Exhibit 2.1
EXHIBIT A TO THIS AGREEMENT IS NOT FILED HEREWITH, AS PROVIDED IN ITEM 601(b)(2)
OF REGULATION S-K PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THE
REGISTRANT AGREES TO FURNISH SUPPLEMENTALLY A COPY OF SUCH OMITTED ATTACHMENT
TO THE SECURITIES AND EXCHANGE COMMISSION UPON REQUEST.
ALPHA NATURAL RESOURCES, INC.
ALPHA NATURAL RESOURCES, LLC
PREMIUM ENERGY, LLC
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
October 26, 2005
Premium Energy, Inc.
000 Xxxxxxx Xxxx Xxxx
Xxxxxxx, XX 00000
Attention: Xxx Xxxxxxxxxx
To Sellers Named in the Acquisition
Agreement referred to below and
Shareholders Named in the Merger
Agreement referred to below and
Xxxxxxxxxx Parties named in the
Indemnification Agreement referred to
below
c/o Xxx Xxxxxxxxxx and
Xxxxx Xxxxxx, as Sellers Representative
000 Xxxxxxx Xxxx Xxxx
Xxxxxxx, XX 00000
Gentlemen:
Reference is made to (a) the Acquisition Agreement (the "Acquisition
Agreement"), dated as of September 23, 2005 among Alpha Natural Resources, LLC,
a Delaware limited liability company, Mate Creek Energy of W. Va., Inc., a West
Virginia corporation, Virginia Energy Company, a Virginia corporation, the
unitholders of Powers Shop, LLC, a Virginia limited liability company, and the
shareholders of each of (i) White Flame Energy, Inc., a West Virginia
corporation, (ii) Twin Star Mining, Inc., a West Virginia corporation, and (iii)
Xxxxxxxxxx Contracting, Inc., a West Virginia corporation, (b) the Agreement and
Plan of Merger ("Merger Agreement") dated as of September 23, 2005 among Alpha
Natural Resources, Inc., Alpha Natural Resources, LLC, Premium Energy, LLC,
Premium Energy, Inc., and the Shareholders of Premium Energy, Inc. and (c) the
Indemnification Agreement (the "Indemnification Agreement" and collectively with
the Acquisition Agreement and the Merger Agreement, the "Agreements") made as of
September 23, 2005 between the parties to the Acquisition Agreement and the
Merger Agreement and certain other parties named on the signature page to the
Indemnification Agreement. Capitalized terms used herein without definition
shall have the meanings ascribed to them in the Agreements as indicated below.
The parties desire to amend certain provisions of the Agreements and, in
consideration of the mutual covenants, conditions and agreements set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Definitions to Acquisition Agreement. Article I of the Acquisition
Agreement is revised by:
(a) adding the following definition:
"Alleghany Consent" means the lessor's consent to the transactions
contemplated by this Agreement pursuant to that certain Lease dated
July 15, 1970 from Island Creek Coal Company to Pine Rock Coals, Inc.
subsequently partially assigned to White Flame Energy.
(b) removing the word "and" at the end of paragraph (xviii) of the
definition of "Retained Liabilities" in the Acquisition Agreement, and replacing
the period with a semicolon at the end of paragraph (xix) of such definition;
(c) adding to the definition of Retained Liabilities of the Acquisition
Agreement new paragraphs (xx), (xxi) and (xxii) to be and read in full as
follows:
(xx) all Liabilities of Sellers, the Acquired Companies, Buyer, and/or
its Affiliates to offer continuation coverage under COBRA, Section 601
et seq. of ERISA, and Section 4980B of the Code to Sellers' current
and former Employees who do not become Retained Employees and who lose
health benefits coverage when the Welfare Plans referred to in Section
11.2 are terminated;
(xxi) all Liabilities arising out of Sellers' and their Employees' and
Affiliates' agreement to provide services to the extent set forth in
the cooperation agreement, substantially in the form of Exhibit F
attached to this Agreement; and
(xxii) all Liabilities with respect to any Inactive Employees,
including, without limitation, all compensation, benefits, and other
rights to which such Inactive Employees are entitled.
