ESCROW AGREEMENT
Exhibit
99.4
ESCROW
AGREEMENT dated July 23, 2008 (this “Agreement”) among Patriot Coal
Corporation, a corporation organized under the laws of the State of Delaware
(“Parent”), ArcLight
Energy Partners Fund I, L.P. and ArcLight Energy Partners Fund II, L.P., acting
jointly (the “Stockholder
Representative”), and Sovereign Bank, as escrow agent (the “Escrow Agent”).
W
I T N E S S E T H:
WHEREAS,
Parent, Colt Merger Corporation, a Delaware corporation and a wholly owned
subsidiary of Parent (“Merger
Subsidiary”), Magnum Coal Company, a Delaware corporation (the “Company”), and the Stockholder
Representative have entered into an Agreement and Plan of Merger dated as of
April 2, 2008 (as amended from time to time, the “Merger Agreement”), pursuant
to which, among other things, Merger Subsidiary will merge with and into the
Company, and the Company will become a wholly owned subsidiary of Parent, in
each case upon the terms and subject to the conditions of the Merger Agreement
(capitalized terms used herein but not otherwise defined herein shall have the
meanings ascribed to them in the Merger Agreement);
WHEREAS,
the Designated Stockholders have appointed ArcLight Energy Partners Fund I, L.P.
and ArcLight Energy Partners Fund II, L.P., acting jointly, as the Stockholder
Representative, and the Stockholder Representative has accepted the appointment
to act on behalf of the Stockholders for purposes of this Agreement and as set
forth in the Merger Agreement;
WHEREAS,
it is contemplated under the Merger Agreement that Parent will deposit into
escrow at the Closing the Escrow Shares, to be held and disbursed by the Escrow
Agent in accordance with this Agreement and the Merger Agreement;
WHEREAS,
a copy of the Merger Agreement has been delivered to the Escrow Agent, and the
Escrow Agent is willing to act as the Escrow Agent under this Agreement;
and
WHEREAS,
the Escrow Agent will hold the Escrow Shares in a separate escrow account (the
“Escrow Account”)
pursuant to this Agreement.
NOW,
THEREFORE, in consideration of the foregoing and for other good and valuable
consideration (the receipt and sufficiency of which is hereby acknowledged), the
parties to this Agreement agree as follows:
ARTICLE
1
Escrow
Arrangements
Section
1.01. Appointment
and Agreement of Escrow Agent. Parent and the Stockholder
Representative hereby appoint the Escrow Agent to serve as, and the Escrow Agent
hereby agrees to act as, escrow agent on the terms and conditions set forth in
this Agreement.
Section
1.02. Establishment
of the Escrow Account. In accordance with Section 2.08 of the
Merger Agreement, Parent shall deliver to the Escrow Agent as of the Closing the
Escrow Shares. The Escrow Agent shall hold the Escrow Shares in
escrow pursuant to the terms and conditions of this Agreement. Upon
execution of this Agreement, the Escrow Agent acknowledges receipt of 1,190,155
shares of Common Stock of Parent representing the Escrow Shares.
Section
1.03. Purpose of
the Escrow Account. The Escrow Shares will be deposited with
the Escrow Agent and held by the Escrow Agent to secure any indemnification
obligations of the Stockholders under Article 11 of the Merger
Agreement. The Escrow Agent shall treat the Escrow Shares as an
escrow fund in accordance with the terms of this Agreement and the Merger
Agreement and shall hold and dispose of the Escrow Shares only in accordance
with the terms of this Agreement.
Section
1.04. Taxes.
(a) The
parties agree, to the extent permitted by Applicable Law, for purposes of U.S.
federal income Taxes and other applicable Taxes based on income, to treat the
Designated Stockholders as the owners of the Escrow Shares. The
Escrow Agent shall timely report to the Designated Stockholders, and as
otherwise required under Applicable Law (including on Internal Revenue Service
Forms 1099), all dividends, interest and other income earned on the Escrow
Shares as income of the Designated Stockholders in the taxable year or years in
which such income is properly includible, in accordance with their Pro Rata
Shares. For purposes of this Agreement, “Pro Rata Share” of a
Designated Stockholder means the percentage set forth on Schedule A opposite
such Designated Stockholder’s name.
