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EXHIBIT 10.22
ANKER COAL GROUP, INC.
THE STOCKHOLDERS NAMED HEREIN
AND
THE HOLDERS OF WARRANT SHARES NAMED HEREIN
===============================================================================
INVESTOR AGREEMENT
===============================================================================
as of October 26, 1999
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ANKER COAL GROUP, INC.
INVESTOR AGREEMENT
This Investor Agreement is made as of October 26, 1999 (the "Agreement")
by and among Anker Coal Group, Inc., a Delaware corporation (the "Company"),
each of the Stockholders of the Company listed on the signature pages of this
Agreement and the Holders named in Schedule I hereto (the "Holders").
RECITALS
A. The Company and the existing Stockholders of the Company (with the
exception of JJF Group Limited Liability Company, The Estate of ▇▇▇▇ ▇. ▇▇▇▇▇▇
and The Estate of ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, the "Existing Stockholders") have
previously entered into a Stockholders Agreement dated as of August 12, 1996,
providing certain rights and obligations of the Company and the Existing
Stockholders (the "Stockholders Agreement").
B. The Company desires to issue to the Holders warrants (the "Warrants")
to purchase an aggregate of 3,047 shares of Common Stock (the "Warrant Shares")
of the Company pursuant to the Exchange and Purchase Agreement (the "Purchase
Agreement") dated as of October 26, 1999 among the Company, the Guarantors named
therein and the Holders.
C. To induce the Holders to purchase or receive pursuant to the Purchase
Agreement the Company's 14.25% Second Priority Senior Secured Notes due 2007
(PIK through April 1, 2000) in accordance with the Indenture dated as of October
1, 1999 among the Company, the Guarantors signatory thereto and The Bank of New
York, as Trustee (the "Indenture") and the Warrants in accordance with the
Warrant Agreement dated as of October 26, 1999 between the Company and The Bank
of New York, as Warrant Agent (the "Warrant Agreement"), the Company and the
Existing Stockholders desire that the Company grant to the Holders the rights
set forth herein, subject to the obligations of Holders set forth herein, and
further desire to amend the Stockholders Agreement to the extent required to
implement the intent and purposes of this Agreement.
D. The Company, the Existing Stockholders and the Holders intend that
this Agreement will govern the rights and obligations of the Holders and their
permitted assigns, as Holders of the Warrant Shares.
In consideration of the foregoing and the agreements contained herein and
for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties agree as follows:
ARTICLE I
OPERATIVE PROVISIONS
1.1 THE STOCKHOLDERS AGREEMENT; PROVISIONS APPLICABLE TO HOLDERS OF
WARRANT SHARES. The Holders shall not be bound by any of the provisions of the
Stockholders Agreement except as expressly set forth in this Agreement. The
Holders shall have the benefit of and shall be bound by the following provisions
of the Stockholders Agreement with respect to any
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Warrant Shares which they may hold or hereafter acquire upon exercise of
Warrants. The Warrants shall be freely transferable subject to the restrictions
set forth in the Warrant Agreement, the Warrant and in the Purchase Agreement
and shall not be subject to any of the restrictions set forth in this Agreement
or the Stockholders Agreement.
(a) CHANGES IN CAPITAL. Each Holder of Warrant Shares shall have
the benefit of the provisions set forth in Article II of the Stockholders
Agreement (Changes In Capital) with respect to the Warrant Shares, including the
right to purchase New Equity Securities (as defined therein) on the terms set
forth therein. For purposes of all calculations pursuant to said Article II, all
Warrants shall be deemed to have been exercised for Warrant Shares and each
Holder which holds Warrants shall be deemed to hold the number of Warrant Shares
issuable upon exercise of such Holder's Warrants and any other shares of Common
Stock held by such Holder.
(b) CERTAIN RIGHTS AND RESTRICTIONS. (i) Holders of Warrant Shares
to have Tag Along Rights. Each Holder of Warrant Shares shall have the benefits
and be subject to the terms of Section 3.7 of the Stockholders Agreement which
shall apply to the Warrant Shares as though each Holder of Warrant Shares were a
party to the Stockholders Agreement.