(d) deleting the text of the definition of "Inactive Employee" in the
Acquisition Agreement and replacing it with the following:
"Inactive Employee" means an Employee who is employed by the Business
but is not actively working prior to the Closing because such Employee
is disabled or on an approved leave of absence, all of whom are listed
in Section 11.6 of the Disclosure Schedules.
2. Definitions to Merger Agreement. Article I of the Merger Agreement is
revised by:
2
(a) removing the word "and" at the end of paragraph (xviii) of the
definition of "Retained Liabilities" in the Merger Agreement, and replacing the
period with a semicolon at the end of paragraph (xix) of such definition;
(b) adding to the definition of Retained Liabilities in the Merger
Agreement new paragraphs (xx) and (xxi) to be and read in full as follows:
(xx) all Liabilities of Shareholders, the Company, Alpha, Parent, the
Surviving Entity, and/or their Affiliates to offer continuation
coverage under COBRA, Section 601 et seq. of ERISA, and Section 4980B
of the Code to the Company's current and former Employees who do not
become Retained Employees and who lose health benefits coverage when
the Welfare Plans referred to in Section 11.2 are terminated; and
(xxi) all Liabilities with respect to any Inactive Employees,
including, without limitation, all compensation, benefits, and other
rights to which such Inactive Employees are entitled.
(c) deleting the text of the definition of "Inactive Employee" in the
Merger Agreement and replacing it with the following:
"Inactive Employee" means an Employee who is employed by the Business
but is not actively working prior to the Closing because such Employee
is disabled or on an approved leave of absence, all of whom are listed
in Section 11.6 of the Disclosure Schedules.
3. Purchase Price Pursuant to the Acquisition Agreement. Section 2.2 of the
Acquisition Agreement is hereby amended in its entirety to be and read in
full as follows:
Purchase Price. At Closing, Buyer agrees to pay Sellers
Representative, on behalf of and for the benefit of Sellers, an
aggregate of (i) $227,400,000, (the "Base Amount"), plus (ii) the
Estimated True Up as calculated in Section 2.3(a), plus (iii) a
payment of $0.10 per ton of coal mined and sold from White Flame
Energy's Surface Mine No. 10 ("WF 10") from and after the later to
occur of (x) the Closing and (y) the date on which Buyer and its
Affiliates receive the Alleghany Consent at no additional cost or
expense to Buyer or its Affiliates (the "Royalty" and, together with
the Base Amount and the Estimated True Up, the "Purchase Price").
Buyer shall pay the portion of the Purchase Price due at Closing by
(A) promissory notes (the "Buyer Notes") in the form of Exhibit G in
the aggregate principal amount of $221,000,000 and (B) cash in the
aggregate amount of $6,400,000 for the balance of the Purchase Price
payable by wire transfer of immediately available funds to Sellers
Representative, on behalf of and for the benefit of Sellers, in
accordance with the instructions provided by Seller Representative, as
such amount shall be adjusted by the Estimated True Up. Buyer shall
pay the Royalty in respect of each completed calendar quarter, no
later than 15 days after the end of the applicable calendar quarter.
The Purchase Price shall be increased or decreased, as the case may
be, after Closing, by the
3
aggregate of the Final True Up pursuant to Section 2.3 and by the
payment of Additional Taxes pursuant to Sections 10.16(b) and (c). The
Base Amount shall be allocated and paid to each Seller in the amounts
and the form of consideration indicated on Section 2.2 of the
Disclosure Schedule, and the Royalty and the Estimated True Up shall
be allocated to each Seller in the manner determined by Sellers
Representative, each in a manner consistent with the Final Allocation
pursuant to Section 10.13.
4. Working Capital True Up. The Parties to the Acquisition Agreement and the
Merger Agreement hereby waive all obligations to calculate the Estimated
Working Capital and the Estimated True Up based on the Month End Balance
Sheet pursuant to Section 2.3(a) of the Acquisition Agreement and Section
2.4(a) of the Merger Agreement. The Estimated Working Capital shall be
deemed to be $8,600,000 and the Estimated True Up shall be deemed to be $0
for all purposes under the Acquisition Agreement. The Estimated Working
Capital shall be deemed to be $1,400,000 and the Estimated True Up shall be
deemed to be $0 for all purposes under the Merger Agreement. The provisions
of the Acquisition Agreement and Merger Agreement related to the
calculation of the Final Working Capital and the Final True Up shall not be
amended by this Section 4 and shall continue in full force and effect.
