants are to be
initially issued. Warrants initially issued will be interests in the Global
Warrant and credited on or about October 28, 1999 to the account of the Warrant
Agent at DTC.
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3.2 Registration. The Warrant Agent, on behalf of the Company, shall
maintain, at its corporate trust office in New York City, New York, a register
for the Warrants, in which the Warrant Agent shall record the name and address
of the person in whose name each Warrant has been issued, as well as the name
and address of each transferee and each prior owner of such Warrant. The Company
and the Warrant Agent shall be entitled to treat the Holder of any Warrant
Certificate as the owner in fact thereof for all purposes and shall not be bound
to recognize any equitable or other claim to or interest in such Warrant
Certificate on the part of any other person, and shall not be liable for any
registration of transfer of Warrant Certificates which are registered or to be
registered in the name of a fiduciary or the nominee of a fiduciary.
3.3 Form of Warrant Certificate. The text of the Warrant Certificate, the
form of exercise agreement to purchase Warrant Shares, the form of investor
agreement and the form of assignment of the Warrant Certificate shall be
substantially in the form of Exhibit A attached hereto. The price per Warrant
Share and the number of Warrant Shares issuable upon exercise of each Warrant
are subject to adjustment upon the occurrence of certain events, all as provided
in Section 4 of the Warrant Certificate.
Definitive Warrants shall be dated as of the date of countersignature
thereof by the Warrant Agent (as provided below) either upon initial issuance or
upon division, exchange, substitution or transfer.
SECTION 4. Execution of Warrants. Warrant Certificates (whether in global
or definitive form) shall be executed on behalf of the Company by its Chairman
of the Board, its President, or any Vice President under its corporate seal
reproduced thereon and attested by its Secretary or one of its Assistant
Secretaries. Each such signature upon the Warrant Certificate may be in the form
of a facsimile signature of the present or any future Chairman of the Board,
President, Vice President, Secretary, or Assistant Secretary and may be
imprinted or otherwise reproduced on the Warrant Certificates, and for that
purpose the Company may adopt and use the facsimile signature of any person who
shall have been Chairman of the Board, President, Vice President, Secretary, or
Assistant Secretary, notwithstanding the fact that at the time the Warrant
Certificates shall be countersigned and delivered or disposed of that person
shall have ceased to hold such office.
In case any officer of the Company who shall have signed any of the
Warrant Certificates shall cease to be such officer before the Warrant
Certificates so signed shall have been countersigned by the Warrant Agent or
disposed of by the Company, such Warrant Certificates nevertheless may be
countersigned and delivered or disposed of as though such person had not ceased
to be such officer of the Company; and any Warrant Certificate may be signed on
behalf of the Company by any person who, at the actual date of the execution of
such Warrant Certificate, shall be a proper officer of the Company to sign such
Warrant Certificate, although at the date of the execution of this Warrant
Agreement any such person was not such officer.
SECTION 5. Countersignature of Warrants. Warrant Certificates (whether in
global or definitive form) shall be countersigned by the Warrant Agent (or any
successor to the Warrant Agent then acting as warrant agent under this
Agreement) and shall not be valid for any purpose unless so countersigned.
Warrant Certificates may be countersigned, however, by the Warrant Agent (or by
its successor as warrant agent hereunder) and may be delivered by the Warrant
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Agent, notwithstanding that the persons whose manual or facsimile signatures
appear thereon as proper officers of the Company shall have ceased to be such
officers at the time of such countersignature, issuance or delivery. The Warrant
Agent shall, upon written instructions of the Chairman of the Board, the
President, one of the Vice Presidents, the Treasurer, or the Secretary or an
Assistant Secretary of the Company, initially countersign, issue and deliver
Warrant Certificates entitling the Holders thereof to purchase not more than
3,047 Warrant Shares and shall countersign and deliver Warrant Certificates as
otherwise provided in this Agreement.
SECTION 6. Registration of Transfers and Exchanges.
6.1 Transfer and Exchange of Global Warrants. The transfer and exchange
of Global Warrants or beneficial interests therein shall be effected through the
Depository, in accordance with this Warrant Agreement and the procedures of the
Depository therefor.