(ii) Restrictions on Disposition. Any Holder of Warrant
Shares which transfers any or all of such Warrant Shares to any person or entity
not already a party to this Agreement shall, as a written condition of such
transfer, require the transferee to become a party to this Agreement and the
Registration Rights Agreement. No such transfer shall be valid unless such
transferee has in writing agreed to be bound by all of the provisions of (A)
this Agreement in an Accession Agreement substantially in the form set forth as
Exhibit A hereto and (B) the Registration Rights Agreement in the form of an
Accession Agreement substantially in the form set forth as Exhibit B hereto. The
Company shall execute such Accession Agreement on its own behalf and on behalf
of the other parties hereto in the event of any such transfer, and each party
hereto hereby irrevocably consents to such execution on its behalf.
(iii) Restrictions on Merger and Sale of Assets and Stock.
Until the earlier of an initial public offering of the Company's Common Stock or
October 30, 2002, (i) the Company shall not consolidate or merge with or into
(whether or not the Company is the surviving corporation), or sell, assign,
transfer, lease, convey or otherwise dispose of all or a majority of its
properties or assets in one or more related transactions, to another
corporation, person or entity except (x) in accordance with the terms of the
Indenture and (y) upon the affirmative written vote or consent of the holders of
at least 85% of the outstanding Common Stock as of the Record Date; and (ii)
neither the Company nor any of the Holders, in one transaction or in a series of
related transactions, will sell, transfer or otherwise dispose of more than 50%
of the Company's outstanding Common Stock except upon the affirmative written
vote or consent of at least 85% of the holders of the outstanding Common Stock
as of the Record Date. The Company and any such Holder or Holders shall give at
least 30 days' prior written notice to all Holders prior to the Record Date.
For purposes of the foregoing, "Record Date" shall mean the
date fixed for a stockholder vote pursuant to the terms of the Company's
certificate of incorporation and by-laws.
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(c) NO TRANSFERS TO PERSONS ENGAGED IN COMPETITION. Each Holder
agrees that it shall not transfer any Warrant Shares to any person or entity
which, to the knowledge of such Holder, is engaged in Competition with the
Company. For this purpose, "Competition" shall mean engaging in any business in
the states of West Virginia, Maryland, Pennsylvania, Virginia or Kentucky
involving the purchase for resale, sale, operation or maintenance for resale of
coal, coal reserves, coal inventories, coal mines, coal mining operations, coal
processing operations, processing or disposing of ash produced from the
consumption of coal; the conduct or performance of coal mining, coal loading,
coal processing or contract coal mining or coal processing; the employment of
independent contractors in connection with any of the foregoing; or the conduct
of coal trading; or the holding of any equity investment constituting a
controlling equity interest in any entity or business which at the time such
transfer or Warrant Shares is proposed to be made is engaged in Competition. If
a person or entity engaged in Competition acquires control of any Holder of
Warrant Shares that holds in excess of 10% of the Common Stock at the time
outstanding, the Company shall have the right to repurchase such Holder's
Warrant Shares at Fair Market Value (as defined in the Stockholders Agreement)
on the terms and subject to the conditions of Section 4.2 of the Stockholders
Agreement as in effect on the date hereof.
(d) REGISTRATION RIGHTS. (i) Each Holder shall have the
registration rights with respect to the Warrant Shares set forth in the Common
Stock Registration Rights Agreement attached as Exhibit B to the Purchase
Agreement. (ii) Each Existing Stockholder agrees that Section 3(b) of the
Registration Rights Agreement shall be amended and restated as follows:
"(b) Priority in Incidental Registrations. If a
registration pursuant to this Section 3 involves an underwritten offering and
the managing underwriter advises the Company in writing that, in its opinion,
the number of securities which the Company, the Holders and any other persons
intend to include in such registration exceeds the number which would have an
adverse effect on such offering, including the price at which such securities
can be sold, the Company will include in such registration (i) first, all the
securities the Company proposes to sell for its own account, and (ii) second,
the number of Registrable Securities requested to be included in such
registration by the Holders, which number, in the opinion of such underwriters,
can be sold without having the adverse effect referred to above, such amount to
be allocated pro rata among all such requesting Holders and by the holders of
Registrable Securities ("Purchaser Registrable Securities") as defined in the
Registration Rights Agreement dated October 26, 1999 among the Company and the
Purchasers (the "Purchasers") named therein on the basis of the relative number
of shares of Registrable Securities and other securities each Holder and
Purchaser Registrable Securities each Purchaser has requested to be included in
such registration, and (iii) third, the number of Registrable Securities
requested to be included in such registration by persons other than Holders and
Purchasers, which number, in the opinion of such underwriters, can be sold
without having the adverse effect referred to above, such amount to be allocated
pro rata among all such requesting other persons on the basis of the relative
number of shares of Registrable Securities and other securities each such other
person has requested to be included in such registration."