5. Section 338(h)(10) Estimate. The Parties to the Acquisition Agreement
hereby acknowledge and agree that the estimate set forth on Exhibit A
constitutes the "Section 338(h)(10) Estimate" pursuant to Section 10.16(b)
of the Acquisition Agreement. Such Parties hereby (i) accept the
calculation set forth in the Section 338(h)(10) Estimate as complete and
accurate, (ii) agree that such Section 338(h)(10) Estimate is binding for
all purposes and in all respects as the Section 338(h)(10) Estimate
required under the Acquisition Agreement and (iii) waive all rights to
raise any objections or dispute the amount or the calculation of the
Section 338(h)(10) Estimate.
6. Article XI to the Acquisition Agreement and Merger Agreement. Article XI of
the Acquisition Agreement and Article XI of the Merger Agreement are hereby
amended and restated in their entirety as attached hereto as Exhibit B.
7. Condition to Closing. Subject to the following sentence and Sections 8 and
9 of this letter agreement, each of Alpha and Parent waives the condition
to Closing set forth in Section 8.1(w) of the Merger Agreement.
Shareholders shall provide such assistance and cooperation after Closing to
Alpha, Parent and Merger Sub, as they shall request, to complete the
negotiation of definitive agreements with Arch Coal Sales Company, Inc. and
its Affiliates on terms reasonably satisfactory to Parent.
8. Definitions to Indemnification Agreement. Article I of the Indemnification
Agreement is revised by adding the following definitions:
"Arch" means, collectively, Arch Coal Company, Inc. and Arch Coal
Sales Company, Inc.
4
"Xxxxxxxxxx Interests" means, collectively, (i) the Acquired Assets
and the assets of the Acquired Companies, as such terms are defined in
the Xxxxxxxxxx Acquisition Agreement, (ii) the assets of the Company,
as defined in the BE Purchase Agreement and (iii) the assets of the
Company, as defined in the PE Merger Agreement.
"Premium/Arch CSA" means that certain Coal Supply Agreement dated July
15, 2000, as amended, by and between Premium Energy and Arch Coal
Sales Company, Inc., as agent for Xxxxx Xxxxx Coal Company.
"Premium/Arch MOU" means that certain Memorandum of Understanding
dated September 17, 2005 between Premium Energy and Arch Coal Company,
Inc., as agent for Xxxxx Xxxxx Coal Company, in the form of Section
8.1(w) to the Disclosure Schedules.
9. Indemnification in respect of the Premium/Arch MOU. Section 5.2(b) of the
Indemnification Agreement is hereby revised by removing the word "and" at
the end of clause (vii) of such Section, adding a semicolon at the end of
clause (viii) of such Section and adding new clauses (ix) and (x) to such
Section to be and read in full as follows:
(ix) Premium Energy's failure to enter into binding definitive
agreements ("Definitive Arch Agreements") with Arch as of Closing (A)
to amend the Premium/Arch CSA to revise Premium Energy's coal delivery
requirements under the Premium/Arch CSA to reflect the reduced coal
delivery requirements set forth in the Premium/Arch MOU as to tonnage,
delivery timing and price, (B) to establish a Preparation and
Transloading Agreement on the terms outlined in the Premium/Arch MOU
and (C) to terminate all of Premium Energy's obligations under the
Premium/Arch CSA on December 31, 2007 (other than those obligations
that survive beyond than December 31, 2007 pursuant to the terms of
the Premium/Arch MOU); and (x) any payment by the Alpha Parties' prior
to January 1, 2006 to the owners or operators of any oil xxxxx, gas
xxxxx or gas lines operating on any of the Xxxxxxxxxx Interests, to
the extent such payments are necessary to permit the Alpha Parties' to
mine coal on the related Xxxxxxxxxx Interests. Notwithstanding clause
(ix)(B) above, if (1) Arch has presented Premium Energy, LLC with a
Preparation and Transloading Agreement that reflects commercially
reasonable and standard terms for similar Preparation and Transloading
Agreements and at the rates set forth in the Premium/Arch MOU, (2)
Arch is willing to enter into such agreement and (3) Premium Energy,
LLC does not enter into such agreement, then Sellers will not be
required to indemnify Buyer for Adverse Consequences insofar as such
Adverse Consequences result from or arise out of clause (ix)(B).