(b) The
Escrow Agent shall deduct and withhold from any funds or other assets otherwise
payable out of the Escrow Account to any Person pursuant to this Agreement such
amounts as the Escrow Agent is required to deduct and withhold with respect to
the making of such payment under any provision of U.S. federal, state, local or
foreign Tax law. To the extent the Escrow Agent so deducts and
withholds amounts, such deducted and withheld amounts shall be timely remitted
to the applicable Taxing Authority and shall be treated for all purposes of this
Agreement as having been paid to the Person(s) in respect of which the Escrow
Agent made such deduction and withholding. If the Escrow Agent so
deducts and withholds amounts, the Escrow Agent shall deliver to the
Person(s) in respect of which the Escrow Agent made such
deduction and withholding an original receipt (or certified copy thereof), or if
unavailable, evidence reasonably satisfactory to
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such
Person(s) that such amounts have been timely remitted to the applicable Taxing
Authority. The Escrow Agent shall cooperate in (i) completing any
procedural requirements necessary for the Escrow Agent to make a payment without
such deduction or withholding and (ii) assisting Person(s) to obtain a refund
for any amount which the Escrow Agent deducted or withheld. The
Stockholder Representative shall use its commercially reasonable efforts to
cause each Designated Stockholder (who has not provided the following forms to
the Escrow Agent at the Effective Time) to promptly provide to the Escrow Agent
an Internal Revenue Service Form W-8 or W-9, as appropriate, and all other Tax
forms that the Escrow Agent reasonably requests in connection with its
obligations under the Code and the Treasury Regulations thereunder in respect of
withholding, backup withholding and information reporting.
Section
1.05. Payments from
the Escrow Account.
(a) If
the Escrow Agent receives a certificate (or any number of counterparts thereof)
signed by both Parent and the Stockholder Representative and directing the
Escrow Agent as to delivery of all or any part of the Escrow Shares to Parent
and/or the Designated Stockholders (or any other Persons) (a “Joint Certificate”), the
Escrow Agent shall immediately deliver such Escrow Shares from the Escrow
Account as directed in such Joint Certificate.
(b) Subject
to Section 11.01 of the Merger Agreement, if at any time (or from time to time),
Parent wishes to make a claim (each, a “Parent Claim”) on behalf of
itself or any other Indemnified Party under Section 11.02 of the Merger
Agreement (collectively, the “Parent Indemnitees”) against
the Escrow Shares for which it, acting in good faith, reasonably believes it is
(or they are) entitled to recovery under Article 11 of the Merger Agreement,
Parent shall deliver to the Escrow Agent and the Stockholder Representative a
certificate signed by Parent (an “Indemnity
Certificate”). Parent may make a Parent Claim in respect of an
amount of reasonably anticipated Damages in advance of the actual incurrence of
such Damages, and, in the event such Damages are properly recoverable by a
Parent Indemnitee in respect of a claim for indemnification under Section 11.02
of the Merger Agreement, payments will be made in respect of such Parent Claim
as such Damages are actually incurred.
(c) Parent
shall deliver to the Stockholder Representative a copy of each Indemnity
Certificate simultaneously with its delivery to the Escrow Agent. If
(pursuant to the applicable provisions of the Merger Agreement) the Stockholder
Representative objects in good faith to Parent’s calculation of the amount or
entitlement to payment of any amount, stated in any Indemnity Certificate (a
“Contested Claim”), the
Stockholder Representative shall, within ten Business Days after receipt of such
Indemnity Certificate, deliver to the Escrow Agent and Parent a certificate,
executed by the Stockholder Representative (a “Notice of Dispute”),
specifying (i) each such Contested Claim to which the Stockholder Representative
objects and (ii) in reasonable detail the nature and basis for each such
objection (provided that no such notice delivered in good faith by the
Stockholder Representative shall fail to be a “Notice of Dispute” hereunder by
virtue of any failure to comply with such specifications). The
Stockholder
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Representative
shall be deemed to have agreed with (and the parties hereto shall be deemed to
be bound by) all items and matters contained in a Indemnity Certificate, except
to the extent there is an objection to any such item or matter in the Notice of
Dispute. Parent and the Stockholder Representative shall negotiate in
good faith and each shall use their respective commercially reasonable efforts
to agree upon the rights of the respective parties with respect to any Contested
Claim.
