SUPPORT AGREEMENT
Exhibit
10.3
SUPPORT
AGREEMENT, dated as of April 2, 2008 (this “Agreement”), among Patriot
Coal Corporation, a Delaware corporation (“Parent”), and the stockholder
whose name appears on the signature page of this Agreement (the “Stockholder”).
W
I T N E S S E T H:
WHEREAS,
Magnum Coal Company, a Delaware corporation (the “Company”), Parent, Colt Merger
Corporation, a Delaware corporation and wholly-owned subsidiary of Parent
(“Merger Subsidiary”)
and ArcLight Energy Partners Fund I, L.P. and ArcLight Energy Partners Fund II,
L.P., acting jointly, as stockholder representative (the “Stockholder Representative”),
have entered into an Agreement and Plan of Merger (the “Merger Agreement”)
concurrently with the execution and delivery of this Agreement, pursuant to
which, among other things, Merger Subsidiary will be merged with and into the
Company (capitalized terms used in this Agreement but not defined herein shall
have the meanings ascribed to them in the Merger Agreement);
WHEREAS,
as of the date hereof, the Stockholder owns beneficially and of record the
number of shares set forth on Exhibit A hereto of the common stock, par value
$0.01 per share, of the Company (the “Company Stock”) (all such
Company Stock and any shares of Company Stock of which ownership of record or
the power to vote is hereafter acquired by the Stockholder prior to the
termination of this Agreement being referred to herein as the “Shares”); and
WHEREAS,
as a condition to the willingness of Parent to enter into the Merger Agreement,
Parent has requested that the Stockholder agree to enter into and perform its
obligations under this Agreement (including executing, upon the terms and
subject to the conditions hereof, a written consent in the form of Exhibit B
hereto (the “Written
Consent”)), and, in order to induce Parent to enter into the Merger
Agreement, the Stockholder has so agreed.
NOW,
THEREFORE, in consideration of the premises and of the mutual agreements and
covenants set forth herein and in the Merger Agreement, and intending to be
legally bound hereby, the parties hereto hereby agree as follows:
ARTICLE
1
Voting
Agreement
Section
1.01. Agreement to Consent to and
Support the Merger. (a) The Stockholder, solely in the
Stockholder’s capacity as a stockholder of the Company, hereby agrees (i) to
execute and deliver to Parent, immediately after the execution of the Merger
Agreement, the Written Consent (and agrees not to revoke or otherwise withdraw
such
Stockholder’s approval and adoption of the actions described in such Written
Consent); (ii) if requested by Parent, to vote or exercise its right to consent
with respect to all Shares that the Stockholder is entitled to vote at the time
of any vote or action by written consent to approve and adopt the Merger
Agreement, the Merger and all agreements related to the Merger and any actions
related thereto at any meeting of the stockholders of the Company, and at any
adjournment thereof, at which such Merger Agreement and other related
agreements, or such other actions, are submitted for the consideration and vote
of the stockholders of the Company; and (iii) that it will not vote any Shares
in favor of, or consent to, and will vote against and not consent to, the
approval of any (A) Acquisition Proposal (other than the Merger) or any action
or transaction in furtherance thereof or (B) corporate action the consummation
of which would frustrate the purposes, or prevent or delay the consummation, of
the transactions contemplated by the Merger Agreement.
(b) Effective
upon the entry into the Merger Agreement by the parties thereto:
(i) The
Stockholder hereby confirms the appointment, pursuant to Section 11.05 of the
Merger Agreement, of ArcLight Energy Partners Fund I, L.P. and ArcLight Energy
Partners Fund II, L.P., acting jointly, as such Stockholder’s true and lawful
agent and attorney-in-fact as the “Stockholder Representative” under the Merger
Agreement and the Escrow Agreement, and agrees to abide by and be bound by the
terms of Section 11.05 of the Merger Agreement, which is incorporated herein by
this reference. The Stockholder hereby acknowledges that the
Stockholder Representative may be removed or replaced only in accordance with
the provisions of Section 11.05 of the Merger Agreement. The
Stockholder hereby agrees that the Stockholder Representative shall not be
liable for any act done or omitted as Stockholder Representative under the
Merger Agreement or the Escrow Agreement, other than in the case of gross
negligence, bad faith or willful misconduct.
