Exhibit 2.12
ASSET PURCHASE AGREEMENT
BY AND BETWEEN
PITTSTON COAL COMPANY
AND
ALPHA COAL SALES CO., LLC
October 29, 2002
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS...................................................................................... 1
1.1. Affiliate..............................................................................................1
1.2. Agreement..............................................................................................2
1.3. Asset Sale Companies...................................................................................2
1.4. Assignment and Assumption Agreements...................................................................2
1.5. Assumed Liabilities....................................................................................2
1.6. Business...............................................................................................2
1.7. Buyer..................................................................................................2
1.8. Buyer Closing Certificate..............................................................................3
1.9. Buyer's Parent.........................................................................................3
1.10. Closing...............................................................................................3
1.11. Closing Date.........................................................................................3
1.12. Coal Act.............................................................................................3
1.13. Code..................................................................................................3
1.14. Contracts.............................................................................................3
1.15. Dispute...............................................................................................4
1.16. Governmental Authority................................................................................4
1.17. Indemnification and Guaranty Agreement................................................................4
1.18. Knowledge of PCC......................................................................................4
1.19. Law...................................................................................................4
1.20. Lien..................................................................................................4
1.21. Liability.............................................................................................5
1.22. Material Adverse Effect...............................................................................5
1.23. Ordinary Course of Business...........................................................................5
1.24. PCC...................................................................................................5
1.25. PCC Closing Certificate...............................................................................5
1.26. PCC Group.............................................................................................5
1.27. PCC Parent............................................................................................5
1.28. Permitted Liens.......................................................................................6
1.29. Person................................................................................................6
1.30. Pre-Closing Periods...................................................................................6
1.31. Purchase Price........................................................................................6
1.32. Purchased Assets......................................................................................6
1.33. Related Persons.......................................................................................6
1.34. Retained Liabilities..................................................................................6
1.35. Tax...................................................................................................7
1.36. Tax Return............................................................................................8
ARTICLE II PURCHASE AND SALE OF ASSETS..........................................................................8
2.1. Transfer of Assets...................................................................................8
2.2. Assignment and Assumption Agreements and Other Documents.............................................8
2.3. Assumption of Liabilities............................................................................9
2.4. Proration of Liabilities; Payment Reimbursement......................................................9
2.5. Indemnification and Guaranty Agreement...............................................................9
2.6. Additional Documents.................................................................................9
ARTICLE III REPRESENTATIONS AND WARRANTIES OF PCC..............................................................10
3.1. Incorporation.........................................................................................10
3.2. Execution, Delivery and Performance...................................................................10
3.3. Authorization.........................................................................................11
3.4. Contracts.............................................................................................12
3.5. Litigation; Claims....................................................................................13
3.6. No Broker.............................................................................................13
3.7. Undisclosed Liabilities...............................................................................13
3.8. Legal Compliance......................................................................................14
3.9. Transactions with Affiliates..........................................................................14
3.10. Disclosure...........................................................................................14
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF BUYER.............................................................14
4.1. Organization........................................................................................15
4.2. Execution, Delivery and Performance.................................................................15
4.3. Authorization.......................................................................................15
4.4. No Broker...........................................................................................16
4.5. Financing...........................................................................................16