6.2 Exchange of a Beneficial Interest in a Global Warrant for a
Definitive Warrant.
(a) Any person having a beneficial interest in a Global Warrant
may upon request exchange such beneficial interest for a Definitive
Warrant. Upon receipt by the Warrant Agent of written instructions or
such other form of instructions as is customary for the Depository from
the Depository or its nominee on behalf of any person having a beneficial
interest in a Global Warrant and, in the case of Registrable Securities
(as defined in the Common Stock Registration Rights Agreement dated as of
October 26, 1999 by and among the Company and the purchaser(s) named
therein), the following additional information and documents (all of
which may be submitted by facsimile), as applicable:
(i) if such beneficial interest is being delivered to
the Person designated by the Depository as being the beneficial
owner, a certification from such beneficial owner to that effect
(in substantially the form of Exhibit B hereto);
(ii) if such beneficial interest is being transferred (1)
to a "qualified institutional buyer" (as defined in Rule 144A) in
accordance with Rule 144A or (2) pursuant to an exemption from
registration in accordance with Rule 144 or (3) pursuant to an
effective registration statement under the Securities Act, a
certification to that effect (in substantially the form of Exhibit
B hereto);
(iii) if such beneficial interest is being transferred
pursuant to an exemption from registration in accordance with Rule
904 under the Securities Act, a certification to that effect (in
substantially the form of Exhibit B hereto); or
(iv) if such beneficial interest is being transferred in
reliance on another exemption from the registration requirements
of the Securities Act (and based on an opinion of counsel if the
Company or the Warrant Agent so requests), a certification to that
effect (in substantially the form of Exhibit B hereto);
then, in accordance with the standing instructions and procedures existing
between the Depository and the Warrant Agent, the Warrant Agent shall cause the
number of Warrants represented by the Global Warrant to be reduced by the number
of Warrants to be represented by the Definitive
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Warrants to be issued in exchange for the interest in the Global Warrant and,
following such reduction, the Company shall execute and the Warrant Agent shall
countersign and deliver to the transferee, as the case may be, a Definitive
Warrant.
(b) Definitive Warrants issued in exchange for a beneficial
interest in a Global Warrant pursuant to this Section 6.2 shall be
registered in such names as the Depository, pursuant to the instructions
from its direct or indirect participants or otherwise, shall instruct the
Warrant Agent. The Warrant Agent shall deliver such Definitive Warrants
to the persons in whose names such Warrants are so registered.
6.3 Transfer and Exchange of Definitive Warrants. When Definitive
Warrants are presented to the Warrant Agent with a request:
(a) to register the transfer of the Definitive Warrants; or
(b) to exchange such Definitive Warrants for an equal number of
Definitive Warrants of other authorized denominations,
the Warrant Agent shall register the transfer or make the exchange as requested
if the following requirements are met:
(x) the Definitive Warrants presented or surrendered for
registration of transfer or exchange shall be duly endorsed or
accompanied by a written instruction of transfer in form satisfactory to
the Warrant Agent, duly executed by the Holder thereof or by his
attorney, duly authorized in writing; and
(y) in the case of Registrable Securities, such request shall
be accompanied by the following additional information and documents (all
of which may be submitted by facsimile), as applicable:
(i) if such Registrable Security is being delivered to
the Warrant Agent by a Holder for registration in the name of such
Holder, without transfer, a certification from such Holder to that
effect (in substantially the form of Exhibit B hereto);
(ii) if such Registrable Security is being transferred
(1) to a "qualified institutional buyer" (as defined in Rule 144A)
in accordance with Rule 144A or (2) pursuant to an exemption from
registration in accordance with Rule 144 or (3) pursuant to an
effective registration statement under the Securities Act, a
certification to that effect (in substantially the form of Exhibit
B hereto);
(iii) if such Registrable Security is being transferred
pursuant to an exemption from registration in accordance with Rule
904 under the Securities Act, a certification to that effect (in
substantially the form of Exhibit B hereto); or
(iv) if such Registrable Security is being transferred in
reliance on another exemption from the registration requirements
of the Securities Act (and
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based on an opinion of counsel if the Company or the Warrant Agent
so requests), a certification to that effect (in substantially the
form of Exhibit B hereto).