(d) If
the Escrow Agent shall not have received a Notice of Dispute within ten Business
Days (the “Disagreement
Period”) of delivery to the Escrow Agent of an Indemnity Certificate, the
Escrow Agent shall deliver to Parent (or to such Person as otherwise directed in
such Indemnity Certificate) Escrow Shares with a value (based on the Market
Value and calculated in accordance with the Merger Agreement) equal to the
amount of the Parent Claim in such Indemnity Certificate.
(e) If
the Escrow Agent receives, within ten Business Days after delivery to the Escrow
Agent of an Indemnity Certificate, a Notice of Dispute objecting to any matter
specified in that Indemnity Certificate, the amount so objected to shall be held
by the Escrow Agent and shall not be released from the Escrow Account (but the
remainder of the amount claimed, if any, shall be paid or delivered by the
Escrow Agent to Parent (or to such Person as otherwise directed in such
Indemnity Certificate), except, with respect to the amount as to which the
Stockholder Representative has so objected, in accordance with
either:
(i) a
written settlement agreement executed by Parent and the Stockholder
Representative; or
(ii) a
final, non-appealable decision of a court of competent jurisdiction (either of (i) or (ii), a “Final Determination”),
after
which time the Escrow Agent shall transfer to Parent (or to such Person as
otherwise directed in such Indemnity Certificate) out of the Escrow Account as
soon as practicable a number of Escrow Shares with a value (based on the Market
Value and calculated in accordance with the Merger Agreement) equal to the
amount set forth in the Final Determination.
(f) Notwithstanding
any survival or time limitations set forth in the Merger Agreement with respect
to any given Parent Claim, Parent shall be entitled to maintain and prove such
Parent Claim that has been set forth in an Indemnity Certificate delivered
pursuant to Section 1.05(b) on or before the end of the applicable survival or
time limitation period until such claim is fully and finally resolved even if
such resolution does not occur until after the end of such survival or time
limitation period. At any time before or after the end of an
applicable survival or time limitation period, Parent shall be entitled to
deliver a revised Indemnity Certificate in accordance with Section 1.05(b) with
respect to any Parent Claim setting forth the recalculated amount of Damages
incurred or that the relevant Parent Indemnitee reasonably anticipates it or
other Parent Indemnitees may incur with respect to such Parent Claim, at the
time of such delivery. For purposes
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of
this Agreement, the “Reserved
Amount” means, with respect to each Parent Claim and at any given time,
the amount claimed in good faith (including amounts the relevant Parent
Indemnitee reasonably anticipates it or other Parent Indemnitees may incur) and
unpaid (including, for the avoidance of doubt, applicable interest thereon) as
set forth in the most recent Indemnity Certificate delivered with respect to
such Parent Claim at such time, to the extent those claims shall not have been
fully and finally resolved at or before such time. In this
respect:
(i) if,
on the first Business Day after the first anniversary of the date hereof (the
“Initial Release Date”),
the aggregate Market Value as of the Initial Release Date of the Escrow Shares
then remaining in the Escrow Account exceeds the aggregate of all Reserved
Amounts at such time, then promptly after the Initial Release Date, the Escrow
Agent shall (x) deliver to each Stockholder at the address for such Stockholder
set forth on Schedule A hereto a number of Escrow Shares equal to such
Stockholder’s Pro Rata Share of such excess and (y) retain in the Escrow Account
the remainder of the Escrow Shares;
(ii) if,
on the Initial Release Date, the aggregate of all Reserved Amounts at such time
is greater than or equal to the aggregate Market Value as of the Initial Release
Date of the Escrow Shares then remaining in the Escrow Account, the Escrow Agent
shall retain all of the Escrow Shares in the Escrow Account; and
(iii) if, following the Initial Release Date, the disposition of all remaining Reserved
Amounts is determined pursuant to one or more Final
Determinations and, if
applicable, paid to a Parent Indemnitee,
and after such payment(s), if
any, any Escrow Shares remain in the Escrow Account, then
the Escrow Agent shall promptly deliver to each Stockholder at the
address for such Stockholder set forth on Schedule A hereto a number of Escrow
Shares equal to such Stockholder’s Pro Rata Share of the remainder of the Escrow
Shares.