10. Removal of Xxxxx Xxxxxxxx From Indemnification Agreement. The Parties to
the Indemnification Agreement agree that the Indemnification Agreement is
hereby amended to remove all references to "Xxxxx Xxxxxxxx" as an
individual party to the Indemnification Agreement or any Exhibit to the
Indemnification Agreement and Xxxxx Xxxxxxxx shall have no obligations
under the Indemnification Agreement or any such Exhibit. All
5
references to "Party", "Parties", "Xxxxxxxxxx Party" or "Xxxxxxxxxx
Parties" in the Indemnification Agreement shall be deemed to exclude Xxxxx
Xxxxxxxx.
11. Full Force and Effect. Except as amended by this letter agreement, the
Agreements shall continue in full force and effect.
12. Counterparts. This letter agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Any executed
counterpart of this letter agreement or other signature hereto delivered by
a party by facsimile shall be deemed for all purposes as being good and
valid execution and delivery of this letter agreement by such party.
6
Sincerely,
ALPHA NATURAL RESOURCES, INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
ALPHA NATURAL RESOURCES, LLC
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
PREMIUM ENERGY, LLC
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
ACKNOWLEDGED AND AGREED:
PREMIUM ENERGY, INC.
By: /s/ Xxxxxxx Xxxxxx "Don" Xxxxxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxx "Don" Xxxxxxxxxx
Title: President
SELLERS REPRESENTATIVE, AS APPOINTED PURSUANT TO SECTION 13.9 OF THE ACQUISITION
AGREEMENT AND THE MERGER AGREEMENT AND SECTION 6.9 OF THE INDEMNIFICATION
AGREEMENT
By: /s/ Xxxxx Xxxxxx
-----------------------------------
Name: Xxxxx Xxxxxx, individually and as
Sellers Representative
cc: Xxxxxx X. Xxxxxx, Esq., Alpha Natural Resources, LLC
E. Xxxxxxx Xxxxx, Jr., Esq., Xxxxx & Partners
Xxxxx X. Xxxxxxxxx, Esq., Bartlit Xxxx Xxxxxx Xxxxxxxxx & Xxxxx LLP
7
EXHIBIT B
ARTICLE XI OF THE ACQUISITION AGREEMENTS
11.1 Termination. Subject to applicable Laws, and no later than immediately
prior to the Closing, the Subject Companies shall terminate the employment of
all of their Employees who work for the Business, including any Inactive
Employees; but excluding the Employees of Mate Creek, who shall not be
terminated until 11:59 p.m. on October 30, 2005 (collectively, the "Terminated
Employees"). Sellers shall provide the Terminated Employees with any wages,
vacation pay, severance, or other benefits that are due and owing, including
those that are due and owing under the applicable Employee Benefit Plans.
Sellers also shall maintain a Welfare Plan that shall offer to provide
continuation coverage under COBRA, Section 601 et seq. of ERISA, and Section
4980B of the Code to Sellers' current and former Employees who do not become
Retained Employees and who lose health benefits coverage when the Welfare Plans
referred to in Section 11.2 are terminated. Further, Sellers shall continue to
provide any other required compensation or benefits to any of their current and
former Employees who are not Retained Employees.
11.2 Retained Employees. Immediately following the Closing, Buyer or one of
its Affiliates (including, but not limited to, the Acquired Companies) shall
offer to employ the Terminated Employees who are actively working for the
Subject Companies on behalf of the Business immediately prior to the Closing
(other than those Terminated Employees identified by Buyer in Section 11.2 of
the Disclosure Schedule, who shall not be offered employment, and the Employees
who will be working for Mate Creek through October 30, 2005, who shall be
offered employment effective as of 12:01 a.m. on October 31, 2005) on an at will
basis, meaning they can quit or be discharged at any time and for any reason.
