FIRST AMENDMENT TO RIGHTS AGREEMENT
Exhibit
4.1
EXECUTION
COPY
FIRST
AMENDMENT TO RIGHTS AGREEMENT
This
Amendment dated as of April 2, 2008 (this “Amendment”)
to the Rights Agreement, dated as of October 22, 2007 (the “Rights
Agreement”), between Patriot Coal Corporation, a Delaware corporation
(the “Company”),
and American Stock Transfer & Trust Company, a New York chartered bank, as
Rights Agent (the “Rights
Agent”). Capitalized terms used herein and not defined shall
have the meanings specified in the Rights Agreement.
WHEREAS,
the Company and the Rights Agent are parties to the Rights
Agreement;
WHEREAS,
the Company proposes to enter into an Agreement and Plan of Merger Agreement,
dated as of April 2, 2008 (as amended, supplemented, modified or replaced from
time to time, the “Merger
Agreement”), by and among the Company, Colt Merger Corporation, a
Delaware corporation (“Merger
Subsidiary”), Magnum Coal Company, a Delaware corporation (“Magnum”),
and ArcLight Energy Partners Fund I, L.P. and ArcLight Energy Partners Fund II,
L.P., acting jointly, as Stockholder Representative,
as well as the Transaction Documents (as such term is defined in the Merger
Agreement), providing for, among other transactions, the merger of Merger
Subsidiary with and into Magnum, with Magnum being the surviving corporation
(the “Merger”)
and the issuance of Common Shares to the Stockholders (as defined in the Merger
Agreement) as consideration for the Merger (such issuance, the “Company
Stock Issuance”);
WHEREAS,
Section 27 of the Rights Agreement permits the Company to amend the Rights
Agreement;
WHEREAS,
the Board of Directors of the Company has determined that the Merger Agreement
and the terms and conditions set forth therein and the transactions contemplated
thereby, including, without limitation, the Merger and the Company Stock
Issuance, are in the best interests of the Company and its
shareholders;
WHEREAS,
the Board of Directors of the Company has determined that it is in the best
interests of the Company and its shareholders to modify the terms of the Rights
Agreement to exempt the Merger Agreement and all of the transactions
contemplated thereby including, without limitation, the Merger and the Company
Stock Issuance, from the application of the Rights Agreement, and in connection
therewith the Company is entering into this Amendment and directing the Rights
Agent to enter into this Amendment; and
WHEREAS,
all acts and things necessary to make this Amendment a valid agreement,
enforceable according to its terms have been done and performed, and the
execution and delivery of this Amendment by the Company and the Rights Agent
have been in all respects duly authorized by the Company and the Rights
Agent.
NOW,
THEREFORE, in consideration of the promises and mutual agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which
are hereby
acknowledged, and intending to be legally bound, the Company and the Rights
Agent hereby agree as follows:
A. Amendment
of Certain Definitions.
Section 1
of the Rights Agreement is supplemented to add the following definitions in the
appropriate alphabetical locations:
“ArcLight
Funds” shall mean ArcLight Energy Partners Fund I, L.P. and ArcLight Energy
Partners Fund II, L.P.
“Company
Stock Issuance” shall mean the issuance of Common Shares to the Stockholders
pursuant to the Merger Agreement.
“Magnum
Transactions” shall mean the transactions contemplated by the Magnum Transaction
Documents.
“Magnum
Transaction Documents” shall mean the Transaction Documents (as such term is
defined in the Merger Agreement), as each may be amended from time to
time.
“Merger”
shall mean the “Merger” as such term is defined in the Merger
Agreement.
“Merger
Agreement” shall mean the Agreement and Plan of Merger, dated as of April 2,
2008, by and among the Company, Colt Merger Corporation, a Delaware corporation,
Magnum Coal Company, a Delaware corporation, and ArcLight Energy Partners Fund
I, L.P. and ArcLight Energy Partners Fund II, L.P., acting jointly, as
Stockholder Representative, as amended from time to time.
“Stockholders”
shall have the meaning ascribed to such term in the Merger
Agreement.
Section 1(a) of the Rights
Agreement is hereby amended by restating the last sentence thereof in its
entirety as follows:
“Notwithstanding
the foregoing, if the Board of Directors of the Company determines in good faith
that a Person who would otherwise be an “Acquiring Person,” as defined pursuant
to the provisions of this paragraph (a), has become such inadvertently, and such
Person divests as promptly as practicable (as determined in good faith by the
Board of Directors) a sufficient number of Common Shares so that such Person
would no longer be an “Acquiring Person,” as defined pursuant to the provisions
of this paragraph (a), then such Person shall not therefor be deemed to be an
“Acquiring Person” for any purposes of this Agreement.”