(g) In
connection with any delivery of Escrow Shares by the Escrow Agent to any Person
pursuant to this Agreement, to the extent a physical stock certificate held by
the Escrow Agent with respect to any Escrow Shares to be delivered to such
Person represents shares in excess of the number of Escrow Shares to be
delivered to such Person, the Escrow Agent shall deliver such stock certificate
to Parent and Parent shall promptly prepare and deliver to the Escrow Agent a
new stock certificate representing such excess number of shares and the Escrow
Agent shall hold such new stock certificate as part of the Escrow Shares in the
Escrow Account. Parent and the Stockholder Representative authorize
the Escrow Agent for any securities held hereunder, to use the services of any
United States central securities depository it reasonably deems appropriate,
including, without limitation, the Depositary Trust Company and the Federal
Reserve Book Entry System.
(h) For
purposes hereof, the amount of any given Parent Claim shall include interest in
accordance with Section 11.02(g) of the Merger Agreement.
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Section
1.06. Maintenance
of the Escrow Account. The Escrow Agent shall continue to
maintain the Escrow Account until the time at which there shall be no Escrow
Shares or other property in such Escrow Account.
Section
1.07. Voting of
Escrow Shares. With respect to any matter on which the holders
of Parent Stock have voting rights, the Escrow Shares shall be voted, subject to
the terms of the Voting Agreement, as directed by the Stockholder Representative
on behalf of each Designated Stockholder.
ARTICLE
2
Matters
Relating To the Escrow Agent
Section
2.01. Escrow
Agent.
(b) The
duties and obligations of the Escrow Agent shall be determined solely by this
Agreement, and the Escrow Agent shall not be liable, except for the performance
of such duties and obligations as are specifically set forth in this
Agreement.
(c) In
the performance of its duties hereunder, the Escrow Agent shall be entitled to
rely upon any document, instrument or signature believed by it in good faith to
be genuine and signed by any party hereto or an authorized officer or agent
thereof, and shall not be required to investigate the truth or accuracy of any
statement contained in any such document or instrument. The Escrow
Agent may assume that any person purporting to give any notice in accordance
with the provisions of this Agreement has been duly authorized to do
so.
(d) The
Escrow Agent shall not be liable for any error of judgment, or any action taken,
suffered or omitted to be taken, hereunder, except in the case of its
negligence, bad faith or willful misconduct. The Escrow Agent may
consult with counsel of its own choice and shall have full and complete
authorization and protection for any action taken or suffered by it hereunder in
good faith and in accordance with the opinion of such counsel.
(e) The
Escrow Agent shall have no duty as to the collection or protection of the Escrow
Shares, nor as to the preservation of any rights pertaining thereto, beyond the
safe custody of any such Escrow Shares actually in its possession.
(f) As
compensation for its services to be rendered under this Agreement, for each year
or any portion thereof, the Escrow Agent shall receive fees in the amounts
specified in Schedule B to this Agreement and shall be reimbursed upon
request for all
6
reasonable
expenses, disbursements and advances, including reasonable fees of outside
counsel, if any, reasonably incurred or made by it in connection with the
preparation of this Agreement and the carrying out of its duties under this
Agreement. All such fees and expenses shall be paid 50% by Parent and
50% by the Stockholder Representative. The Escrow Agent hereby
acknowledges receipt of payment of fees payable hereunder from the date hereof
to the first anniversary of this Agreement. Any fees that are
outstanding at the time of termination of this Agreement either may be deducted
from the Escrow Account prior to making the final distribution or the Escrow
Agent may withhold sufficient assets from the final distribution to cover the
escrow fee then due, in the sole discretion of the Escrow Agent.
(g) Parent
and the Stockholder Representative shall reimburse and indemnify the Escrow
Agent for, and hold it harmless against, any loss, liability or expense,
including, without limitation, reasonable attorneys’ fees, incurred without
negligence, bad faith or willful misconduct on the part of the Escrow Agent
arising out of, or connection with the acceptance of, or the performance of, its
duties and obligations under this Agreement; provided, that such loss,
liability or expense shall be divided equally between Parent, on the one hand,
and the Stockholder Representative, on the other.