The Employees who are hired by Buyer or one of its Affiliates or rehired by an
Acquired Company in accordance with the terms of this Article XI shall be
referred in this Agreement to as the "Retained Employees." Notwithstanding the
foregoing, the Acquired Companies, Buyer, and/or its Affiliates shall have the
right to set new terms and conditions of employment for the Retained Employees
and nothing in this Section 11.2 shall be deemed to require that the employment
of any Retained Employee be continued for any specific period of time after the
Closing Date.
11.3 Employee Benefit Plans.
(a) On or prior to the Closing Date, Sellers shall cause the Acquired
Companies to cease sponsoring or participating in all Employee Benefit Plans
that are not Pension Plans, to pay or provide all benefits due from or under
each such Plan, and to provide evidence satisfactory to Buyer to such effect;
(b) On or prior to the Closing Date, Sellers shall insure that (i) all
Pension Plans are amended to provide that benefit accruals will be frozen as of
October 30, 2005 for all current and former Employees employed by the Subject
Companies; (ii)(A) the appropriate contributions are paid to such Pension Plans
for all hours the Subject Companies' current and former Employees work during
the period of January 1, 2005 through the Closing Date, and (B) an additional
amount is contributed to such Pension Plans for all hours the Retained Employees
work for the
8
Acquired Companies, Buyer, and/or its Affiliates between the Closing Date and
October 30, 2005; and (iii) all participants in such Pension Plans are fully
vested as of October 30, 2005, and that such Pension Plans shall be terminated
as of December 31, 2005. Sellers shall take all such actions after the Closing
as may be reasonably required to comply with these commitments and to provide
evidence satisfactory to Buyer to such effect.
(c) Buyer shall provide Sellers with all information in its possession and
with all reasonable assistance and cooperation needed for Sellers to perform
their obligations under this Article XI. Sellers shall, at Buyer's request,
provide or secure any claims or other data Buyer or its Affiliates or the
Acquired Companies reasonably need to establish or administer the Buyer Benefit
Plans.
11.4 Buyer Benefit Plans. To the extent that the Retained Employees become
eligible to participate in any employee benefit plans or programs that Buyer,
the Acquired Companies, or their Affiliates sponsor, participate in, or
implement on or after the Closing Date (each a "Buyer Benefit Plan"), then for
all purposes (including, without limitation, determining eligibility to
participate, vesting, early retirement and benefit accrual), service with the
Subject Companies shall be treated as service under such Buyer Benefit Plan;
provided, however, that such service need not be recognized (a) to the extent
that such recognition would result in any duplication of benefits, or (b) to the
extent the service is beyond the number of years of service that a Buyer Benefit
Plan will credit for employment with another employer.
11.5 WARN Act. Buyer shall make its hiring decisions under Section 11.2 so
as to insure that the terminations provided for in Section 11.1 do not
constitute a "plant closing" or a "mass layoff" as those terms are defined in
the WARN Act.
11.6. Inactive Employees. Following the Closing, Sellers shall satisfy all
Liabilities with respect to any Inactive Employees and shall insure that any
such Inactive Employees receive all compensation, benefits, and other rights to
which they are entitled for so long as they may be entitled to such
compensation, benefits, and other rights. If and when an Inactive Employee
becomes able to and wants to return to work after the Closing, Buyer, an
Acquired Company, or one of their Affiliates, upon receiving notice that such
individual is able and wants to return to work, shall offer to employ or
reemploy the individual, on the same terms and conditions offered to the
Retained Employees, subject to the individual passing an appropriate physical
examination.
ARTICLE XI OF THE MERGER AGREEMENT
11.1 Termination. Subject to applicable Laws, and no later than immediately
prior to the Closing, the Company shall terminate the employment of all of their
Employees, including any Inactive Employees (the "Terminated Employees").