6.4 Restrictions on Exchange or Transfer of a Definitive Warrant for a
Beneficial Interest in a Global Warrant. A Definitive Warrant may not be
exchanged for a beneficial interest in a Global Warrant except upon satisfaction
of the requirements set forth below. Upon receipt by the Warrant Agent of a
Definitive Warrant, duly endorsed or accompanied by appropriate instruments of
transfer, in form satisfactory to the Warrant Agent, together with:
(a) if such Definitive Warrant is a Registrable Security,
certification from the Holder thereof (in substantially the form of
Exhibit B hereto) to the effect that such Definitive Warrant is being
transferred by such Holder either (A) to a "qualified institutional
buyer" (as defined in Rule 144A) in accordance with Rule 144A (and based
on an opinion of counsel if the Company or the Warrant Agent so requests)
or (B) outside the United States, to a foreign Person in a transaction
meeting the requirements of Rule 904 under the Securities Act (and based
on an opinion of counsel if the Company or the Warrant Agent so requests)
who wishes to take delivery thereof in the form of a beneficial interest
in a Global Warrant; and
(b) whether or not such Definitive Warrant is a Registrable
Security, written instructions directing the Warrant Agent to make, or to
direct the Depository to make, an endorsement on the Global Warrant to
reflect an increase in the number of Warrants represented by the Global
Warrant,
then the Warrant Agent shall cancel such Definitive Warrant and cause, or direct
the Depository to cause, in accordance with the standing instructions and
procedures existing between the Depository and the Warrant Agent, the number of
Warrants represented by the Global Warrant to be increased accordingly. If no
Global Warrants are then outstanding, the Company shall issue and the Warrant
Agent shall countersign a new Global Warrant representing the appropriate number
of Warrants.
6.5 Restrictions on Transfer and Exchange of Global Warrants.
Notwithstanding any other provisions of this Warrant Agreement (other than the
provisions set forth in Section 6.6), a Global Warrant may not be transferred as
a whole except by the Depository to a nominee of the Depository or by a nominee
of the Depository to the Depository or another nominee of the Depository or by
the Depository or any such nominee to a successor Depository or a nominee of
such successor Depository.
6.6 Countersigning of Definitive Warrants in Absence of Depository. If at
any time the Depository for the Global Warrants notifies the Company that the
Depository is unwilling or unable to continue as Depository for the Global
Warrants and a successor Depository for the Global Warrants is not appointed by
the Company within 90 days after delivery of such notice, then the Company shall
execute, and the Warrant Agent, upon receipt of written instructions signed by
two officers of the Company, shall countersign and deliver Definitive Warrants,
in an aggregate number equal to the number of Warrants represented by Global
Warrants, in exchange for such Global Warrants.
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6.7 Legends.
(a) Each Warrant Certificate evidencing the Global Warrants and
the Definitive Warrants (and all Warrants issued in exchange therefor or
substitution thereof) and each certificate representing the Warrant
Shares shall bear a legend in substantially the following form:
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR WARRANTS
IN DEFINITIVE FORM, THIS WARRANT MAY NOT BE TRANSFERRED EXCEPT AS
A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A
NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF
THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY.
THE DEPOSITORY TRUST COMPANY ("DTC") (55 XXXXX XXXXXX, XXX XXXX,
XXX XXXX) SHALL ACT AS THE DEPOSITORY UNTIL A SUCCEESSOR SHALL BE
APPOINTED BY THE COMPANY AND THE WARRANT AGENT. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO
THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.(1)
NEITHER THE WARRANT REPRESENTED HEREBY OR THE WARRANT SHARES
ISSUABLE UPON EXERCISE HEREOF HAVE BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR ANY
STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO,
OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET
FORTH
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(1) This paragraph is to be included only if the Warrant is in global form.