4.6. Disclosure..........................................................................................16
ARTICLE V CERTAIN COVENANTS....................................................................................16
5.1. Operation in Ordinary Course........................................................................16
5.2. Compliance with Law.................................................................................17
5.3. Cooperation.........................................................................................17
5.4. Notices and Consents................................................................................18
5.5. Publicity...........................................................................................18
5.6. Exclusivity.........................................................................................19
5.7. Access..............................................................................................19
5.8. Notice of Developments..............................................................................20
5.9. Further Assurances..................................................................................20
ARTICLE VI CONDITIONS PRECEDENT TO CLOSING.....................................................................20
6.1. Conditions Precedent to Each Party's Obligations....................................................20
6.2. Conditions Precedent to Obligations of Buyer........................................................22
6.3. Conditions Precedent to Obligations of PCC..........................................................23
ARTICLE VII TERMINATION........................................................................................25
7.1. Termination...........................................................................................25
7.2. Effect of Termination.................................................................................26
ARTICLE VIII MISCELLANEOUS.....................................................................................27
8.1. Entire Agreement......................................................................................27
8.2. Amendment.............................................................................................27
8.3. Extension; Waiver.....................................................................................27
8.4. Expenses..............................................................................................28
8.5. Bulk Sales Waiver.....................................................................................28
8.6. Governing Law.........................................................................................28
8.7. Assignment............................................................................................28
8.8. Notices...............................................................................................28
8.9. Counterparts; Headings................................................................................30
8.10. Interpretation; Construction.........................................................................30
8.11. Severability.........................................................................................30
8.12. No Reliance..........................................................................................30
8.13. Retention of and Access to Records...................................................................31
8.14. Arbitration..........................................................................................31
EXHIBITS
Exhibit A Assignment and Assumption Agreements
Exhibit B Buyer Closing Certificate
Exhibit C Indemnification and Guaranty Agreement
Exhibit D PCC Closing Certificate
Exhibit E Opinion of Counsel to PCC
Exhibit F Opinion of Counsel to Buyer
SCHEDULES
Schedule 1.3 Asset Sale Companies
Schedule 1.14 Contracts of Asset Sale Companies
Schedule 1.18 Knowledge of PCC
Schedule 1.28 Permitted Liens
Schedule 1.34(c) Excluded Contracts
Schedule 3.1 Foreign States
Schedule 3.2 Conflicts
Schedule 3.4(b) Contract Exceptions
Schedule 3.4(c) Consents
Schedule 3.5 Litigation; Claims
Schedule 3.9 Transactions with Affiliates
Schedule 5.4(a) PCC Consents
Schedule 5.4(b) Buyer Consents
Schedule 6.1(e)(i) PCC Material Consents
Schedule 6.1(e)(ii) Buyer Material Consents
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT is made as of the 29th day of October, 2002,
by and between PITTSTON COAL COMPANY, a Delaware corporation ("PCC"), and ALPHA
COAL SALES CO., LLC, a Delaware limited liability company ("Buyer").
RECITALS
WHEREAS, PCC owns, directly or indirectly, all of the outstanding capital
stock of the corporations listed on Schedule 1.3 (the "Asset Sale Companies");
WHEREAS, PCC desires to cause to be sold and assigned, and Buyer desires to
purchase and assume, certain of the assets and certain of the Liabilities (as
hereinafter defined) of the Asset Sale Companies;
WHEREAS, PCC desires to cause the Asset Sale Companies to retain certain
assets and certain Liabilities;
NOW, THEREFORE, 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, PCC and Buyer agree
that:
ARTICLE I
DEFINITIONS
When used in this Agreement, the following terms shall have the meanings
specified:
1.1. Affiliate.
"Affiliate" shall mean, with respect to a specified Person, another Person
that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified. "Control"
shall mean the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through
the ownership of voting securities, by contract or otherwise. For purposes of
this Agreement, none of Dominion Terminal Associates or any of its partners,
other than Pittston Coal Terminal Corporation, shall be deemed an Affiliate of
PCC or any of its Affiliates.
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1.2. Agreement.
"Agreement" shall mean this Asset Purchase Agreement, together with the
Exhibits and Schedules attached hereto, which are incorporated into this Asset
Purchase Agreement by this reference, as the same may be amended from time to
time in accordance with the terms hereof.
1.3. Asset Sale Companies.
"Asset Sale Companies" shall have the meaning given to it in the Recitals
to this Agreement. The term "Asset Sale Company" shall mean one of the Asset
Sale Companies.
1.4. Assignment and Assumption Agreements.
"Assignment and Assumption Agreements" shall mean the assignment and
assumption agreements substantially in the form of Exhibit A attached hereto.
1.5. Assumed Liabilities.
"Assumed Liabilities" shall mean the performance of any and all obligations
required to be performed under the Contracts by Buyer from and after the Closing
other than any Retained Liabilities.
