AMENDMENT NO. 1 TO THE
Exhibit 2.2
AMENDMENT NO. 1 TO THE
| PURCHASE AND SALE AGREEMENT |
| THIS AMENDMENT NO. 1 (this “Amendment”) to that Purchase and Sale Agreement dated December 31, 2005 by and between the parties hereto (the “Agreement”) is made and entered into on the 7th day of February, 2006, by and among Arch Coal, Inc., a Delaware corporation (“Arch”) and Magnum Coal Company, a Delaware corporation (“Magnum”). |
RECITALS
WHEREAS, on December 31, 2005, Arch and Magnum entered into
the Agreement; and
WHEREAS, Arch and Magnum desire to amend the Agreement as set
forth below;
NOW, THEREFORE, the parties to this Amendment undertake and
agree as follows:
1. Definitions
1.1 Terms capitalized but not
defined herein have the meaning set forth in the Agreement.
2. Working Capital
Adjustment
2.1 The text contained in
Section 3.2(b) shall be deleted in its entirety and
replaced with the following text:
| “The Adjusted Working Capital shall mean the Closing Working Capital reflected on the Actual Closing Working Capital Statement, adjusted as follows: increased by (i) all amounts paid by Arch on or prior to the Closing Date as advance royalties due in January 2006 and payable to Xxxxxxx Rum, ACIN or Xxxxx Xxxxxxxx, (ii) all current medical and other benefits claims that are incurred but not recorded, (iii) all accrued incentive compensation amounts, and (iv) the amount of the payment made by Arch for the January 4, 2006 payroll with respect to the Arch Companies, and decreased by net pension assets. For clarification, the Cash Balance provided for in Section 6.2(d)(j) shall not be factored into the calculation of Adjusted Working Capital in any way.” |
3. Permits
3.1 The text contained in
Section 6.1(c) shall be deleted in its entirety and
replaced with the following text:
| “At the Closing or as soon as reasonably possible thereafter, (i) Arch shall assign or cause the assignment of all rights in and to, and the Company shall assume all obligations under, all Permits listed on Schedule 4.2.19(1) that are not listed as owned by one of the Arch Companies, in each case, pursuant to a Permit Assignment and Assumption Agreement, and (ii) the Company shall cooperate and shall cause the Arch Companies, as applicable, to cooperate, in good faith with Arch in connection with the filings that were made by Arch or one of its Affiliates prior to the Closing with respect to those permits set forth on Schedule 6.1(c) in order to assign such permits to Arch or one of its Affiliates.” |
4. Non-Solicitation
4.1 The text contained in
Section 7(a) shall be deleted in its entirety and replaced
with the following text:
| “The Company agrees that it will not, and none of its Affiliates will, either for its own account or in connection with or on behalf of any Person at any time from the Execution Date until the date that is six months after the Closing Date (the “Restricted Period”), directly or indirectly, either for itself or any other Person, (i) induce, solicit or entice or attempt to induce, solicit or entice any employee at such time of Arch or any of its Subsidiaries at such time to leave the employ thereof, or (ii) in any way interfere with the relationship between Arch or any of its Subsidiaries at such time and any of its employees at such time, it being understood that upon consummation of the sale contemplated in Article II, such |
| restrictions are not applicable to the Arch Companies given that they will be Subsidiaries of the Company. Notwithstanding the foregoing, nothing in this paragraph shall prevent the Company from making general advertisements of employment opportunities or hiring any employee of Arch or its Subsidiaries who independent of any actions by the Company or any of its Affiliates, other than general advertisements, applies for a position with the Company.” |
4.2 The text contained in
Section 7(b) shall be deleted in its entirety and replaced
with the following text:
| “Arch agrees that it will not, and none of its Affiliates will, either for his or its own account or in connection with or on behalf of any Person during the Restricted Period, directly or indirectly, either for itself or any other Person, (i) induce, solicit or entice or attempt to induce, solicit or entice any employee at such time of the Company or its Subsidiaries at such time to leave the employ of thereof, or (ii) in any way interfere with the relationship between the Company or any of its Subsidiaries at such time and any of its employees at such time. Notwithstanding the foregoing, nothing in this paragraph shall prevent Arch from making general advertisements of employment opportunities or hiring any employee of the Company or its Subsidiaries who independent of any actions by Arch or any of its Affiliates, other than general advertisements, applies for a position with Arch.” |
5. Arch Covenants
5.1 The text contained in
Section 6.2(o) shall be deleted in its entirety
5.2 Arch shall pay to the Company a
one-time payment of $34,117,000, such payment to be made by wire
of immediately available funds within one business day from the
execution of the Amendment, to an account specified in writing
by the Company.
6. Integration
6.1 The text contained in
Section 11.12 shall be deleted in its entirety.
7. Miscellaneous
7.1 Sections 11.4, 11.6, 11.7,
11.8 and 11.9 shall be applicable to the terms of this Amendment
and are hereby incorporated by reference; provided that
(a) any reference to “this Agreement” in such
provisions of the Agreement shall be deemed for purposes of this
Amendment to be a reference to “this Amendment” and
(b) any other necessary changes relating to syntax, section
or article references and other similar matters shall be deemed
made.
7.2 The representations of the
Company contained in Section 4.1 and of Arch contained in
Section 4.2.2 shall be applicable to this Amendment and are
hereby incorporated by reference, provided that (a) any
reference to “this Agreement” in such provisions of
the Agreement shall be deemed for purposes of this Amendment to
be a reference to “this Amendment” and (b) any
other necessary changes relating to syntax, section or article
references and other similar matters shall be deemed made.
7.3 The Agreement, this Amendment
and the Ancillary Documents (and any schedules, exhibits or
annexes thereto), contain the entire agreement and understanding
among the parties with respect to the subject matter hereof and
supersede all prior agreements and understandings relating to
such subject matter. Neither Party shall be liable or bound to
the other Party in any manner by any representations, warranties
or covenants relating to such subject matter except as
specifically set forth herein or therein.
7.4 Except as set forth herein, the
terms and provisions of the Agreement shall be unchanged by this
Amendment and shall remain in full force and effect.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of this 7th day of February, 2006.
| Arch Coal, Inc. |
| By: | /s/ Xxxxxx X. Xxxxx |
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| Name: Xxxxxx X. Xxxxx |
| Title: | Vice President — Law |
| Magnum Coal Company |
| By: | /s/ Xxxx X. Xxxxxx |
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| Name: Xxxx X. Xxxxxx |
| Title: | President and Chief Executive Officer |