(ii) The
Stockholder hereby acknowledges, and agrees to be bound by, the provisions of
the Merger Agreement with respect to (A) the conversion of shares of Company
Stock (including Company Restricted Stock and the shares of Company Stock to be
issued upon conversion of the Company Convertible Debt Notes immediately prior
to the Effective Time) pursuant to the Merger and the payment of the Merger
Consideration (including the delivery of such Stockholder’s Pro Rata Share of
the Escrow Shares to the Escrow Agent to be held in accordance with the Merger
Agreement and the Escrow Agreement) set forth in Article 2 of the Merger
Agreement, (B) the indemnification obligations of the Stockholder (to the extent
such Stockholder is a Designated Stockholder) set forth in Article 11 of the
Merger Agreement (including, without limitation, the related provisions,
procedures and limitations set forth in such Article 11), (C) the
indemnification rights of the Stockholder set forth in Article 11 of the Merger
Agreement (including, without limitation, the related provisions, procedures,
limitations and disclaimers set forth in such Article 11), (D) the disposition
of the
2
Escrow
Shares set forth in Article 2 of the Merger Agreement and in the Escrow
Agreement, (E) the limitations with respect to the ability of the Stockholder to
bring claims against Parent set forth in Section 10.02 of the Merger Agreement
and (F) Article 12 of the Merger Agreement to the extent relating to the
foregoing provisions of the Merger Agreement.
(iii) Parent
hereby acknowledges that the Stockholder shall be an express third party
beneficiary of the provisions of the Merger Agreement, as set forth therein,
subject to the limitations and restrictions set forth therein.
Section
1.02. Irrevocable
Proxy. The Stockholder hereby revokes any and all previous
proxies granted with respect to the Shares. By entering into this
Agreement, the Stockholder hereby irrevocably (but subject to termination in
accordance with Section 4.04 hereof) grants a proxy appointing Parent as the
Stockholder’s attorney-in-fact and proxy, with full power of substitution, for
and in the Stockholder’s name, to vote, express consent or dissent, or otherwise
to utilize such voting power, in each case, in the manner contemplated by
Section 1.01 above (but only in such manner) as Parent or its proxy or
substitute shall, in Parent’s sole discretion, deem proper with respect to the
Shares. The Stockholder hereby acknowledges and agrees that such
proxy is coupled with an interest, constitutes, among other things, an
inducement for Parent to enter into the Merger Agreement, is irrevocable (other
than as provided in Section 4.04) and shall not be terminated by operation of
law or otherwise upon the occurrence of any event (other than as provided in
Section 4.04) and that, so long as this proxy is in effect, no subsequent
proxies with respect to the Shares shall be given (and if given shall not be
effective).
Section
1.03. Other
Capacities. If the Stockholder is an officer or director of
the Company, nothing in this Agreement shall be deemed to apply to, or to limit
in any manner, the discretion of the Stockholder with respect to any action to
be taken (or omitted) by such Stockholder in his or her fiduciary capacity as a
director or officer of the Company; provided that it is agreed
and understood by the parties to this Agreement that the obligations, covenants
and agreements of the Stockholder contained in this Agreement are separate and
apart from such Stockholder’s fiduciary duties as a director or officer of the
Company and no fiduciary obligations that the Stockholder may have as a director
or officer of the Company shall countermand the obligations, covenants and
agreements of the Stockholder, in his or her capacity as a stockholder of the
Company, contained in this Agreement.
ARTICLE
2
Representations
and Warranties of the Stockholder
The
Stockholder hereby represents, warrants and covenants to Parent as
follows:
Section
2.01. Organization;
Authorization. If the Stockholder is not a natural person, the
Stockholder is a Person that has been duly organized, is validly existing and,
3
to the
extent applicable, is in good standing under the laws of its jurisdiction of
organization. The execution, delivery and performance by the
Stockholder of this Agreement and the consummation by the Stockholder of the
transactions contemplated hereby are within the corporate (or other entity) or
individual powers of the Stockholder and have been duly authorized by all
necessary corporate (or other entity) action. If this Agreement is
being executed in a representative or fiduciary capacity, the person signing
this Agreement has full power and authority to enter into and perform this
Agreement. This Agreement constitutes a valid and binding Agreement
of the Stockholder.