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BELOW. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST
HEREIN, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) (A "QIB") OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR"
(AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT (AN "INSTITUTIONAL ACCREDITED INVESTOR")
OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS WARRANT OR
THE WARRANT SHARES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL
NOT, WITHIN THE TIME PERIOD REFERRED TO IN RULE 144(k) UNDER THE
SECURITIES ACT AS IN EFFECT ON THE DATE OF THE TRANSFER OF THIS
WARRANT OR THE WARRANT SHARES WITH RESPECT TO SUCH TRANSFER,
RESELL OR OTHERWISE TRANSFER THIS WARRANT OR THE WARRANT SHARES
EXCEPT (A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (B) INSIDE
THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES
IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C)
INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR
THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE COMPANY OR THE
SELLER A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS
WARRANT OR THE WARRANT SHARES, (D) OUTSIDE THE UNITED STATES IN AN
OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR 904
OF THE SECURITIES ACT, (E) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (F) IN
ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY) OR (G) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH THE
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR
ANY OTHER APPLICABLE JURISDICTION AND (3) AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THIS WARRANT, THE WARRANT SHARES OR
ANY INTEREST
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HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND. IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED
INVESTOR PURCHASING PURSUANT TO CLAUSE 2(C) ABOVE, THE HOLDER
MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE COMPANY SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF
THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING
MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES"
AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF
REGULATION S UNDER THE SECURITIES ACT.
THE WARRANT SHARES ARE SUBJECT TO THE RESTRICTIONS CONTAINED IN AN
INVESTOR AGREEMENT (THE "INVESTOR AGREEMENT") DATED OCTOBER 26,
1999 AMONG THE COMPANY AND THE STOCKHOLDERS AND PURCHASERS NAMED
THEREIN. EACH HOLDER OF THIS WARRANT MUST BECOME A PARTY TO THE
INVESTOR AGREEMENT AT OR PRIOR TO EXERCISE OF THIS WARRANT. IN
ADDITION, THE WARRANT SHARES ARE SUBJECT TO CERTAIN PROVISIONS OF
A STOCKHOLDERS AGREEMENT DATED AUGUST 12, 1996 AMONG CERTAIN
STOCKHOLDERS OF THE COMPANY, WHICH PROVISIONS ARE REFERENCED IN
SUCH INVESTOR AGREEMENT. HOLDERS OF WARRANTS HAVE THE BENEFIT OF
CERTAIN PREEMPTIVE OR PURCHASE RIGHTS SET FORTH IN THE
STOCKHOLDERS AGREEMENT AND REFERENCED HEREIN. A COPY OF SUCH
STOCKHOLDERS AGREEMENT IS ON FILE AT THE OFFICE OF THE SECRETARY
OF THE COMPANY. THE FORM OF INVESTOR AGREEMENT IS ATTACHED HERETO
AS EXHIBIT 2.
6.8 Cancellation of Global Warrant. At such time as all beneficial
interests in Global Warrants have either been exchanged for Definitive Warrants,
redeemed, repurchased or cancelled, all Global Warrants shall be returned to or
retained and cancelled by the Warrant Agent.
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6.9 Obligations with Respect to Transfers and Exchanges of Warrants.
(a) To permit registrations of transfers and exchanges, the
Company shall execute and the Warrant Agent is hereby authorized to
countersign, in accordance with the provisions of Section 5 and this
Section 6, Definitive Warrants and Global Warrants as required pursuant
to the provisions of this Section 6. Notwithstanding anything to the
contrary contained herein, the Company shall refuse to register any
transfer of the Warrants not made in accordance with Rule 144A,
Regulation S, pursuant to registration under the Securities Act or
pursuant to an available exemption from the registration requirements of
the Securities Act; provided, however, that if a foreign law prevents the
Company from refusing to register securities transfers, the Company shall
implement other reasonable measures designed to prevent transfers of the
Warrants not made in accordance with Rule 144A, Regulation S, pursuant to
registration under the Securities Act or pursuant to an available
exemption from the registration requirements of the Securities Act.
(b) All Definitive Warrants and Global Warrants issued upon any
registration of transfer or exchange of Definitive Warrants or Global
Warrants shall be the valid obligations of the Company, entitled to the
same benefits under this Warrant Agreement, as the Definitive Warrants or
Global Warrants surrendered upon such registration of transfer or
exchange.