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(e) WAIVER OF PREEMPTIVE AND PURCHASE RIGHTS. Each Existing
Shareholder hereby irrevocably waives any and all preemptive or purchase rights
it may have with respect to the Warrants and the Warrant Shares pursuant to
Article II of the Stockholders Agreement.
ARTICLE II
MISCELLANEOUS
2.1 NO WAIVER OF RIGHTS. No failure or delay on the part of any party in
the exercise of any power, right or privilege hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such power,
right or privilege preclude other or further exercise thereof or of any other
right, power or privilege. All rights and remedies existing under this Agreement
are cumulative to, and not exclusive of, any rights or remedies otherwise
available.
2.2 TERM OF AGREEMENT. This Agreement shall continue in full force and
effect until the earlier of (i) termination by mutual consent, or (ii)
dissolution of the Company, or (iii) termination of the Stockholders Agreement
pursuant to Section 6.2 thereof.
2.3 ASSIGNMENT. This Agreement shall be binding on the parties and the
successors and assigns of each of them.
2.4 INTEGRATION. This Agreement with its exhibits, which are hereby
incorporated herein and made a part hereof, the Warrant Agreement, the Warrants
and the Registration Rights Agreements set forth the entire understanding
between the parties relating to the subject matter contained herein and merges
all prior discussions between them. No amendment to this Agreement shall be
effective unless in writing and executed by each of the parties hereto.
2.5 SEVERABILITY. If any one or more of the provisions contained in this
Agreement or any document executed in connection herewith shall be invalid,
illegal or unenforceable in any respect under any applicable law, the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired, and in such case the parties oblige
themselves to reach the purpose of the invalid provision by a new legally valid
stipulation.
2.6 NOTICES. Any notice herein required or permitted to be given shall be
in writing and may be personally served or sent by first-class certified or
registered mail with return receipt requested, or by first-class express mail,
private overnight or next business day courier (or second business day courier
in the case of international communications), or by telecopy with confirmation
in writing mailed first class, in all cases with charges prepaid, and any such
properly given notice will be deemed given (i) two days after having been mailed
by certified or registered mail with return receipt requested, (ii) two days
after having been delivered to a courier service providing the services
described above and (iii) upon confirmation of a telecopy transmission. For the
purposes hereof, the address of each party hereto (unless notice of a change
thereof is given by such party to each other party as provided in this Section
2.6) shall be as follows:
If to the Holders:
At their addresses set forth in Schedule I or any address supplied
to the Company in writing by any Holder on or after the date of
this Agreement.
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If to the Company:
Anker Coal Group, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: President
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to Sparks or PPK Group:
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to Anker Holding:
▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Tel: ▇▇-▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇-▇▇-▇▇▇-▇▇▇▇
If to the Funds or any Fund:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
First Reserve Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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2.7 NECESSARY MEASURES. The parties shall in a timely manner and as
required from time to time take all measures as may be necessary or appropriate
to cause their affiliates and the Company to implement the provisions of this
Agreement and the transactions contemplated hereby, and to ensure that such
corporations and entities take all such actions as may be necessary to give full
effect to the provisions of this Agreement and to abstain from taking any
actions which would contravene the intent of the provisions of this Agreement.
2.8 RELATIONSHIP OF THE EXISTING STOCKHOLDERS, THE HOLDERS AND THE
COMPANY. This Agreement does not constitute a partnership or joint venture and
nothing contained herein is intended to constitute, nor shall it be construed to
constitute, the Existing Stockholders or the Holders, as joint venturers or as
partners of each other or of the Company. Nothing contained herein shall
constitute, nor shall it be construed to constitute, any Existing Stockholder,
Holder or the Company as an agent of any Stockholder, Holder or the Company.