Section
2.02. No Conflict; Required Filings and
Consents. (a) The execution and delivery of this
Agreement by the Stockholder does not, and the performance of this Agreement by
the Stockholder will not: (i) conflict with or result in a breach of any
organizational documents of the Stockholder, (ii) conflict with or violate
any law, rule, regulation, order, judgment or decree applicable to the
Stockholder or by which it or any of the Stockholder’s properties or assets is
bound or affected or (iii) require any consent or other action by any
Person under, result in any breach of, constitute a default (or an event that
with notice or lapse of time or both would become a default) under, give to
another party any rights of termination, amendment, acceleration or cancellation
of, or result in the creation of a Lien on any of the property or assets of the
Stockholder, including (without limitation) the Shares, pursuant to, any note,
bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which the Stockholder is a party
or by which the Stockholder or any of the Stockholder’s properties or assets is
bound or affected, with such exceptions, in the case of each of clauses (ii) and
(iii), as would not, individually or in the aggregate, reasonably be expected to
prevent or materially delay or impair the performance by the Stockholder of the
Stockholder’s obligations under this Agreement (a “Stockholder
MAE”). There is no beneficiary or holder of a voting trust
certificate or other interest of any trust of which the Stockholder is a trustee
whose consent is required for either the execution and delivery of this
Agreement or the consummation by the Stockholder of the transactions
contemplated by this Agreement.
(b) The
execution and delivery of this Agreement by the Stockholder does not, and the
performance of this Agreement by the Stockholder will not, require any consent,
approval, authorization or permit of, or filing with or notification to, any
Governmental Authority. The Stockholder does not have any other
understanding in effect with respect to the voting or transfer of any Shares
except for the Magnum Coal Company Stockholders Agreement dated as of March 21,
2006 among the Company, the Stockholder and the other parties thereto (the
“Magnum Stockholders
Agreement”).
Section
2.03. Litigation. As
of the date hereof, there is no private or governmental action, suit,
proceeding, claim, arbitration or investigation pending before any agency, court
or tribunal (foreign or domestic) or, to the knowledge of the Stockholder,
threatened against the Stockholder, any of its properties or, if the Stockholder
is an entity, any of its officers, directors, employees, partners or trustees in
their capacities as such, that, individually or in the aggregate, would
reasonably be
4
expected
to have a Stockholder MAE. As of the date hereof, there is no
judgment, decree or order against the Stockholder or, if the Stockholder is an
entity, any of its officers, directors, employees, partners or trustees in their
capacities as such, that would prevent, enjoin, alter or materially delay any of
the transactions contemplated by this Agreement, or that would reasonably be
expected to have a Stockholder MAE.
Section
2.04. Title to
Shares. The Stockholder is the
record and beneficial owner of the Shares, free and clear of any Lien (other
than Liens created by the Magnum Stockholders Agreement) and free of any other
limitation or restriction that would prevent the Stockholder from satisfying its
obligations pursuant to this Agreement. Immediately prior to the
Effective Time, the Stockholder will have good and valid title to the Shares
free and clear of any Lien (other than Liens created by the Magnum Stockholders
Agreement). As of the date hereof, the Shares described on Exhibit A
hereto are the only shares of the Company Stock owned of record or beneficially
by the Stockholder on the date of this Agreement.
Section
2.05. Written Consent; Informed
Consent. Upon its execution and delivery by the Stockholder
pursuant to Section 1.01, the Written Consent shall constitute valid and
effective approval by the Stockholder of the Merger Agreement and the Merger,
and no other vote, consent or approval by the Stockholder shall be necessary by
the Stockholder in its capacity as a stockholder of the Company in connection
with the consummation of the Merger. The Stockholder has received and
reviewed a copy of this Agreement and the form of Merger Agreement and the
exhibits thereto and has had an opportunity to obtain the advice of counsel
prior to executing this Agreement.
Section
2.06. No Community Property
Rights. If the Stockholder is an individual and has a spouse,
such spouse is not entitled to any rights under any community property statute
or other Applicable Law or agreement with respect to the Shares which would
adversely affect the covenants made by the Stockholder pursuant to this
Agreement or the conversion of such Shares into Merger Consideration pursuant to
the terms of the Merger Agreement.
ARTICLE
3
Covenants
of the Stockholder
Section
3.01. No Proxies for or Encumbrances on
Shares. Except as set forth in the last sentence of this
Section 3.01, the Stockholder shall not, without the prior written consent of
Parent, directly or indirectly, (i) except pursuant to the Merger
Agreement, sell, convert, assign, encumber, transfer, pledge or otherwise
dispose of any of the Stockholder’s Shares or enter into any contract, option or
other arrangement or undertaking with respect to the direct or indirect
acquisition or sale, conversion, assignment, transfer, encumbrance or other
disposition of any Shares or (ii) deposit any Shares into a voting trust or
enter into a voting agreement or arrangement or grant any proxy with respect to
any Shares (other than as contemplated hereunder).
