AMENDMENT NO. 2 TO RIGHTS AGREEMENT
Exhibit
4.2
AMENDMENT
NO. 2 TO RIGHTS AGREEMENT
This
Amendment No. 2, dated August 2, 2007 (“Amendment No. 2”) to the Rights
Agreement (the “Rights Agreement”) dated as of May 25, 2004 (and amended as of
November 3, 2006) between Xxxxx River Coal Company, a Virginia corporation
(the
“Company”), and Computershare Trust Company, N.A., as rights agent (the “Rights
Agent”), successor to SunTrust Bank, is made by and between the Company and the
Rights Agent. All capitalized terms not otherwise defined herein shall have
the
meanings ascribed thereto in the Rights Agreement.
RECITALS
WHEREAS,
the Board of Directors of the Company has determined that it is in the best
interests of the Company and its shareholders to amend the Rights Agreement;
and
WHEREAS,
the Company has determined to amend the Rights Agreement in accordance with
Section 27 of the Rights Agreement and the Rights Agent is directed to join
in
this Amendment No. 2 to the Rights Agreement as set forth herein.
AGREEMENT
NOW,
THEREFORE, the parties hereto, intending to be legally bound, hereby agree
as
follows:
1. The
definition of Approved Acquisition in Section 1 of the Rights Agreement is
hereby amended to delete the definition in its entirety, and to insert in
lieu
thereof the following:
“APPROVED
ACQUISITION” means any acquisition of Common Stock that (i) causes a Person to
become the Beneficial Owner of (A) 20% or more of the shares of Common Stock
then outstanding, or (B) if already a Beneficial Owner of 20% or more of
the
shares of Common Stock then outstanding, an additional 2% or more of the
shares
of Common Stock then outstanding, and (ii) is approved in advance by a majority
of the Board of Directors.
2. The
definition of Distribution Date in Section 1 of the Rights Agreement is hereby
amended to delete the definition in its entirety, and to insert in lieu thereof
the following:
“DISTRIBUTION
DATE” means the earlier of (i) the Close of Business on the tenth day (or such
later day as may be designated by action of a majority of the Board of
Directors) after the Share Acquisition Date, and (ii) the Close of Business
on
the tenth Business Day (or such later day as may be designated by action
of a
majority of the Board of Directors) after the date of the commencement by
any
Person (other than an Excluded Person) of, or of the first public announcement
of the intention by any Person (other than an Excluded Person) to commence,
a
tender or exchange offer if, upon consummation thereof, such Person, together
with all Affiliates and Associates of such Person, would be the Beneficial
Owner
of 20% or more of the shares of Common Stock then outstanding.
3. Section
2
of the Rights Agreement is hereby amended to delete that Section in its
entirety, and to insert in lieu thereof the following:
SECTION
2. APPOINTMENT OF RIGHTS AGENT. The Company hereby appoints the Rights Agent
to
act as agent for the Company and the holders of the Rights (who, in accordance
with SECTION 3, shall prior to the Distribution Date also be the holders
of the
Common Stock) in accordance with the terms and conditions hereof, and the
Rights
Agent hereby accepts such appointment. The Company may from time to time
appoint
such co-Rights Agents as it may deem necessary or desirable, upon ten (10)
days’
prior written notice to the Rights Agent. The Rights Agent shall have no
duty to
supervise, and shall in no event be liable for, the acts or omissions of
any
such co-Rights Agent. If the Company appoints one or more co-Rights Agents,
then
the respective duties of the Rights Agent and any co-Rights Agents shall
be as
the Company shall determine.