2.9 GOVERNING LAW. This Agreement and the rights and obligations of the
parties shall be governed by and construed in accordance with the laws of the
State of Delaware.
2.10 REMEDIES. The remedies for breach of contract provided in this
Agreement are non-exclusive, and each of the parties reserves its regular
remedies at law or in equity, including without limitation specific performance,
in the event of any breach of this Agreement by any other party.
2.11 COUNTERPART ORIGINALS. This Agreement may be executed simultaneously
in any number of counterparts each of which shall be deemed an original but all
of which together shall constitute one and the same instrument.
Dated as of the date first written above.
COMPANY
ANKER COAL GROUP, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
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HOLDERS
ROTHSCHILD RECOVERY FUND L.P.
By Rothschild Recovery Associates,
L.L.C., General Partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇, JR.
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇, Jr.
Title: Managing Member
AIG SPECIAL SITUATIONS HOLDING FUND LTD.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
Intrepid Management Company LLC
as Investment Manager
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Portfolio Manager
Pilgrim High Yield Fund
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President/Portfolio Manager
PILGRIM INVESTMENTS INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President/Portfolio Manager
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PROSPECT STREET HIGH INCOME PORTFOLIO
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Portfolio Manager
PRUDENTIAL HIGH YIELD TOTAL RETURN FUND
PRUDENTIAL HIGH YIELD FUND, INC.
PRUDENTIAL DISTRESSED SECURITIES FUND, INC.
By: The Prudential Investment Corporation, as
Investment Advisor
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
THE PRUDENTIAL SERIES FUND, INC.
HIGH YIELD BOND PORTFOLIO
By: The Prudential Insurance Company of America,
as Investment Advisor
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Second Vice President
▇▇▇▇▇▇ Investment Management Inc.,
▇▇▇▇▇▇ Fiduciary Trust Company, and
the ▇▇▇▇▇▇ Advisory Company, Inc.
on behalf of their clients listed on Attachment A
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
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DREYFUS HIGH YIELD STRATEGIES FUND
By: The Dreyfus Corporation, as Investment
Manager
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
EXISTING STOCKHOLDERS
PPK GROUP LIMITED LIABILITY COMPANY
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Manager
ANKER HOLDING B.V.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
FIRST RESERVE CORPORATION
By:
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice-President
AMERICAN GAS & OIL INVESTORS,
LIMITED PARTNERSHIP
By First Reserve Corporation, its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
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AMGO II, LIMITED PARTNERSHIP
By First Reserve Corporation, its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
FIRST RESERVE FUND V, LIMITED PARTNERSHIP
By First Reserve Corporation, its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
FIRST RESERVE FUND V-2, LIMITED PARTNERSHIP
By First Reserve Corporation, its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
FIRST RESERVE FUND VI, LIMITED PARTNERSHIP
By First Reserve Corporation, its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
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FIRST RESERVE FUND VII, LIMITED PARTNERSHIP
By First Reserve Corporation, its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
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ATTACHMENT A
▇▇▇▇▇▇ INVESTMENT MANAGEMENT, INC. ON BEHALF OF:
The ▇▇▇▇▇▇ ▇▇▇▇▇▇ Fund of Boston
▇▇▇▇▇▇ Income Fund
▇▇▇▇▇▇ Equity Income Fund
▇▇▇▇▇▇ Balanced Retirement Fund
▇▇▇▇▇▇ High Yield Advantage Fund
▇▇▇▇▇▇ High Income Convertible and Bond Fund
▇▇▇▇▇▇ Variable Trust-▇▇▇▇▇▇ VT High Yield Fund
▇▇▇▇▇▇ Variable Trust-▇▇▇▇▇▇ VT Global Asset Allocation Fund
▇▇▇▇▇▇ Master Income Trust
▇▇▇▇▇▇ Premier Income Trust
▇▇▇▇▇▇ Master Intermediate Income Trust
▇▇▇▇▇▇ Diversified Income Trust
▇▇▇▇▇▇ Convertible Opportunities and Income Trust
▇▇▇▇▇▇ Asset Allocation Funds-Growth Portfolio
▇▇▇▇▇▇ Asset Allocation Funds-Balanced Portfolio
▇▇▇▇▇▇ Asset Allocation Funds-Conservative Portfolio
▇▇▇▇▇▇ Funds Trust-▇▇▇▇▇▇ High Yield Trust II Travelers Series Fund Inc.
