Exhibit 10.4
AMERICAN METALS & COAL INTERNATIONAL, INC. FIRST RESERVE CORPORATION
000 XXXXXXXXX XXXX, 0XX XXXXX XXX XXXXXXXXX XXXXX
XXXXXXXXX, XX 00000 XXXXXXXXX, XX 00000
October 25, 2005
VIA FACSIMILE
Alpha Natural Resources, Inc.
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, President
Facsimile No.: (000) 000-0000
Re: Amendment to Section 3.1 of Stockholder Agreement
Dear Xx. Xxxxxxx:
We refer you to that certain Stockholder Agreement dated as of February 11,
2005 by and among Alpha Natural Resources, Inc., a Delaware corporation (the "
Company"), the "FRC Parties" (as defined therein), the "AMCI Parties" (as
defined therein) Madison Capital Funding LLC, a Delaware limited liability
company, and the "Employee Stockholders" (as defined therein) (the "Agreement
"), as heretofore amended.
By our signatures below, Xxxx X. Xxxxx in his capacity as the AMCI
Representative pursuant to Section 6.12 of the Agreement, and First Reserve Fund
IX, L.P. in its capacity as the FRC Representative pursuant to Section 6.13 of
the Agreement, hereby amend Section 2.2(b) of the Agreement as follows:
Solely in connection with the offering of the Company's Common Stock
pursuant to Registration No. 333-129030 (the "Secondary Offering"),
notwithstanding the provisions of Section 2.2(b) to the contrary, if the
managing underwriter(s) determine in good faith that marketing factors require a
limitation of the number of securities to be underwritten in the Secondary
Offering, the Company shall so advise all Holders of Registrable Securities that
would otherwise be registered and underwritten pursuant thereto, and the
managing underwriter(s) may exclude shares of the Registrable Securities as
necessary from the registration and the underwriting, with the number of shares
to be included in the registration and the underwriting allocated in the
following manner:
First, to Madison in respect of all Registrable Securities as to which
Madison has sought to be included in the Secondary Offering;
Second, to each of the Employee Stockholders in respect of all Registrable
Securities as to which the Employee Stockholders have sought to be included
in the Secondary Offering, up to a maximum of gross proceeds from the offer
and sale thereof of $10
million, on a pro rata basis, based on the total number of Registrable
Securities then held by each such Employee Stockholder;
Third, with respect to the next 13,400,000 Registrable Securities,
7,700,000 Registrable Securities to the FRC Parties and 5,700,000
Registrable Shares to the AMCI Parties; provided, however, that if the
number of securities to be underwritten is less than 13,400,000 after
giving effect to the first and second allocations, to the FRC Parties and
the AMCI Parties on a pro rata basis, based on the total number of
Registrable Securities then held by each such Investor; and
Fourth, to the FRC Parties and the AMCI Parties on a pro rata basis, based
on the total number of Registrable Securities then held by each such
Investor.
[SIGNATURE PAGE FOLLOWS.]
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This amendment is made pursuant to Section 3.3(a) of the Agreement and is
effective from and after the date of this letter. This amendment may be executed
in counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument, and facsimile signatures
to this amendment shall be valid for all purposes.
THE AMCI PARTIES
By: /s/ Xxxx X. Xxxxx
--------------------------------------
Xxxx X. Xxxxx, the AMCI Representative
THE FRC PARTIES
By: First Reserve Fund IX, L.P., the FRC Representative
By: First Reserve GP IX, L.P., its General Partner
By: First Reserve GP IX, Inc., its General Partner
By: /s/ Xxxx X. Xxxxxxx
--------------------------------------
Xxxx X. Xxxxxxx, Managing Director
cc: Xxxxxx X. Xxxxxxx, facsimile no.: (000) 000-0000
Xxxxxx X. Xxxxxxx, facsimile no.: (000) 000-0000
Xxxxx X. Xxxxxxxxx, facsimile no.: (000) 000-0000
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