(h) The
Escrow Agent may at any time resign by giving 20 Business Days’ prior written
notice of resignation to Parent and the Stockholder
Representative. Parent and the Stockholder Representative may at any
time jointly remove the Escrow Agent by giving 10 Business Days’ written notice
signed by each of them to the Escrow Agent. If the Escrow Agent shall
resign or be removed, a successor Escrow Agent, which shall be a bank or trust
company having (or, in the case of a subsidiary of a bank holding company, its
parent shall have) assets in excess of $500 million, and which shall be
reasonably acceptable to the Stockholder Representative, shall be appointed by
Parent by written instrument executed by Parent and the Stockholder
Representative and delivered to the Escrow Agent and to such successor Escrow
Agent and, thereupon, the resignation or removal of the predecessor Escrow Agent
shall become effective and such successor Escrow Agent, without any further act,
deed or conveyance, shall become vested with all right, title and interest to
all cash and property held hereunder of such predecessor Escrow Agent, and such
predecessor Escrow Agent shall, on the written request of the Stockholder
Representative, Parent or the successor Escrow Agent, execute and deliver to
such successor Escrow Agent all the right, title and interest hereunder in and
to the Escrow Shares held by such predecessor Escrow Agent and all other rights
hereunder, and records relating hereto, of such predecessor Escrow
Agent. If no successor Escrow Agent shall have been appointed within
20 Business Days of a notice of resignation by the Escrow Agent, the Escrow
Agent’s sole responsibility shall thereafter be to hold the Escrow Shares until
the earlier of its receipt of designation of a successor Escrow Agent, a joint
written instruction by Parent and the Stockholder Representative and termination
of this Agreement in accordance with its terms.
(i) If
any controversy arises between the parties to this Agreement concerning the
subject matter of this Agreement, its terms or conditions, the Escrow Agent will
not be required to determine the controversy or to take any action regarding
it. The Escrow
7
Agent
may hold all documents, assets and funds and may wait for settlement of any such
controversy by final appropriate legal proceedings or other means. In
such event, the Escrow Agent will not be liable for interest or
damage. Furthermore, the Escrow Agent may, at its option, file an
action of interpleader requiring the parties other than the Escrow Agent to
answer and litigate any claims and rights among themselves. The
Escrow Agent is authorized, at its option, to deposit with the Clerk of the
Court or the arbitrator, as applicable, all documents and funds held in escrow,
except all costs, expenses, charges and reasonable attorneys’ fees incurred by
the Escrow Agent due to the interpleader action and which the parties agree to
pay. Upon initiating such interpleader action, the Escrow Agent shall
be fully released and discharged of and from all obligations and liability
imposed by the terms of this Agreement.
ARTICLE
3
Miscellaneous
Section
3.01. 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,
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(a)
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if
to Parent, to:
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Patriot
Coal Corporation
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00000
Xxxxx Xxxxxxxxx, Xxxxx 000
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Xx.
Xxxxx, Xxxxxxxx 00000
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Attention: Xxxxxx
X. Xxxx
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Facsimile
No.: (000) 000-0000
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with
a copy to:
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Xxxxx
Xxxx & Xxxxxxxx
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000
Xxxxxxxxx Xxxxxx
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Xxx
Xxxx, XX 00000
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Attention: Xxxxxxx
X. Xxxxxx
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Facsimile
No.: (000) 000-0000
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(b)
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if
to the Stockholder Representative, to:
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ArcLight
Energy Partners Fund I, L.P.
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ArcLight
Energy Partners Fund II, L.P.
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c/o
ArcLight Capital Partners, LLC
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000
Xxxx 00xx Xxxxxx, 00xx Xxxxx
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Xxx
Xxxx, XX 00000
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Attention: Xxxx
X. Xxxxxx
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Senior Partner
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Facsimile
No.: 000-000-0000
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8
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with
a copy to:
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ArcLight
Energy Partners Fund I, L.P.
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ArcLight
Energy Partners Fund II, L.P.