▇▇▇▇▇▇ Diversified Income Portfolio
Lincoln National Global Asset Allocation Fund, Inc.
▇▇▇▇▇▇ Variable Trust-▇▇▇▇▇▇ VT Diversified Income Fund
▇▇▇▇▇▇ FIDUCIARY TRUST COMPANY ON BEHALF OF:
▇▇▇▇▇▇ High Yield Managed Trust
▇▇▇▇▇▇ High Yield Fixed Income Fund, LLC
THE ▇▇▇▇▇▇ ADVISORY COMPANY, INC. ON BEHALF OF:
▇▇▇▇▇▇ Laboratories Annuity Retirement Plan
Strategic Global Fund-High Yield Fixed Income (▇▇▇▇▇▇) Fund
Southern Farm Bureau Annuity Insurance Company
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Exhibit A
ACCESSION AGREEMENT
THIS ACCESSION AGREEMENT is made as of this ____ day of ____, 199_/200_
by and among _____________ (the "New Stockholder"), and the parties (the
"Current Parties") to that certain Investor Agreement dated as of October __,
1999 (the "Investor Agreement") by and among Anker Coal Group, Inc., a Delaware
corporation (the "Company"), and the Holders and Existing Stockholders named
therein. Capitalized terms not otherwise defined shall have the meaning
attributed to them in the Investor Agreement.
W I T N E S S E T H:
WHEREAS, the Current Parties entered into the Investor Agreement for the
purpose of governing the relations among the Company, the Existing Stockholders
and the Holders, as holders of Warrant Shares;
WHEREAS, it is a condition to any acquisition of Warrant Shares that the
Holder be or become a party to the Investor Agreement; and
WHEREAS, the New Stockholder is desirous of becoming a Holder of Warrant
Shares and desires to enter into the Investor Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual promises
and covenants of the parties, the parties hereby represent and agree as follows:
1. The New Stockholder acknowledges having read and understood the
Investor Agreement.
2. The New Stockholder shall become a party to, shall be bound by all of
the obligations of a Holder of Warrant Shares pursuant to and, except as
expressly provided in the Investor Agreement, shall have the benefit of all of
the terms and conditions set forth in the Investor Agreement to the same extent
as if the New Stockholder were an original party thereto in the capacity of a
Holder of Warrant Shares.
3. This Accession Agreement shall be attached to and become a part of the
Investor Agreement.
4. This Accession Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware without giving effect to the
choice of law principles thereof.
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IN WITNESS WHEREOF, the New Stockholder has executed or caused its duly
authorized representative to execute this Accession Agreement as of the day and
year first above written.
By:
------------------------------------
Name:
Title:
Agreed to by the Company on its own behalf and on behalf of the other
Current Parties pursuant to Section 1.1 of the Investor Agreement.
ANKER COAL GROUP, INC.
By:
------------------------------------
Name:
Title:
A-2
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Exhibit B
ACCESSION AGREEMENT
THIS ACCESSION AGREEMENT is made as of this ____ day of ____, 199_/200_
by and among _____________ (the "New Stockholder"), and the parties (the
"Current Parties") to that certain Common Stock Registration Rights Agreement
dated as of October __, 1999 (the "Common Stock Registration Rights Agreement")
by and among Anker Coal Group, Inc., a Delaware corporation (the "Company"), and
the Holders named therein. Capitalized terms not otherwise defined shall have
the meaning attributed to them in the Common Stock Registration Rights
Agreement.
W I T N E S S E T H:
WHEREAS, the Current Parties entered into the Common Stock Registration
Rights Agreement for the purpose of governing the rights of the Holders as
Holders of Warrant Shares to registration of the Warrant Shares under the
Securities Act of 1933;
WHEREAS, it is a condition to any acquisition of Warrant Shares that the
Holder be or become a party to the Common Stock Registration Rights Agreement;
and
WHEREAS, the New Stockholder is desirous of becoming a Holder of Warrant
Shares and desires to enter into the Common Stock Registration Rights Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual promises
and covenants of the parties, the parties hereby represent and agree as follows:
1. The New Stockholder acknowledges having read and understood the Common
Stock Registration Rights Agreement.