5
Notwithstanding
the foregoing, the consent of Parent shall not be required in the event that the
Stockholder transfers all or any portion of the Shares to an Affiliate of the
Stockholder, with such transfer conditioned upon such Affiliate entering into an
agreement in the form hereof.
Section
3.02. Other
Offers. The Stockholder shall not, and shall cause its
Representatives acting on behalf of the Stockholder or the Company not to, take
any action, directly or indirectly, that is prohibited by Section 6.03(a) of the
Merger Agreement. The Stockholder shall, and shall cause its
Representatives to, cease immediately and cause to be terminated any and all
existing activities, discussions or negotiations, if any, with any Third Party
or any Third Party’s Representatives conducted prior to the date hereof with
respect to any Acquisition Proposal.
Section
3.03. Appraisal
Rights. The Stockholder agrees not to exercise any rights
(including under Section 262 of Delaware Law) to demand appraisal of any Shares
which may arise with respect to the Merger.
Section
3.04. Release by
Stockholder.
(a) Effective
as of the Effective Time, in consideration of Parent’s performance under the
Merger Agreement and payments to be made thereunder, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the Stockholder, the Stockholder, for himself, herself or itself
(as applicable), and each of his, her or its (as applicable) heirs, executors,
Affiliates, successors, and assigns (collectively, the “Stockholder Releasing
Parties”) after taking into account the terms and conditions of the
Merger and the Transaction Documents, and the transactions contemplated thereby,
including the terms of the Company Convertible Debt, the Parent Financing and
the Parent Financing Commitment Letter, among other things, hereby forever fully
and irrevocably releases Parent, Merger Subsidiary, their respective Affiliates,
the Company and its Subsidiaries, and their respective current and former
directors, officers, managers, employees, agents, advisors and other
representatives in their capacities as such (collectively, the “Stockholder Released
Parties”), from any and all claims, demands, and causes of action of
every kind and nature, whether known or unknown, suspected or unsuspected, to
the extent relating to actions, events or circumstances occurring or failing to
occur on or prior to the Effective Time (including any and all claims,
liabilities, demands or causes of action relating to or arising out of federal
or state statutes (including securities laws) or common law, claims for breach
of contract, claims relating to the Company Convertible Debt, breach of
fiduciary duty, misrepresentation, defamation, infliction of emotional distress
or any other tort under the common law of any state or claims for damages,
costs, expenses, and attorneys’, brokers’ and accountants’ fees and expenses)
(collectively, the “Stockholder
Released Claims”); provided that the Stockholder
is not releasing any claim or right arising under (i) the Merger Agreement, (ii)
any indemnification agreement in favor of any Stockholder Releasing Parties
(including any indemnification provisions contained in the Company’s
certification of incorporation or by-laws) set forth on Section 4.05(c) of
6
the
Company Disclosure Schedule, (iii) any claim under the Company’s directors and
officers insurance policies and the Company’s fiduciary duty liability insurance
policies, (iv) if the Stockholder is also an employee of the Company, any
employment agreement or arrangement (including any employee benefit plan)
applicable to the Stockholder that is set forth on Section 4.16 of the Company
Disclosure Schedule and Applicable Law or (v) any claim, demand or cause of
action such Stockholder Releasing Party may have against Parent or any of its
Affiliates (other than the Company and its Subsidiaries) that is not related to
the transactions contemplated by the Merger Agreement or the Company Convertible
Debt NPA.
(b) The
Stockholder represents and warrants that he, she or it (as applicable) has not
sold, assigned or otherwise transferred, and will not sell, assign or otherwise
transfer, any Stockholder Released Claims. Effective as of the
Effective Time, the Stockholder, on behalf of himself, herself or itself (as
applicable) and the Stockholder Releasing Parties, hereby irrevocably agrees to
refrain from directly or indirectly asserting any claim or demand or commencing
(or causing to be commenced) any suit, action, or proceeding of any kind, in any
court or before any tribunal, against any Stockholder Released Party based upon
any Stockholder Released Claim.