Shareholders shall provide the Terminated Employees with any wages, vacation
pay, severance, or benefits that are due and owing, including those that are due
and owing under the applicable Employee Benefit Plan. Shareholders or one of
their Affiliates shall maintain a Welfare Plan that shall offer to provide
continuation coverage under COBRA, Section 601 et seq. of ERISA, and Section
4980B of the Code to the Company's current and former Employees who do not
become Retained Employees
9
and who lose health benefits coverage when the Welfare Plans referred to in
Section 11.2 are terminated. Further, Shareholders shall continue to provide any
other required compensation or benefits to any of the Company's current and
former Employees who are not Retained Employees
11.2 Retained Employees. Immediately following the Closing, Parent, the
Surviving Entity or one of their Affiliates shall offer to employ the Terminated
Employees who had been actively working for the Company (other than those
Terminated Employees identified by Parent in Section 11.2 of the Disclosure
Schedule) on an at will basis, meaning they can quit or be discharged at any
time and for any reason. The Employees who are hired or rehired by the Parent,
the Surviving Entity or one of their Affiliates shall be referred in this
Agreement to as the "Retained Employees" Notwithstanding the foregoing, the
Surviving Entity, Parent, and/or their Affiliates shall have the right to set
new terms and conditions of employment for the Retained Employees and nothing in
this Section 11.2 shall be deemed to require that the employment of any Retained
Employee be continued for any specific period of time after the Closing Date.
11.3 Employee Benefit Plans.
(a) On or prior to the Closing Date, Shareholders shall cause the Company
to cease sponsoring or participating in all Employee Benefit Plans that are not
Pension Plans, to provide all benefits due from or under each such Plan, and to
provide evidence satisfactory to Buyer to such effect;
(b) On or prior to the Closing Date, Shareholders shall insure that (i) all
Pension Plans are amended to provide that benefit accruals are frozen as of
October 30, 2005 for the Employees who work for the Company; (ii)(A) the
appropriate contributions are paid to such Pension Plans for all hours the
Company's current and former Employees work during the period of January 1, 2005
through the Closing Date, and (B) an additional amount is contributed to such
Pension Plans for all hours the Retained Employees work for Parent, the
Surviving Entity, and/or their Affiliates the between the Closing Date and
October 30, 2005; and (iii) all participants in such Pension Plans are fully
vested as of October 30, 2005, and that the Pension Plans shall be terminated as
of December 31, 2005. Shareholders shall take all such actions after the Closing
as may be reasonably required to comply with these commitments and to provide
evidence satisfactory to Parent to such effect.
(c) Parent shall provide Shareholders with all information in its
possession and with all reasonable assistance and cooperation needed for
Shareholders to perform their obligations under this Article XI. Shareholders
shall, at Parent's request, provide or secure any claims or other data Parent,
the Surviving Entity or one of their Affiliates reasonably need to establish or
administer the Buyer Benefit Plans.
11.4 Alpha Benefit Plans. To the extent that the Retained Employees become
eligible to participate in any employee benefit plans or programs that Parent,
the Surviving Entity or their Affiliates sponsor, participate in, or implement
on or after the Closing Date (each a "Alpha Benefit Plan"), then for all
purposes (including, without limitation, determining eligibility to participate,
vesting, early retirement and benefit accrual), service with the Company shall
be
10
treated as service under such Alpha Benefit Plan; provided, however, that such
service need not be recognized (a) under any Alpha Benefit Plan which is a
qualified defined benefit pension plan or (b) to the extent that such
recognition would result in any duplication of benefits, or (c) to the extent
the service is beyond the number of years of service that an Alpha Benefit Plan
will credit for employment with another employer.
11.5 WARN Act. Parent, the Surviving Entity or their Affiliates shall make
their hiring decisions under Section 11.2 so as to insure that the terminations
provided for in Section 11.1 do not constitute a "plant closing" or a "mass
layoff" as those terms are defined in the WARN Act.
11.6. Inactive Employees. Following the Closing, Shareholders shall satisfy
all Liabilities with respect to any Inactive Employees and shall insure that
such Inactive Employees receive all compensation, benefits, and other rights to
which they are entitled for so long as they may be entitled to such
compensation, benefits, and other rights. If and when an Inactive Employee
becomes able to and wants to return to work after the Closing, Parent, the
Surviving Entity or one of their Affiliates, upon receiving notice that such
individual is able and wants to return to work, shall offer to employ or
reemploy the individual, on the same terms and conditions offered to the
Retained Employees, subject to the individual passing an appropriate physical
examination.
11