(c) Prior to due presentment for registration of transfer of
any Warrant, the Warrant Agent and the Company may deem and treat the
person in whose name any Warrant is registered as the absolute owner of
such Warrant and neither the Warrant Agent, nor the Company shall be
affected by notice to the contrary.
(d) No service charge shall be made to a Holder for any
registration of transfer or exchange.
SECTION 7. No Rights as Stockholders. Nothing contained in this Agreement
or in any Warrant Certificate shall be construed as conferring upon any of the
Holders or their transferees the right to vote or to receive dividends or to
consent or to receive notice as stockholders in respect of any meeting of
stockholders of the Company for the election of the directors of the Company or
any other matter, or any rights whatsoever as stockholders of the Company.
SECTION 8. Disposition of Proceeds on Exercise of Warrants; Inspection of
Warrant Agreement. The Warrant Agent shall promptly inform the Company with
respect to Warrants exercised and concurrently pay to the Company all monies
received by the Warrant Agent for the purchase of the Warrant Shares through the
exercise of such Warrants.
The Warrant Agent shall keep copies of this Agreement and any notices
given or received hereunder available for inspection by the Holders during
normal business hours at the Office. The Company shall supply the Warrant Agent
from time to time with such numbers of copies of this Agreement as the Warrant
Agent may request.
SECTION 9. Merger or Consolidation or Change of Name of Warrant Agent.
Any corporation into which the Warrant Agent may be merged or with which it may
be consolidated,
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or any corporation resulting from any merger or consolidation to which the
Warrant Agent shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of the Warrant Agent, shall be
the successor to the Warrant Agent hereunder without the execution or filing of
any paper or any further act on the part of any of the parties hereto, provided
that such corporation would be eligible for appointment as a successor warrant
agent under the provisions of Section 11 hereof. In case at the time such
successor to the Warrant Agent shall succeed to the agency created by this
Agreement, any of the Warrants shall have been countersigned but not delivered,
any such successors to the Warrant Agent may adopt the countersignature of the
original Warrant Agent and deliver such Warrants so countersigned; and in case
at that time any of the Warrants shall not have been countersigned, any
successor to the Warrant Agent may countersign such Warrants either in the name
of the predecessor Warrant Agent or in the name of the successor warrant agent;
and in all such cases, such Warrants shall have the full force provided in the
Warrants and in this Agreement.
In case at any time the name of the Warrant Agent shall be changed and at
such time any of the Warrants shall have been countersigned but not delivered,
the Warrant Agent may adopt the countersignatures under its prior name and
deliver such Warrants as so countersigned; and in case at that time any of the
Warrants shall not have been countersigned, the Warrant Agent may countersign
such Warrants either in its prior name or in its changed name; and in all such
cases, such Warrants shall have the full force provided in the Warrants and in
this Agreement.
SECTION 10. Concerning the Warrant Agent. The Warrant Agent undertakes
the duties and obligations imposed by this Agreement upon the following terms
and conditions, by all of which the Company and the Holders, by their acceptance
of Warrants, shall be bound:
10.1 Correctness of Statements. The statements contained herein and in
the Warrant shall be taken as statements of the Company, and the Warrant Agent
assumes no responsibility for the correctness of any of the same except such as
describe the Warrant Agent or any action taken by it. The Warrant Agent assumes
no responsibility with respect to the distribution of the Warrants except as
herein otherwise provided.
10.2 Breach of Covenants. The Warrant Agent shall not be responsible for
any failure of the Company to comply with the covenants contained in this
Agreement or in the Warrants to be complied with by the Company.
10.3 Performance of Duties. The Warrant Agent may execute and exercise
any of the rights or powers hereby vested in it or perform any duty hereunder
either itself (through its employees) or by or through its attorneys or agents
(which shall not include its employees) and shall not be responsible for the
misconduct of any agent appointed with due care.
10.4 Reliance on Counsel. The Warrant Agent may consult at any time with
legal counsel satisfactory to it (who may be counsel for the Company), and the
Warrant Agent shall incur no liability or responsibility to the Company or to
any Holder in respect of any action taken, suffered or omitted by it hereunder
in good faith and in accordance with the opinion or the advice of such counsel.