Section
3.05. Confidentiality. From
the date hereof until the second anniversary of Closing, the Stockholder agrees
that the Stockholder and its Representatives acting on its behalf shall hold in
confidence and not disclose to any Person any information (irrespective of the
form of information and including, without limitation, all analyses,
compilations, data, studies, notes, translations, memoranda and other documents
prepared by the Stockholder or its Representatives containing or based in whole
or in part on any such information) concerning the Company or its Subsidiaries
or Parent or its Subsidiaries in possession of the Stockholder or its
Representatives as of the Closing, except (A) as may be compelled in a judicial
or administrative proceeding or as otherwise required by Applicable Law or the
rules of any applicable insurance commission or similar organization, (B) to the
extent the same was publicly known or subsequently becomes publicly known
through no act or omission by the Stockholder or its Representatives, (C) to the
extent relating to information concerning the Company or its Subsidiaries, to
the Stockholder’s officers, employees, directors, [stockholders], members,
limited partners, and trustees,
and, on a “need to know basis” agents, legal, tax and accounting advisers, in
each case, it being understood that such Person to whom such disclosure is made
will be informed of the confidential nature of such information and instructed
to keep such information confidential and the Stockholder shall be responsible
for any breach of confidentiality by any such Person.
7
Section
3.06. Further
Assurances. The Stockholder agrees to execute and deliver, or
cause to be executed and delivered, all further documents and instruments and to
take, or cause to be taken, all actions and to do, or cause to be done, all
things necessary, proper or advisable under applicable laws and regulations, to
consummate and make effective the transactions contemplated by this Agreement,
including to vest in Parent the power to carry out the provisions of Article
1.
Section
3.07. Stockholder
Only. Notwithstanding anything to the contrary contained
herein, Parent agrees and acknowledges that (i) the Stockholder is entering into
this Agreement in its individual capacity and (ii) none of the covenants or
other agreements contained herein or provisions hereof shall in any way bind any
Affiliates of the Stockholder (other than the matters contemplated by Section
3.04 and Section 3.05, and in respect thereof, only as set forth
therein). Parent agrees and acknowledges that this Section 3.07 is an
integral part of the transactions contemplated hereby and the Stockholder would
not enter into this Agreement without this Section 3.07.
Section
3.08. Certain
Transactions. The Stockholder agrees that until the Effective
Time, it shall not directly or indirectly, enter into any contract, option or
other arrangement or understanding with respect to any sale, transfer,
assignment, lending or similar disposition of any shares of Parent Stock payable
to it as Merger Consideration, including pursuant to any short sale or any other
hedging or other derivative transaction that has the effect of materially
changing the economic benefits or risks of ownership of any shares of Parent
Stock.
Section
3.09. HSR Filing.
(a) [If
compliance by the Stockholder with the applicable requirements of the HSR Act is
required in connection with the issuance of Parent Stock to such Stockholder
pursuant to the transactions contemplated by the Merger Agreement,] The
Stockholder and Parent shall each (and the Stockholder shall cause its ultimate
parent entity (as such term is defined in 16 C.F.R. Section 801.1), if any, to)
use its commercially reasonable efforts to take, or cause to be taken, all
actions and to do, or cause to be done, all things necessary, proper or
advisable under Applicable Law relating to the issuance of Parent Stock to such
Stockholder pursuant to the transactions contemplated by the Merger Agreement,
including (i) preparing and filing as promptly as practicable with any
Governmental Authority all documentation to effect all necessary filings,
notices, petitions, statements, registrations, submissions of information,
applications and other documents, in each case, relating to the application of
the HSR Act to the issuance of Parent Stock to such Stockholder and (ii)
obtaining and maintaining all approvals, consents, registrations, permits,
authorizations and other confirmations required to be
8
obtained
from any Governmental Authority in connection with the HSR Act that are
necessary, proper or advisable in connection with the issuance of Parent Stock
to such Stockholder; provided that the parties
hereto understand and agree that neither the commercially reasonable efforts of
the Stockholder, its ultimate parent entity or Parent nor any other obligation
of the Stockholder, its ultimate parent entity or Parent under this Agreement
shall be deemed to include (i) entering into any settlement, undertaking,
consent decree, stipulation or agreement with any Governmental Authority in
connection with the transactions contemplated hereby or (ii) divesting or
otherwise holding separate (including by establishing a trust or otherwise), or
taking any other action (or otherwise agreeing to do any of the foregoing) with
respect to any of the Stockholder, its ultimate parent entity, Parent or their
respective Affiliates’ businesses, assets or properties.