1.6. Business.
"Business" shall mean the coal sale business conducted by the Asset Sale
Companies using the Purchased Assets.
1.7. Buyer.
"Buyer" shall have the meaning given to it in the preamble of this
Agreement.
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1.8. Buyer Closing Certificate.
"Buyer Closing Certificate" shall mean the certificate of Buyer
substantially in the form of Exhibit B attached hereto.
1.9. Buyer's Parent.
"Buyer's Parent" shall mean Alpha Natural Resources, LLC, a Delaware
limited liability company.
1.10. Closing.
"Closing" shall mean the closing of the transactions contemplated by this
Agreement beginning at 10:00 a.m., local time, on the Closing Date, at the
offices of Hunton & Williams, Riverfront Plaza, East Tower, 951 East Byrd
Street, Richmond, Virginia 23219.
1.11. Closing Date.
"Closing Date" shall mean November 30, 2002 or such other date as the
parties may mutually agree in writing.
1.12. Coal Act.
"Coal Act" shall mean the Coal Industry Retiree Health Benefit Act of 1992
as amended through the Closing Date (codified at Subtitle J of the Code).
1.13. Code.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and, where
appropriate, any predecessor or successor provisions of Law, and all regulations
thereunder.
1.14. Contracts.
"Contracts" shall mean the contracts, agreements, relationships and
commitments, written or oral, of the Asset Sale Companies listed on Schedule
1.14.
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1.15. Dispute.
"Dispute" shall have the meaning set forth in Section 8.14 hereof.
1.16. Governmental Authority.
"Governmental Authority" shall mean any governmental, judicial,
legislative, executive, administrative or regulatory authority of the United
States, or of any foreign, state or local government or any subdivision, agency,
commission, office, authority or bureau thereof or any quasi-governmental entity
or authority of any nature.
1.17. Indemnification and Guaranty Agreement.
"Indemnification and Guaranty Agreement" shall mean the agreement by and
among PCC Parent, PCC, Buyer and Buyer's Parent substantially in the form of
Exhibit C attached hereto.
1.18. Knowledge of PCC.
"Knowledge of PCC" shall mean, for the individuals listed on Schedule 1.18,
any such individual's actual knowledge and what any such individual should have
known after reasonable inquiry within the scope of that individual's job
responsibilities.
1.19. Law.
"Law" and "Laws" shall mean any applicable United States or foreign,
federal, state, local or other law or governmental requirement of any kind, and
the rules, regulations and orders promulgated thereunder.
1.20. Lien.
"Lien" shall mean any lien, encumbrance, mortgage, charge, claim,
restriction, pledge, security interest or imposition of any kind.
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1.21. Liability.
"Liability" shall mean any liability or obligation (whether known or
unknown, whether asserted or unasserted, whether absolute or contingent, whether
liquidated or unliquidated and whether due or to become due), including any
liability for Taxes. Liabilities shall mean one or more items of Liability.
1.22. Material Adverse Effect.
"Material Adverse Effect" shall mean any event, change or occurrence that
individually, or together with any other event, change or occurrence, has a
material adverse impact on the Business, taken as a whole, without regard to the
duration of such material adverse impact.
1.23. Ordinary Course of Business.
"Ordinary Course of Business" means the ordinary course of business
consistent with past custom and practice (including with respect to quantity and
frequency). 1.24. PCC.
"PCC" shall have the meaning given to it in the preamble to this Agreement.
1.25. PCC Closing Certificate.
"PCC Closing Certificate" shall mean the certificate of PCC substantially
in the form of Exhibit D attached hereto.
1.26. PCC Group.
"PCC Group" shall have the meaning given to it in Section 1.34.
1.27. PCC Parent.
"PCC Parent" shall mean The Pittston Company, a Virginia corporation.
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1.28. Permitted Liens.
"Permitted Liens" shall mean those Liens affecting the Purchased Assets
that are listed on Schedule 1.28.
1.29. Person.
"Person" shall mean any individual, corporation, general or limited
partnership, limited liability company, joint venture, estate, trust,
association, organization, labor union or other entity or Governmental
Authority.