4. Section
21 of the Rights Agreement is hereby amended to delete that Section in its
entirety, and to insert in lieu thereof the following:
SECTION
21. CHANGE OF RIGHTS AGENT. The Rights Agent or any successor Rights Agent
may
resign and be discharged from its duties under this Agreement upon 30 days’
written notice mailed to the Company and to each transfer agent of the Common
Stock and Preferred Stock by registered or certified mail, and, subsequent
to
the Distribution Date, to the holders of the Rights Certificates by first-class
mail. In the event that the transfer agency relationship in effect between
the
Company and the Rights Agent terminates, the Rights Agent will be deemed
to
resign automatically on the effective date of such termination; and any required
notice will be sent by the Company. The Company may remove the Rights Agent
or
any successor Rights Agent upon 30 days’ written notice, mailed to the Rights
Agent or successor Rights Agent, as the case may be, and to each transfer
agent
of the Common Stock and Preferred Stock by registered or certified mail,
and
subsequent to the Distribution Date, to the holders of the Rights Certificates
by first-class mail. If the Rights Agent shall resign or be removed or shall
otherwise become incapable of acting, the Company shall appoint a successor
to
the Rights Agent. The successor rights agent must be a corporation authorized
to
do business in the United States and have assets of at least Fifty Million
Dollars ($50,000,000). If the Company shall fail to make such appointment
within
a period of 30 days of giving notice of such removal or after it has been
notified in writing of such resignation or incapacity by the resigning or
incapacitated Rights Agent or by the holder of a Rights Certificate (who
shall,
with such notice, submit his Rights Certificate for inspection by the Company),
then the registered holder of any Rights Certificate may apply to any court
of
competent jurisdiction for the appointment of a new Rights Agent. After
appointment, the successor Rights Agent shall be vested with the same powers,
rights, duties and responsibilities as if it had been originally named as
Rights
Agent without further act or deed; but the predecessor Rights Agent shall
deliver and transfer to
the
successor Rights Agent any property at the time held by it hereunder, and
execute and deliver any further assurance, conveyance, act or deed necessary
for
the purpose. Not later than the effective date of any such appointment, the
Company shall file notice thereof in writing with the predecessor Rights
Agent
and each transfer agent of the Common Stock and the Preferred Stock, and,
subsequent to the Distribution Date, mail a notice thereof in writing to
the
registered holders of the Rights Certificates. Failure to give any notice
provided for in this SECTION 21, or any defect therein, shall not affect
the
legality or validity of the resignation or removal of the Rights Agent or
the
appointment of the successor Rights Agent, as the case may be.
5. Section
23(b) of the Rights Agreement is hereby amended to delete that Subsection
in its
entirety, and to insert in lieu thereof the following:
(b) If,
following the occurrence of a Share Acquisition Date (i) a Person who is
an
Acquiring Person shall have transferred or otherwise disposed of a number
of
shares of Common Stock in one transaction or series of transactions, not
directly or indirectly involving the Company or any of its Subsidiaries,
which
did not result in the occurrence of a Triggering Event such that such Person
is
thereafter the Beneficial Owner of 20% or less of the outstanding Common
Stock,
and (ii) there are no other Persons immediately following the occurrence
of the
event described in clause (i) who are Acquiring Persons, then the right of
redemption shall be reinstated and thereafter be subject to the provisions
of
this SECTION 23.
6. A
new
Section 35 shall be added to the Rights Agreement as follows:
SECTION
35. FORCE MAJEURE. Notwithstanding anything to the contrary contained herein,
the Rights Agent shall not be liable for any delays or failures in performance
resulting from acts beyond its reasonable control including, without limitation,
acts of God, terrorist acts, shortages of supply, breakdowns or malfunctions,
interruptions or malfunctions of computer facilities, loss of data due to
power
failures or mechanical difficulties with information storage or retrieval
systems, labor difficulties, war or civil unrest.
7. Except
as
amended hereby, the Rights Agreement remains in full force and
effect.
[Signatures
on following page]
IN
WITNESS WHEREOF, the parties hereto have executed this Amendment No. 2 by
their
duly authorized representatives effective the date set forth above.
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XXXXX
RIVER COAL COMPANY
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COMPUTERSHARE
TRUST COMPANY, N.A.
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By:
/s/
Xxxxx X. Xxxxx
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By:
/s/
Xxxxxx X. Xxxxxx
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Name:
Xxxxx
X. Xxxxx
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Name:
Xxxxxx
X. Xxxxxx
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Title:
Chief
Executive Officer
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Title:
Managing
Director
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Address
for notice:
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000
Xxxxxxxxx Xxxxxx, XX
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Xxxxx
000
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Xxxxxxx,
XX 00000
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Attn:
Xxxxxx Xxxxxxxxx
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