(b) In
furtherance and not in limitation of the foregoing, each of the Stockholder (or
its ultimate parent entity) and Parent shall [(if compliance with the HSR Act is
required pursuant to Section 3.09(a))] make an appropriate filing of a
Notification and Report Form pursuant to the HSR Act with respect to the
transactions contemplated hereby as promptly as practicable and in any event
within 20 Business Days of the date hereof and each shall use its commercially
reasonable efforts to supply as promptly as practicable any additional
information and documentary material that may be requested pursuant to the HSR
Act. The Stockholder shall pay the filing fee under the HSR Act with
respect to the acquisition of Parent Stock by the Stockholder.
Section
3.10. NYSE Cooperation. From the date hereof
until the Effective Time, the Stockholder shall use its commercially reasonable
efforts to cooperate with Parent in connection with any discussions between
Parent and the New York Stock Exchange regarding the independence of any
nominees to Parent’s Board of Directors selected by the Stockholder
Representative pursuant to the Voting Agreement.
ARTICLE
4
General
Provisions
Section
4.01. Notices. All
notices, requests and other communications to any party hereunder shall be in
writing (including facsimile transmission but not electronic mail) and shall be
given,
9
(a)
if to
Parent, to:
Patriot
Coal Corporation
00000
Xxxxx Xxxxxxxxx, Xxxxx 000
Xx. Xxxxx,
Xxxxxxxx 00000
Attention: Xxxxxx
X. Xxxx
Facsimile
No.: (000) 000-0000
with a
copy to:
Xxxxx Xxxx
& Xxxxxxxx
000
Xxxxxxxxx Xxxxxx
Xxx Xxxx,
XX 00000
Attention: Xxxxxxx
X. Xxxxxx
Facsimile
No.: (000) 000-0000
(b)
if to the
Stockholder, to the Stockholder Representative as follows:
ArcLight
Energy Partners Fund I, L.P.
ArcLight
Energy Partners Fund II, L.P.
c/o
ArcLight Capital Partners, LLC
000 Xxxx
00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx,
XX 00000
Attention:
Xxxx X. Xxxxxx
Senior
Partner
Facsimile
No.: 000-000-0000
with a
copy to:
ArcLight
Energy Partners Fund I, L.P.
ArcLight
Energy Partners Fund II, L.P.
c/o
ArcLight Capital Partners, LLC
000
Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX
00000
Attention: Xxxxxxxxx
X. Xxxxxx
Associate
General Counsel
Facsimile
No.: 617.867.4698
and a
further copy to:
Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx
Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention:
Xxxx X. Xxxxx, Esq.
Facsimile
No.: (000) 000-0000
10
or to such
other address or facsimile number as such party may hereafter specify for the
purpose by notice to the other parties hereto. All such notices,
requests and other communications shall be deemed received on the date of
receipt by the recipient thereof if received prior to 5:00 p.m. on a Business
Day in the place of receipt. Otherwise, any such notice, request or
communication shall be deemed to have been received on the next succeeding
Business Day in the place of receipt.
Section
4.02. Headings. The
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this
Agreement.
Section
4.03. Amendments and
Waivers. (a) Any provision of this Agreement (including any
Schedule or Exhibit hereto) may be amended or waived if, but only if, such
amendment or waiver is in writing and is signed, in the case of an amendment, by
each party, or in the case of a waiver, by the party against whom the waiver is
to be effective.
(b) No failure
or delay by any party in exercising any right, power or privilege hereunder
shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
Section
4.04. Termination. This
Agreement and all provisions hereof shall terminate on the earlier to occur of
(i) the date, if any, that the Merger Agreement is terminated in accordance with
its terms or (ii) written agreement of Parent and the Stockholder; provided that such
termination shall not relieve any party hereto from any liability for breach of
this Agreement occurring prior to any such termination.
Section
4.05. Severability. If
any term, provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction or other Governmental Authority to be invalid,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such a determination, the
parties shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in an acceptable
manner in order that the transactions contemplated hereby be consummated as
originally contemplated to the fullest extent possible.
Section
4.06. Entire
Agreement. This Agreement supersedes all prior agreements and
undertakings, both written and oral, between the parties, or any of them, with
respect to the subject matter hereof.