1.30. Pre-Closing Periods.
"Pre-Closing Periods" shall mean any taxable period ending on or before the
Closing Date.
1.31. Purchase Price.
"Purchase Price" shall mean $2,000,000.
1.32. Purchased Assets.
"Purchased Assets" shall mean the rights of the Asset Sale Companies with
respect to the Contracts, other than the rights to payment for any coal that has
been delivered or shipped prior to Closing Date to any customer, whether or not
invoiced.
1.33. Related Persons.
"Related Persons" shall mean related persons as that term is defined in
Section 9701(c)(2) of the Coal Act, except that it shall not include successors
in interest.
1.34. Retained Liabilities.
"Retained Liabilities" shall mean (a) all Liability of each Asset Sale
Company for any coal that has been shipped or delivered prior to Closing Date to
any customer, whether or not invoiced, (b) (1) all Liabilities, if any, of the
Asset Sale Companies and its Related Persons (collectively, the "PCC Group")
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under the Coal Act, and (2) all Liabilities, if any, of the PCC Group under any
post-Closing amendments to the Coal Act for (i) beneficiaries eligible under the
Coal Act who are assigned to a member of the PCC Group or for whom a member of
the PCC Group is required to provide or pay for medical benefits pursuant to
Sections 9711 or 9712 of the Coal Act or (ii) death benefit premiums or
unassigned beneficiary premiums (as those terms are used in Sections 9704(c) and
9704(d) of the Coal Act) for beneficiaries eligible under the Coal Act, that are
assessed against any member of the PCC Group; provided, for the avoidance of
doubt, that the Liabilities retained pursuant to (b)(1) and (b)(2) above shall
not be affected by Buyer or any of its Affiliates being identified under the
Coal Act or any post-Closing amendments thereto as a successor, successor in
interest or "Related person" under the Coal Act or any post-Closing amendments
thereto to any member of the PCC Group solely as a result of Buyer's purchase of
the Purchased Assets and (c) all Liabilities under the contracts, agreements,
personal and real property leases, relationships and commitments of the Asset
Sale Companies listed on Schedule 1.34(c).
1.35. Tax.
"Tax" or "Taxes" mean any federal, state, local, or foreign income, gross
receipts, license, payroll, employment, excise, severance, stamp, occupation,
premium, windfall profits, environmental (including taxes under Code ss.59A),
custom duties, capital stock, franchise, profits, withholding, social security
(or similar), unemployment, disability, real property, personal property, sales,
use, transfer, registration, value added, alternative or add-on minimum,
estimated, reclamation fees or other tax of any kind whatsoever, including any
interest, penalty, or addition thereto, whether disputed or not, but shall not
include, for purposes of this Agreement only, Liabilities under the Coal Act, of
whatever nature and regardless of how denominated.
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1.36. Tax Return.
"Tax Return" shall mean any original or amended report, return,
declaration, claim for refund, statement, document, schedule, attachment or
other information supplied or required to be supplied to a Governmental
Authority with respect to Taxes, including any return of an affiliated, combined
or unitary group.
ARTICLE II
PURCHASE AND SALE OF ASSETS
2.1. Transfer of Assets.
On the Closing Date, PCC (on behalf of the Asset Sale Companies) shall
cause to be sold, conveyed, transferred, assigned, and delivered to Buyer, and
Buyer shall acquire, the Purchased Assets. At the Closing, subject to the terms
and conditions of this Agreement, PCC agrees to: (i) cause all rights in the
Purchased Assets to be transferred and delivered to Buyer; and (ii) perform its
obligations under this Agreement to be performed at or before Closing. In full
payment for the Purchased Assets, Buyer shall: (i) assume the Assumed
Liabilities; (ii) pay to PCC (which shall receive such amounts on behalf of the
Asset Sale Companies) the Purchase Price by wire transfer of cash or other
immediately available funds; and (iii) perform its obligations under this
Agreement to be performed at or before Closing. Buyer shall not assume or have
any responsibility with respect to any Liability of PCC Parent, PCC or the Asset
Sale Companies that is not an Assumed Liability.