2. The New Stockholder shall become a party to, shall be bound by all of
the obligations of a Holder of Warrant Shares pursuant to and, except as
expressly provided in the Common Stock Registration Rights Agreement, shall have
the benefit of all of the terms and conditions set forth in the Common Stock
Registration Rights Agreement to the same extent as if the New Stockholder were
an original party thereto in the capacity of a Holder of Warrant Shares.
3. This Accession Agreement shall be attached to and become a part of the
Common Stock Registration Rights Agreement.
4. This Accession Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York without giving effect to the
choice of law principles thereof.
17
Dated as of the date first written above.
COMPANY
ANKER COAL GROUP, INC.
By:
------------------------------------
Name:
Title: Director
B-2
18
HOLDERS
ROTHSCHILD RECOVERY FUND L.P.
By: Rothschild Recovery Associates, L.L.C.,
General Partner
By:
---------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇, Jr.
Title: Managing Member
AIG SPECIAL SITUATIONS HOLDING FUND LTD.
By:
---------------------------------------
Name:
Title: Director
Intrepid Management Company LLC
as Investment Manager
By:
-------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Portfolio Manager
Pilgrim High Yield Fund
By:
---------------------------------------
Name:
Title:
PILGRIM INVESTMENTS INC.
By:
---------------------------------------
Name:
Title:
▇-▇
▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ HIGH INCOME
PORTFOLIO
By:
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Portfolio Manager
PRUDENTIAL HIGH YIELD TOTAL RETURN FUND
PRUDENTIAL HIGH YIELD FUND, INC.
PRUDENTIAL DISTRESSED SECURITIES FUND, INC.
By: The Prudential Investment Corporation,
as Investment Advisor
By:
--------------------------------------
Name:
Title:
THE PRUDENTIAL SERIES FUND, INC. HIGH YIELD
BOND PORTFOLIO
By: The Prudential Insurance Company of
America, as Investment Advisor
By:
--------------------------------------
Name:
Title:
▇▇▇▇▇▇ Investment Management Inc., ▇▇▇▇▇▇
Fiduciary Trust Company, and the ▇▇▇▇▇▇
Advisory Company, Inc. on behalf of their
clients listed on Attachment A
By:
--------------------------------------
Name:
Title:
▇-▇
▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ FUND
By: The Dreyfus Corporation, as Investment
Manager
By:
--------------------------------------
Name:
Title:
EXISTING STOCKHOLDERS
PPK GROUP LIMITED LIABILITY COMPANY
By:
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Manager
ANKER HOLDING B.V.
By:
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
FIRST RESERVE CORPORATION
By:
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice-President
AMERICAN GAS & OIL INVESTORS, LIMITED
PARTNERSHIP
By First Reserve Corporation, its general
partner
By:
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice-President
B-5
21
AMGO II, LIMITED PARTNERSHIP
By First Reserve Corporation, its general
partner
By:
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice-President
FIRST RESERVE FUND V, LIMITED PARTNERSHIP
By First Reserve Corporation, its general
partner
By:
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice-President
FIRST RESERVE FUND V-2, LIMITED PARTNERSHIP
By First Reserve Corporation, its
general partner
By:
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice-President
FIRST RESERVE FUND VI, LIMITED
PARTNERSHIP
By First Reserve Corporation, its general
partner
By:
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice-President
B-6
22
FIRST RESERVE FUND VII, LIMITED PARTNERSHIP
By First Reserve Corporation, its general
partner
By:
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice-President
▇-▇
▇▇
▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇ INVESTMENT MANAGEMENT, INC. ON BEHALF OF:
The ▇▇▇▇▇▇ ▇▇▇▇▇▇ Fund of Boston
▇▇▇▇▇▇ Income Fund
▇▇▇▇▇▇ Equity Income Fund
▇▇▇▇▇▇ Balanced Retirement Fund
▇▇▇▇▇▇ High Yield Advantage Fund
▇▇▇▇▇▇ High Income Convertible and Bond Fund
▇▇▇▇▇▇ Variable Trust-▇▇▇▇▇▇ VT High Yield Fund
▇▇▇▇▇▇ Variable Trust-▇▇▇▇▇▇ VT Global Asset Allocation Fund
▇▇▇▇▇▇ Master Income Trust
▇▇▇▇▇▇ Premier Income Trust
▇▇▇▇▇▇ Master Intermediate Income Trust
▇▇▇▇▇▇ Diversified Income Trust
▇▇▇▇▇▇ Convertible Opportunities and Income Trust
▇▇▇▇▇▇ Asset Allocation Funds-Growth Portfolio
▇▇▇▇▇▇ Asset Allocation Funds-Balanced Portfolio
▇▇▇▇▇▇ Asset Allocation Funds-Conservative Portfolio
▇▇▇▇▇▇ Funds Trust-▇▇▇▇▇▇ High Yield Trust II Travelers Series Fund Inc.