Section
4.07. Assignment. The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and
11
permitted
assigns, provided that no party may assign, delegate or otherwise transfer any
of its rights, interests or obligations under this Agreement without the prior
written consent of the other parties hereto, except that Parent may assign,
delegate or otherwise transfer any of its rights, interests or obligations under
this Agreement to an Affiliate without the consent of the Stockholder, but any
such transfer or assignment shall not relieve Parent of its obligations
hereunder (and in the event that such Person is no longer an Affiliate of
Parent, any such rights and interests shall be automatically assigned or
transferred to Parent).
Section
4.08. Fees and
Expenses. All costs and expenses (including, without
limitation, all fees and disbursements of counsel, accountants, investment
bankers, experts and consultants to a party) incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such costs and expenses.
Section
4.09. Specific
Performance. The parties hereto agree that irreparable damage
would occur if any provision of this Agreement were not performed in accordance
with the terms hereof and that the parties shall be entitled (without the
requirement to post bond) to an injunction or injunctions to prevent breaches of
this Agreement or to enforce specifically the performance of the terms and
provisions hereof in the courts provided for in Section 4.11, in addition to any
other remedy to which they are entitled at law or in equity.
Section
4.10. Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without regard to its
conflicts of law principles.
Section
4.11. Jurisdiction. The
parties hereto agree that any suit, action or proceeding seeking to enforce any
provision of, or based on any matter arising out of or in connection with, this
Agreement or the transactions contemplated hereby shall be brought in any
Delaware state court, and each of the parties hereby irrevocably consents to the
jurisdiction of such court (and of the appropriate appellate courts therefrom)
in any such suit, action or proceeding and irrevocably waives, to the fullest
extent permitted by law, any objection that it may now or hereafter have to the
laying of the venue of any such suit, action or proceeding in any such court or
that any such suit, action or proceeding brought in any such court has been
brought in an inconvenient forum. Process in any such suit, action or
proceeding may be served on any party anywhere in the world, whether within or
without the jurisdiction of any such court. Without limiting the
foregoing, each party agrees that service of process on such party as provided
in Section 4.01 shall be deemed effective service of process on such
party.
Section
4.12. WAIVER OF JURY
TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
12
Section
4.13. Counterparts; Third Party
Beneficiaries. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument. Until
and unless each party has received a counterpart of this Agreement signed by
each of the other parties, this Agreement shall have no effect, and no party
shall have any right or obligation under this Agreement (whether by virtue of
any other oral or written agreement or other communication). This
Agreement shall become effective when each party shall have received a
counterpart hereof signed by the other parties. No provision of this
Agreement is intended to confer upon any Person other than the parties hereto
any rights or remedies hereunder. Any such counterpart may be
delivered by facsimile or other electronic format (including
“.pdf”).
13
IN WITNESS
WHEREOF, the parties have executed this Agreement as of the date first written
above.
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PATRIOT
COAL CORPORATION
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By:
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Name:
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Title:
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[STOCKHOLDER]
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By:
Address:
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[Signature
Page to Support Agreement]
Exhibit
A
LIST
OF SHARES
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Class
of Shares
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Number
of Shares Held by the Stockholder
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Common
Stock
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Exhibit
B
MAGNUM
COAL COMPANY
(A
Delaware corporation)
WRITTEN
CONSENT
Dated
as of April 2, 2008
WHEREAS:
The undersigned is a holder of the number and class of shares of Magnum Coal
Company, a Delaware corporation (the “Company”), set forth on the
signature page hereto;
NOW,
THEREFORE: Pursuant to Section 228 of the Delaware General Corporation
Law (the “DGCL”) and the
By-laws of the Company, the undersigned stockholder hereby consents in writing
to the following:
The
adoption of the Agreement and Plan of Merger (the “Merger Agreement”) dated as of
April 2, 2008 among the Company, Patriot Coal Corporation, a Delaware
corporation (“Parent”),
Colt Merger Corporation, a Delaware corporation and wholly owned subsidiary of
Parent and ArcLight Energy Partners Fund I, L.P. and ArcLight Energy Partners
Fund II, L.P., acting jointly, as stockholder representative, and the
transactions contemplated by the Merger Agreement.
This
consent shall have the same force and effect as if taken at a meeting of
stockholders of the Company duly called and constituted pursuant to the DGCL and
the By-laws of the Company.
[Signature
Page Follows]
IN WITNESS
WHEREOF, the undersigned stockholder has hereunto executed this written consent
as of the date first written above.
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[NAME
OF STOCKHOLDER]
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[SIGNATURE
OF STOCKHOLDER]
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Class
of Shares
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Number
of Shares Held by the Stockholder
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Common
Stock
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