2.2. Assignment and Assumption Agreements and Other Documents.
At the Closing, PCC shall cause each of the Asset Sale Companies to: (i)
execute and deliver to Buyer the Assignment and Assumption Agreements and such
other documents as may be necessary to convey to Buyer the Purchased Assets; and
(ii) perform its obligations under the Agreement to be performed at or before
the Closing.
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2.3. Assumption of Liabilities.
At the Closing, Buyer shall execute and deliver to PCC the Assignment and
Assumption Agreements and such other documents and instruments as may be
necessary for Buyer to assume all of the Assumed Liabilities. Buyer shall not
assume or have any responsibility, however, with respect to any Liability of PCC
Parent, PCC or the Asset Sale Companies that is not an Assumed Liability.
2.4. Proration of Liabilities; Payment Reimbursement.
PCC and Buyer shall cooperate with each other to provide for payments due
with respect to the Assumed Liabilities. If, following the Closing, Buyer or any
of its post-Closing Affiliates receives any payment in any form with respect to
any Asset Sale Company (other than the Purchased Assets) that should have been
paid to PCC or its Affiliates, Buyer shall forward, or shall cause such
post-Closing Affiliate to forward, such payment to PCC within five business days
of receipt. If, following the Closing, PCC or any of its post-Closing Affiliates
receives any payment in any form with respect to the Purchased Assets that
should have been paid to Buyer or its Affiliates, PCC shall forward, or shall
cause such post-Closing Affiliate to forward, such payment to Buyer within five
business days of receipt.
2.5. Indemnification and Guaranty Agreement.
At the Closing, PCC, PCC Parent, Buyer's Parent and Buyer shall execute and
deliver the Indemnification and Guaranty Agreement.
2.6. Additional Documents.
At the Closing, PCC and Buyer shall, and PCC shall cause the Asset Sale
Companies to, execute and deliver all such other documents or instruments
necessary or appropriate to effect the transactions contemplated by this
Agreement, including the documents provided in this Article II.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PCC
PCC hereby represents and warrants to Buyer that the statements contained
in this Article III are correct and complete, except as set forth in the
Schedules delivered by PCC to Buyer in connection with this Agreement. The
Schedules are arranged in paragraphs corresponding to the lettered and numbered
paragraphs contained in this Article III.
3.1. Incorporation.
PCC and each of the Asset Sale Companies are corporations duly organized,
validly existing and in good standing under the Laws of the respective state or
commonwealth of each such company's incorporation. PCC and each of the Asset
Sale Companies that is not a corporation incorporated under the Laws of Virginia
are duly qualified or licensed to transact business as a foreign corporation in
Virginia and are in good standing under the Laws of Virginia. Set forth on
Schedule 3.1 is the name of each state or other jurisdiction in which each such
company has either paid taxes or had an office in the three years prior to the
date of this Agreement.
3.2. Execution, Delivery and Performance.
The execution, delivery and performance by PCC of this Agreement and by PCC
and the applicable Asset Sale Company of each other agreement or instrument to
which it is a party executed in connection herewith or delivered pursuant hereto
and the consummation of the transactions contemplated herein and therein will
not, with or without the giving of notice or the passage of time, or both: (i)
conflict with, or result in a violation or breach of, or a default, right to
accelerate, right to exercise any remedy or loss of rights under, or result in
10
the creation of any Lien (other than Permitted Liens) under or pursuant to, any
provision of PCC's or any Asset Sale Company's Articles of Incorporation or
Bylaws or of any material franchise, mortgage, deed of trust, Lien, lease,
license, instrument, agreement, consent, approval, waiver or understanding to
which PCC or any Asset Sale Company is a party or by which any Asset Sale
Company is bound, or any Law or any order, judgment, writ, injunction or decree
to which PCC or any Asset Sale Company is a party or by which PCC, any Asset
Sale Company or the Purchased Assets may be bound or affected; (ii) require the
approval, consent or authorization of, prior notice to, or filing or
registration with any Governmental Authority or contravene, conflict with or
result in a violation of any of the terms or requirements of, or give any
Governmental Authority the right to revoke, withdraw, suspend, cancel or
terminate any authorization issued by a Governmental Authority that is held by
PCC or the Asset Sale Companies or that otherwise relates to the Purchased
Assets; or (iii) give any Governmental Authority or other Person the right to
challenge any of the transactions contemplated hereunder or exercise any remedy
or obtain any relief under any Law to which PCC or any Asset Sale Company is
subject.