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c/o
ArcLight Capital Partners, LLC
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000
Xxxxxxxxx Xxxxxx, 00xx Xxxxx
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Xxxxxx,
XX 00000
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Attention: Xxxxxxxxx
X. Xxxxxx
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Associate
General Counsel
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Facsimile
No.: 617.867.4698
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and
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Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP
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Xxxx
Xxxxx Xxxxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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Attention: Xxxx
X. Xxxxx, Esq.
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Facsimile
No.: (000) 000-0000
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(c)
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if
to Escrow Agent, to:
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Sovereign
Bank, Wealth Management Division
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00
Xxxxx Xxxxxx, 0xx
Xxxxx
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Xxxxxx,
XX 00000
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Attention: Xxx
Xxxxxx
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Account
Officer
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Facsimile
No.: (000) 000-0000
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with
a copy to:
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Xxxxxxx
Xxxxx, Chief Compliance Officer
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Facsimile
No.: (000) 000-0000
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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. If any Indemnity Certificate,
Notice of Dispute or other certificate or document is required to be delivered
to the Escrow Agent and any other party, the Escrow Agent may assume without
inquiry that such document was received by such other party when it was received
by the Escrow Agent.
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Section
3.02. 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
3.03. Amendments
and Waivers.
(a) Any
provision of this Agreement (including any Schedule 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
3.04. 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
3.05. Assignment;
Successors. This Agreement may not be assigned without the
express written consent of the other parties hereto (which consent may be
granted or withheld in the sole discretion of such other parties); provided that Parent may
assign this Agreement to any Person without the consent of the other parties
hereto, but any such assignment shall not relieve Parent of its obligations
hereunder. This Agreement shall be binding upon and inure solely to
the benefit of the parties hereto and their permitted assigns. The
Escrow Agent may assume without inquiry that any assignment purported to be made
by Parent pursuant to this Section is valid.
Section
3.06. 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
3.07. 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.
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Section
3.08. 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 courts (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 3.01 shall be deemed effective service of process on such
party.
Section
3.09. 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.
Section
3.10. 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 and the Stockholders any rights or
remedies hereunder. Any such counterpart may be delivered by
facsimile or other electronic format (including “.pdf”).
Section
3.11. 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 3.08, in addition to any
other remedy to which they are entitled at law or in equity.
Section
3.12. Payments. All
payments hereunder shall be made promptly, and in any event within one Business
Day, after the entitlement to the payment is determined as set forth
herein.
Section
3.13. Certain
Amendments. If, after the date hereof, Parent shall pay any
dividend or make any distribution in respect of the Escrow Shares or the Escrow
Shares shall be exchanged for or converted into other securities, assets, cash
or any combination
11
thereof,
then promptly thereafter the parties hereto will enter into an appropriate
amendment to this Agreement to properly account for such distribution, dividend,
exchange or conversion.
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IN
WITNESS WHEREOF, the parties hereto have caused this Escrow Agreement to be
executed as of the date first written above.
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PATRIOT
COAL CORPORATION
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By:
|
/s/Xxxxxx
X. Xxxx
|
||
|
Name:
|
Xxxxxx
X. Xxxx
|
||
|
Title:
|
Senior
Vice President, General Counsel & Corporate
Secretary
|
||
|
ARCLIGHT
ENERGY PARTNERS FUND I, L.P., as Stockholder
Representative,
|
|||
|
By: ArcLight
PEF GP, LLC, its General Partner
|
|||
|
By: ArcLight
Capital Holdings, LLC, its Manager
|
|||
|
By:
|
/s/Xxxxxx
X. Xxxxxx
|
||
|
Name:
|
Xxxxxx
X. Xxxxxx
|
||
|
Title:
|
Manager
|
||
|
ARCLIGHT
ENERGY PARTNERS FUND II, L.P., as Stockholder
Representative,
|
|||
|
By: ArcLight
PEF XX XX, LLC, its General Partner
|
|||
|
By: ArcLight
Capital Holdings, LLC, its Manager
|
|||
|
By:
|
/s/Xxxxxx
X. Xxxxxx
|
||
|
Name:
|
Xxxxxx
X. Xxxxxx
|
||
|
Title:
|
Manager
|
||
|
SOVEREIGN
BANK
|
|||
|
By:
|
/s/
|
||
|
Name:
|
|||
|
Title:
|
|||
