Execution Copy
AMENDED AND RESTATED LETTER AGREEMENT
AMENDED AND RESTATED LETTER AGREEMENT (this "Agreement") dated as of
September 28, 2004 by and among Blackstone FCH Capital Partners IV L.P.,
Blackstone Family Investment Partnership IV-A L.P., First Reserve Fund IX,
L.P. (collectively, the "Sponsors") and Foundation Coal Holdings, Inc. (the
"Company" and, together with the Sponsors, the "Parties").
WHEREAS, the Parties are parties to a letter agreement dated as of
July 30, 2004 (the "Original Letter Agreement");
WHEREAS, as a result of the merger of Foundation Coal Holdings, LLC
with and into the Company the Sponsors became holders of shares in the
Company;
WHEREAS, the Parties are parties together with the other
stockholders named therein to a Stockholders Agreement, dated as of August 17,
2004 (the "Current Stockholders Agreement") which the parties thereto have
agreed to amend and restate in contemplation of the consummation of a
Qualified IPO (the "Amended and Restated Stockholders Agreement");
WHEREAS, the Amended and Restated Stockholders Agreement will become
effective upon the consummation of a Qualified IPO; and
WHEREAS, the Parties wish to amend and restate the Original Letter
Agreement.
NOW, THEREFORE, in consideration of the premises and the
representations, warranties and agreements contained herein, and for other
good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, and intending to be legally bound hereby, the Parties
agree to amend and restate the Original Letter Agreement as follows:
1. Reference is made to the Current Stockholders Agreement,
including sections 3.9 and 9.1 thereof and as of the date that the Amended and
Restated Stockholders Agreement becomes effective (the "Effective Date") all
references to the Current Stockholders Agreement shall be references to the
Amended and Restated Stockholders Agreement, including sections 3.7 and 6.1
thereof. Capitalized terms used in this Agreement and not otherwise defined in
this Agreement shall have the meanings ascribed thereto in the Current
Stockholders Agreement and after the Effective Date, shall have the meanings
ascribed thereto in the Amended and Restated Stockholders Agreement.
2. The Parties agree that in the event the Company pursues a
potential transaction or matter which may be an investment or business
opportunity or prospective economic or competitive advantage in which the
Company could have an interest or expectancy (each, a "Company Opportunity")
which is also being pursued or may be pursued by an Affiliate of a Sponsor
Stockholder, such Sponsor Stockholder shall implement appropriate "Chinese
wall" procedures and other formal precautions and shall act in good faith in
respect of its dealings with the Company so as not to disadvantage the Company
with respect to the pursuit of any such Company Opportunity, including,
without limitation, through the sharing by such Sponsor
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Stockholder (or any of its Representatives) of Confidential Information with
such Affiliate (or any persons employed by a Sponsor Stockholder acting as a
director or executive officer of such Affiliate) or the exercise of voting
rights with respect to the pursuit of such Company Opportunity. For the
avoidance of doubt, a Company Opportunity shall include, without limitation,
each of the following: (i) the appointment of any senior executive officer or
other senior management personnel of the Company or any of its Subsidiaries,
and (ii) any purchase, sale, lease, Encumbrance, Transfer or other acquisition
or disposition of assets of the Company or any of its Subsidiaries having an
aggregate value in excess of $20 million, or any merger, consolidation,
conversion, business combination or joint venture involving the Company or any
of its Subsidiaries; and no Sponsor Stockholder shall be entitled to exercise
its voting rights in a manner which would restrict the Company or any of its
Subsidiaries' ability to effectuate a public offering of Common Stock
Equivalents or Common Stock (or any right, warrant or option to acquire or
security convertible into or exchangeable for any such Common Stock
Equivalents or Common Stock) (an "Equity Offering") if the sole purpose of
such Sponsor Stockholder exercising such voting rights is to facilitate the
pursuit of an Equity Offering by an Affiliate of such Sponsor Stockholder.
Subject to otherwise complying with the provisions of this Section 2, nothing
in this Agreement shall prohibit a Sponsor Stockholder or any of its
Representatives from voting on any matter in good faith and in the reasonable
business judgment of the Sponsor.
3. This Agreement shall be construed in accordance with, and
governed by, the laws of the State of Delaware without regard to conflicts of
laws principles which would result in the application of the laws of another
jurisdiction. This Agreement may be executed in counterparts, each of which
shall be deemed an original, and all of which together shall constitute a
single agreement.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be
duly executed as of the date first written above.
FOUNDATION COAL HOLDINGS, INC.
By:
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Name:
Title:
BLACKSTONE FCH CAPITAL PARTNERS IV L.P.
By: Blackstone Management Associates IV
L.L.C., its General Partner
By:
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Authorized Signatory
BLACKSTONE FAMILY INVESTMENT
PARTNERSHIP IV-A L.P.
By: Blackstone Management Associates IV
L.L.C., its General Partner
By:
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Authorized Signatory
FIRST RESERVE FUND IX, L.P.
By: First Reserve GP IX, L.P.,
its General Partner
By: First Reserve GP IX, Inc.,
its General Partner
By:
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Name:
Title:
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