3.3. Authorization.
PCC has full power and authority to enter into and deliver this Agreement
and to perform its obligations hereunder and each of PCC and the Asset Sale
Companies has full power and authority to enter into and deliver each other
agreement or instrument to which it is a party executed in connection herewith
and delivered pursuant hereto and to perform its obligations thereunder. PCC's
execution, delivery and performance of this Agreement and the execution,
delivery and performance of all other agreements and instruments by PCC and each
of the Asset Sale Companies in connection herewith and delivered pursuant hereto
and the transactions contemplated hereby have been duly authorized by all
requisite corporate action on the part of PCC and each of the Asset Sale
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Companies. This Agreement and all other agreements or instruments executed by
PCC or any of the Asset Sale Companies in connection herewith and delivered by
PCC or any of the Asset Sale Companies pursuant hereto have been duly executed
and delivered by PCC or such Asset Sale Companies and this Agreement and all
other agreements and instruments executed by PCC or any of the Asset Sale
Companies in connection herewith and delivered by PCC or any of the Asset Sale
Companies pursuant hereto constitute the legal, valid and binding obligation of
PCC or such Asset Sale Company, as the case may be, enforceable in accordance
with their respective terms (subject to any applicable bankruptcy, insolvency,
reorganization, moratorium or other similar Laws affecting generally the
enforcement of creditors' rights).
3.4. Contracts.
(a) PCC has made available to Buyer copies of all of the written
Contracts, or a written summary setting forth the terms and
conditions where no copies exist, including all amendments,
modifications, waivers and elections applicable thereto.
(b) As to the Asset Sale Companies party thereto: (i) the Contracts
are valid and binding, enforceable in accordance with their
respective terms (subject to any applicable bankruptcy,
insolvency, reorganization, moratorium or other similar Laws
affecting generally the enforcement of creditors' rights), and
are in full force and effect; (ii) the consummation of the
transactions contemplated herein will not, with or without the
giving of notice or the passage of time, or both, conflict with,
or result in a violation or breach of, or a default, right to
accelerate, right to exercise any remedy or loss of rights under
the Contracts; (iii) no Asset Sale Company, nor to the Knowledge
of PCC, any other party is in material breach or default, and no
event has occurred that, with notice or lapse of time, would
constitute a breach or default, or permit termination,
modification or acceleration, under the Contracts; and (iv) no
Asset Sale Company, nor to the Knowledge of PCC, any other party
has repudiated any provision of the Contracts.
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(c) Schedule 3.4(c) sets forth the consents and approvals of third
parties and Governmental Authorities required to be obtained as a
result of the transactions contemplated by this Agreement.
3.5. Litigation; Claims.
Schedule 3.5 lists all claims, legal actions, suits, litigation,
arbitrations, disputes, investigations, proceedings by or before any
Governmental Authority involving more than $100,000 and all orders, decrees or
judgments, now pending or in effect, or, to the Knowledge of PCC, threatened or
contemplated, against or affecting the Asset Sale Companies, the Purchased
Assets, or the consummation of the transactions contemplated by this Agreement,
except to the extent involving Taxes for Pre-Closing Periods.
3.6. No Broker.
None of the Asset Sale Companies, PCC or the PCC Parent has had any
dealings, negotiations or communications with or retained any broker or other
intermediary in connection with the transactions contemplated by this Agreement
and none of the foregoing is committed to any Liability for any brokers' or
finders' fees or any similar fees in connection with the transactions
contemplated hereby, other than Rothschild Inc., who shall be compensated solely
by PCC or an Affiliate of PCC.