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Section 1(a) of the Rights
Agreement is hereby further amended and supplemented by adding the following
sentence at the end thereof:
“Notwithstanding
anything in this Agreement to the contrary, (i) no Stockholder or any of its
Affiliates or Associates shall be deemed to be an Acquiring Person solely by
virtue of (A) the approval, execution and delivery of any of the Magnum
Transaction Documents or any amendment thereof approved in advance by the Board
of Directors of the Company, (B) the consummation of any of the Magnum
Transactions, (C) the consummation of the Merger or (D) the Company Stock
Issuance and (ii) none of the ArcLight Funds or their respective Affiliates or
Associates shall be deemed to be an Acquiring Person as a result of being the
Beneficial Owner of greater than 15% of the Common Shares of the Company then
outstanding; provided,
that such Beneficial Ownership relates solely to Common Shares that were issued
to the ArcLight Funds in the Company Stock Issuance; provided,
further that if at any time the ArcLight Funds or their respective
Affiliates or Associates are or become the Beneficial Owner of any other Common
Shares and at such time the ArcLight Funds are or become the Beneficial Owner of
15% or more of the Common Shares of the Company then outstanding, then the
exception set forth in this clause (ii) shall not apply and the ArcLight Funds
shall be deemed to be an Acquiring Person (unless the Board of Directors of the
Company determines in good faith that the ArcLight Funds have inadvertently
become the Beneficial Owner of such other Common Shares and the ArcLight Funds
divest such other Common Shares as promptly as practicable (as determined in
good faith by the Board of Directors)).”
Section 1(d) of the Rights
Agreement is hereby amended and supplemented by adding the following sentence at
the end thereof:
“Notwithstanding
anything in this Agreement to the contrary, no party to any of the Magnum
Transaction Documents shall be deemed to be the Beneficial Owner of any Common
Shares held by any other party to any such agreement solely by virtue of the
execution and delivery of such Magnum Transaction Document or any amendment
thereof approved in advance by the Board of Directors of the Company or the
performance of such party’s rights and obligations under such agreements or any
such amendment.”
Section
1(x) of the Rights Agreement is hereby amended and supplemented by adding the
following sentence at the end thereof:
“Notwithstanding
anything in this Agreement to the contrary, a Shares Acquisition Date shall not
be deemed to have occurred solely as the result of (i) the approval, execution
and delivery of
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the Magnum
Transaction Documents or any amendment thereof approved in advance by the Board
of Directors of the Company, (ii) the consummation of any of the Magnum
Transactions, (iii) the consummation of the Merger or (iv) the Company Stock
Issuance.”
B. Amendment
of Section 3. Section 3(a) of the Rights Agreement is hereby amended
and supplemented by adding the following sentence at the end
thereof:
“Notwithstanding anything
in this Agreement to the contrary, a Distribution Date shall not be deemed to
have occurred solely as the result of (i) the approval, execution and delivery
of the Magnum
Transaction Documents or any amendment thereof approved in advance by the Board
of Directors of the Company, (ii) the consummation of any of the Magnum
Transactions, (iii) the consummation of the Merger or (iv) the Company Stock
Issuance.”
Furthermore, Section 3 of
the Rights Agreement is hereby amended and supplemented by adding the following
sentence at the end thereof as Section 3(d):
“(d)
Nothing in this Agreement shall be construed to give any holder of Rights or any
other Person any legal or equitable rights, remedies or claims under this
Agreement, and no holder of Rights shall be entitled to exercise such Rights,
solely by virtue of (i) the approval, execution and delivery of the Magnum
Transaction Documents or any amendment thereof approved in advance by the Board
of Directors of the Company, (ii) the consummation of any of the Magnum
Transactions, (iii) the consummation of the Merger or (iv) the Company Stock
Issuance.”
C. Effect
of Amendment. Except as expressly set forth herein, the Rights
Agreement shall not by implication or otherwise be supplemented or amended by
virtue of this Amendment, but shall remain in full force and effect, as amended
hereby. This Amendment shall be construed in accordance with and as a
part of the Rights Agreement, and all terms, conditions, representations,
warranties, covenants and agreements set forth in the Rights Agreement and each
other instrument or agreement referred to therein, except as herein amended, are
hereby ratified and confirmed. To the extent that there is a conflict
between the terms and provisions of the Rights Agreement and this Amendment, the
terms and provisions of this Amendment shall govern for purposes of the subject
matter of this Amendment only.
D. Waiver
of Notice. The Rights Agent and the Company hereby waive any
notice requirement with respect to each other under the Rights Agreement, if
any, pertaining to the matters covered by this Amendment.
E. Severability. If
any provision, covenant or restriction of this Amendment is held by a court of
competent jurisdiction or other authority to be invalid, illegal or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this
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Amendment
shall remain in full force and effect and shall in no way be effected, impaired
or invalidated.
F. Governing
Law. This Amendment shall be deemed to be a contract made
under the laws of the State of Delaware and for all purposes shall be governed
by and construed in accordance with the laws of such state applicable to
contracts to be made and performed entirely within such state.
G. Counterparts. This
Amendment may be executed in any number of counterparts and each of such
counterparts shall for all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same
instrument.
H. Effective
Date of Amendment. This Amendment shall be deemed effective as
of the date first written above, as if executed on such date.
I. Descriptive
Headings. Descriptive headings appear herein for convenience
only and shall not control or affect the meaning or construction of any of the
provisions hereof.
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IN WITNESS
WHEREOF, the parties hereto have caused this Amendment to be duly executed as of
the date first written above.
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PATRIOT
COAL CORPORATION
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By:
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/s/
Xxxxxx X. Xxxx
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Name:
Xxxxxx X. Xxxx
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Title:
Senior Vice President, General Counsel & Corporate
Secretary
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AMERICAN
STOCK TRANSFER & TRUST COMPANY
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By:
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/s/
Xxxxxxx X. Xxxxxx
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Name:
Xxxxxxx X. Xxxxxx
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Title:
Vice President
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