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10.5 Proof of Actions Taken. Whenever in the performance of its duties
under this Agreement the Warrant Agent shall deem it necessary or desirable that
any fact or matter be proved or established by the Company prior to taking or
suffering any action hereunder, such fact or matter (unless other evidence in
respect thereof be herein specifically prescribed) may be deemed conclusively to
be proved and established by a certificate signed by the Chairman of the Board,
the President, one of Vice Presidents, the Treasurer or the Secretary of the
Company and delivered to the Warrant Agent; and such certificate shall be full
authorization to the Warrant Agent for any action taken or suffered in good
faith by it under the provisions of this Agreement in reliance upon such
certificate.
10.6 Compensation. The Company agrees to pay the Warrant Agent reasonable
compensation for all services rendered by the Warrant Agent in the performance
of its duties under this Agreement, to reimburse the Warrant Agent for all
expenses, taxes and governmental charges and other charges of any kind and
nature incurred by the Warrant Agent in the performance of its duties under this
Agreement, including reasonable counsel fees, and to indemnify the Warrant Agent
and save it harmless against any and all liabilities, including judgments, costs
and counsel fees, for anything done or omitted by the Warrant Agent in the
performance of its duties under this Agreement, except as a result of the
Warrant Agent's gross negligence or bad faith.
10.7 Legal Proceedings. The Warrant Agent shall be under no obligation to
institute any action, suit or legal proceeding or to take any other action
likely to involve expense unless the Company or one or more Holders shall
furnish the Warrant Agent with reasonable security and indemnity for any costs
and expenses which may be incurred, but this provision shall not affect the
power of the Warrant Agent to take such action as the Warrant Agent may consider
proper, whether with or without any such security or indemnity. All rights of
action under this Agreement or under any of the Warrants may be enforced by the
Warrant Agent without the possession of any of the Warrants or the production
thereof at any trial or other proceeding relative thereto, and any such action,
suit or proceeding instituted by the Warrant Agent shall be brought in its name
as Warrant Agent, and any recovery or judgment shall be for the ratable benefit
of the Holders, as their respective rights or interests may appear.
10.8 Other Transactions in Securities of Company. The Warrant Agent and
any stockholder, director, officer or employee of the Warrant Agent may buy,
sell or deal in any of the Warrants or other securities of the Company or become
pecuniarily interested in any transactions in which the Company may be
interested, or contract with or lend money to the Company or otherwise act as
fully and freely as though it were not Warrant Agent under this Agreement or
such director, officer or employee. Nothing herein shall preclude the Warrant
Agent from acting in any other capacity for the Company or for any other legal
entity including, without limitation, acting as Transfer Agent or as a lender to
the Company or an affiliate thereof.
10.9 Liability of Warrant Agent. The Warrant Agent shall act hereunder
solely as agent, and its duties shall be determined solely by the provisions
hereof. The Warrant Agent shall not be liable for anything which it may do or
refrain from doing in connection with this Agreement except for its own gross
negligence or bad faith.
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10.10 Reliance on Documents. The Warrant Agent will not incur any
liability or responsibility to the Company or to any Holder for any action taken
in reliance on any notice, resolution, waiver, consent, order, certificate, or
other paper, document or instrument reasonably believed by it to be genuine and
to have been signed, sent or presented by the proper party or parties.
10.11 Validity of Agreement. The Warrant Agent shall not be under any
responsibility in respect of the validity of this Agreement or the execution and
delivery hereof (except the due execution hereof by the Warrant Agent) or in
respect of the validity or execution of any Warrant (except its countersignature
thereof); nor shall the Warrant Agent by any act hereunder be deemed to make any
representation or warranty as to the authorization or reservation of any Warrant
Shares (or other stock) to be issued pursuant to this Agreement or any Warrant,
or as to whether any Warrant Shares (or other stock) will, when issued, be
validly issued, fully paid and nonassessable, or as to the Exercise Price or the
number or amount of Warrant Shares or other securities or other property
issuable upon exercise of any Warrant.