▇▇▇▇▇▇ Diversified Income Portfolio
Lincoln National Global Asset Allocation Fund, Inc.
▇▇▇▇▇▇ Variable Trust-▇▇▇▇▇▇ VT Diversified Income Fund
▇▇▇▇▇▇ FIDUCIARY TRUST COMPANY ON BEHALF OF:
▇▇▇▇▇▇ High Yield Managed Trust
▇▇▇▇▇▇ High Yield Fixed Income Fund, LLC
THE ▇▇▇▇▇▇ ADVISORY COMPANY, INC. ON BEHALF OF:
▇▇▇▇▇▇ Laboratories Annuity Retirement Plan
Strategic Global Fund-High Yield Fixed Income (▇▇▇▇▇▇) Fund
Southern Farm Bureau Annuity Insurance Company
B-8
24
SCHEDULE I
HOLDERS
Rothschild Recovery Fund, L.P.
c/o Rothschild, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
AIG Special Situations Holding Fund Ltd.
c/o Intrepid Management Company LLC
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Pilgrim High Yield Fund
ML CLO XV Pilgrim America
ML CBO XX Pilgrim America
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Prospect Street High Income Portfolio Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
The ▇▇▇▇▇▇ ▇▇▇▇▇▇ Fund of Boston
▇▇▇▇▇▇ Income Fund
▇▇▇▇▇▇ Equity Income Fund
▇▇▇▇▇▇ Balanced Retirement Fund
▇▇▇▇▇▇ High Yield Advantage Fund
▇▇▇▇▇▇ High Income Convertible and Bond Fund
▇▇▇▇▇▇ Variable Trust - ▇▇▇▇▇▇ VT High Yield Fund
▇▇▇▇▇▇ Variable Trust - ▇▇▇▇▇▇ VT Global Asset Allocation Fund
▇▇▇▇▇▇ Master Income Trust
▇▇▇▇▇▇ Premier Income Trust
▇▇▇▇▇▇ Master Intermediate Income Trust
▇▇▇▇▇▇ Diversified Income Trust
B-9
25
▇▇▇▇▇▇ Convertible Opportunities and Income Trust
▇▇▇▇▇▇ Asset Allocation Funds - Growth Portfolio
▇▇▇▇▇▇ Asset Allocation Funds - Balanced Portfolio
▇▇▇▇▇▇ Asset Allocation Funds - Conservative Portfolio
▇▇▇▇▇▇ Funds Trust - ▇▇▇▇▇▇ High Yield Trust II
Travelers Series Fund Inc. - ▇▇▇▇▇▇ Diversified Income Portfolio
Lincoln National Global Asset Allocation Fund, Inc.
▇▇▇▇▇▇ Variable Trust - ▇▇▇▇▇▇ VT Diversified Income Fund
▇▇▇▇▇▇ High Yield Managed Trust
▇▇▇▇▇▇ High Yield Fixed Income Fund, LLC
▇▇▇▇▇▇ Laboratories Annuity Retirement Plan
Strategic Global Fund - High Yield Fixed Income (▇▇▇▇▇▇) Fund
Southern Farm Bureau Annuity Insurance Company
▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Prudential High Yield Total Return Fund, Inc.
Prudential High Yield Fund, Inc.
Prudential Distressed Securities Fund, Inc.
The Prudential Series Fund, Inc. High Yield Bond Portfolio
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Center Building No. 2, 3rd Floor
Mailstop ▇▇. ▇▇-▇▇-▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇-▇▇
▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Strategies Fund
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
B-11