10.12 Instructions from the Company. The Warrant Agent is hereby
authorized and directed to accept instructions with respect to the performance
of its duties hereunder from the Chairman of the Board, the President, any Vice
President or the Secretary of the Company, and to apply to such officers for
advice or instructions in connection with its duties, and shall not be liable
for any action taken or suffered to be taken by it in good faith and without
negligence in accordance with instructions of any such officer or officers.
SECTION 11. Change of Warrant Agent. The Warrant Agent may resign and be
discharged from its duties under this Agreement by giving to the Company 30
days' notice in writing. The Warrant Agent may be removed by like notice to the
Warrant Agent from the Company. If the Warrant Agent shall resign or be removed
or shall otherwise become incapable of acting, the Company shall appoint a
successor to the Warrant Agent. If the Company shall fail to make such
appointment within a period of 30 days after such removal or after it has been
notified in writing of such resignation or incapacity by the resigning or
incapacitated Warrant Agent or by any Holder (who shall with such notice submit
his Warrant for inspection by the Company), then any Holder may apply to any
court of competent jurisdiction for the appointment of a successor to the
Warrant Agent. Pending appointment of a successor warrant agent, either by the
Company or by such court, the duties of the Warrant Agent shall be carried out
by the Company. Any successor warrant agent, whether appointed by the Company or
such a court, shall be a bank or trust company in good standing, incorporated
under the laws of the United States of America or any State thereof or the
District of Columbia and having at the time of its appointment as warrant agent
a combined capital and surplus of at least $100,000,000. After appointment, the
successor warrant agent shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named as Warrant Agent without
further act or deed; but (a) the former Warrant Agent shall be entitled to the
benefit of the provisions of Section 10 with respect to actions or omissions
while it was the Warrant Agent and (b) the former Warrant Agent shall deliver
and transfer to the successor warrant agent any property at the time held by it
hereunder, and execute and deliver any further assurance, conveyance, act or
deed necessary for such purpose. Failure to file any notice provided for in this
Section 11, however, or any defect therein, shall not affect the legality or
validity of the resignation or removal of the Warrant Agent or the appointment
of the successor warrant agent, as the case may
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be. In the event of such resignation or removal, the Company or the successor
warrant agent shall mail by first class mail, postage prepaid, to each Holder,
written notice of such removal or resignation and the name and address of such
successor warrant agent.
SECTION 12. Identity of Transfer Agent. Forthwith upon the appointment of
any Transfer Agent for the Common Stock, or any other shares of the Company's
capital stock issuable upon the exercise of the Warrants, the Company shall file
with the Warrant Agent a statement setting forth the name and address of such
Transfer Agent.
SECTION 13. Notices. Any notice herein required or permitted to be given
shall be in writing and may be personally served or delivered by courier or by
confirmed telecopy, and shall be deemed delivered at the time and date of
receipt (which shall include telephone line facsimile transmission). The
addresses for such communications shall be:
If to the Company:
Anker Coal Group, Inc.
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: P. Xxxxx Xxxxxx, President
With a copy to:
Xxxxx Xxxxxx Xxxxxx & Xxxxxxxxx, a Professional Corporation
Xxx Xxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx
and if to the Holder, at such address as Holder shall have provided in writing
to the Company, or at such other address as each such party furnishes by notice
given in accordance with this Section 13.
SECTION 14. Supplements and Amendments. The Company and the Warrant Agent
may from time to time supplement or amend this Agreement without the approval of
any Holder in order to cure any ambiguity or to correct or supplement any
provision contained herein which may be defective or inconsistent with any other
provision herein or to make any other provisions in regard to matters or
questions arising hereunder which the Company and the Warrant Agent may deem
necessary or desirable and which shall not be inconsistent with the provisions
of the Warrants and which shall not adversely affect the interests of the
Holders in any material respect.
SECTION 15. Successors. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Warrant Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.
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SECTION 16. Merger or Consolidation of the Company. The Company will not
merge or consolidate with or into, or sell, transfer or lease all or
substantially all of its property to any other corporation unless the successor,
transferee or lessee corporation, as the case may be (if not the Company), shall
expressly assume the due and punctual performance and observance of each and
every covenant and condition of this Agreement and each Warrant Certificate
issued hereunder to be performed and observed by the Company, and the Company
(or successor) shall provide an opinion of counsel to such effect.
SECTION 17. Applicable Law. This Agreement and each Warrant Certificate
issued hereunder shall be governed by and construed in accordance with the laws
of the State of New York, without giving effect to principles of conflict of
laws. The Warrant Agent and the Company agree to submit to the jurisdiction of
the courts of the State of New York in any action or proceeding arising out of
or relating to this Agreement.
SECTION 18. Benefits of this Warrant Agreement. Nothing in this Agreement
shall be construed to give to any person or entity other than the Company, the
Warrant Agent and the Holders any legal or equitable right, remedy or claim
under this Agreement; and this Agreement shall be for the sole and exclusive
benefit of the Company, the Warrant Agent and the Holders.
SECTION 19. Captions. The captions of the Sections and paragraphs of this
Agreement have been inserted for convenience only and shall have no substantive
effect.
SECTION 20. Counterparts. This Agreement may be executed in any number of
counterparts each of which so executed shall be deemed to be an original, but
such counterparts together shall constitute but one and the same instrument.
SECTION 21. Termination. This Agreement shall terminate on the fifteenth
day following the later to occur of (i) the expiration of the Exercise Period,
and (ii) the date on which Warrant Shares have been issued upon the exercise of
all Warrants pursuant hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of this ____ day of October, 1999.
ANKER COAL GROUP, INC.
By: /s/ Xxxxx Xxxxxx
----------------------------------
Name: Xxxxx Xxxxxx
Title: President
THE BANK OF NEW YORK,
as Warrant Agent
By: /s/ XxXxx Xxxxxxx
----------------------------------
Name: XxXxx Xxxxxxx
Title: Assistant Vice President
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EXHIBIT A
FORM OF WARRANT CERTIFICATE
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EXHIBIT B
FORM OF CERTIFICATION
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CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR
REGISTRATION OF TRANSFER OF WARRANTS
Re: _______ Warrants to Purchase Common Stock (the "Warrants") of Anker Coal
Group, Inc.
This Certificate relates to __________ Warrants held in* _____ book-entry
or _____ definitive form by ____________ (the "Transferor").
The Transferor:
[ ] has requested the Warrant Agent by written order to deliver in
exchange for its beneficial interest in the Global Warrant(s) held by the
depositary a Warrant or Warrants in definitive, registered form equal to its
beneficial interest in such Global Warrant(s) (or the portion thereof indicated
above); or
[ ] has requested the Warrant Agent by written order to exchange or
register the transfer of a Warrant or Warrant(s).
In connection with such request and in respect of each such Warrant, the
Transferor does hereby certify that the Transferor is familiar with the Warrant
Agreement relating to the above captioned Warrants and that the transfer of each
such Warrant does not require registration under the Securities Act of 1933, as
amended (the "Securities Act"), because:
[ ] Each such Warrant is being acquired for the Transferor's own
account without transfer.
[ ] Each such Warrant is being transferred (i) to a "qualified
institutional buyer" (as defined in Rule 144A under the Securities Act), in
reliance on Rule 144A or (ii) pursuant to an exemption from registration in
accordance with Rule 904 under the Securities Act (and, in the case of clause
(ii), based on an opinion of counsel and written certification if the Company or
the Warrant Agent so requests).
[ ] Each such Warrant is being transferred (i) in accordance with Rule
144 under the Securities Act (and based on an opinion of counsel if the Company
or the Warrant Agent so requests) or (ii) pursuant to an effective registration
statement under the Securities Act.
-----------------------------------
* Check applicable box.
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[ ] Each such Warrant is being transferred in reliance on and in
compliance with another exemption from the registration requirements of the
Securities Act (and based on an opinion of counsel if the Company or the Warrant
Agent so requests).
[INSERT NAME OF TRANSFEROR]
By:
---------------------------
Name:
---------------------------
Title:
---------------------------
Date:
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