3.7. Undisclosed Liabilities.
As it may affect the Purchased Assets, none of the Asset Sale Companies has
any material Liability (and there is no basis for any present or future action,
13
suit, proceeding, hearing, investigation, charge, complaint, claim, or demand
against any of them giving rise to any Liability), except for the Liabilities
represented by the Contracts.
3.8. Legal Compliance.
As it may affect the Purchased Assets, each of the Asset Sale Companies and
their respective predecessors and Affiliates has complied in all material
respects with all Laws (including rules, regulations, codes, plans, injunctions,
judgments, orders, decrees, rulings and charges thereunder) of federal, state,
local and foreign governments (and all agencies thereof) and no material action,
suit, proceeding, hearing, investigation, charge, complaint, claim, demand or
notice has been filed or commenced against any of them alleging any failure so
to comply.
3.9. Transactions with Affiliates.
The Contracts do not include any Liability between any Asset Sale Company
and any Affiliate of such Asset Sale Company.
3.10. Disclosure.
The representations and warranties contained in this Article III do not
contain any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements and information contained in this
Article III not misleading.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to PCC that:
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4.1. Organization.
Buyer is a duly formed limited liability company, validly existing and in
good standing under the Laws of the State of Delaware.
4.2. Execution, Delivery and Performance.
The execution, delivery and performance of this Agreement and each other
agreement or instrument executed in connection herewith or delivered pursuant
hereto and the consummation of the transactions contemplated herein and therein
will not, with or without the giving of notice or the passage of time, or both,
(i) conflict with, or result in a violation or breach of, or a default, right to
accelerate or loss of rights under, or result in the creation of any Lien, under
or pursuant to, any provision of Buyer's organizational documents or of any
franchise, mortgage, deed of trust, lease, license, instrument, agreement,
consent, approval, waiver or understanding, any Law, or any finding, order,
judgment, writ, injunction or decree to which Buyer is a party or by which Buyer
or its respective assets may be bound or affected; or (ii) require the approval,
consent or authorization of, or prior notice to, filing with or registration
with, any Governmental Authority, or any other Person or entity.
4.3. Authorization.
Buyer has full power and authority to enter into and deliver this
Agreement, and each other agreement or instrument (to which it is a party)
executed in connection herewith or delivered pursuant hereto and to perform its
obligations hereunder and thereunder. Buyer's execution, delivery and
performance of this Agreement and all other agreements and instruments executed
in connection herewith or delivered pursuant hereto and the transactions
contemplated hereby have been duly authorized by all requisite action. This
Agreement and all other agreements or instruments executed by Buyer in
connection herewith or delivered by Buyer pursuant hereto have been duly
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executed and delivered by Buyer and this Agreement and all other agreements and
instruments executed by Buyer in connection herewith or delivered by Buyer
pursuant hereto constitute Buyer's legal, valid and binding obligation,
enforceable in accordance with their respective terms (subject to any applicable
bankruptcy, insolvency, reorganization, moratorium or other similar Laws
affecting generally the enforcement of creditors' rights).
4.4. No Broker.
Buyer has had no dealings, negotiations or communications with any broker
or other intermediary in connection with the transactions contemplated by this
Agreement nor is it committed to any Liability for any brokers' or finders' fees
or any similar fees in connection with the transactions contemplated hereby.
4.5. Financing.
Buyer will have available to it, at the Closing, financial resources
sufficient to consummate the transactions contemplated by this Agreement.
4.6. Disclosure.
The representations and warranties contained in this Article IV do not
contain any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements and information contained in this
Article IV not misleading.
ARTICLE V
CERTAIN COVENANTS
5.1. Operation in Ordinary Course.
Except as provided in this Agreement, between the date of this Agreement
and the Closing, PCC shall cause each of the Asset Sale Companies, in relation
to the Purchased Assets, to: (i) carry on its business in the Ordinary Course of
Business; (ii) use commercially reasonable efforts to preserve intact its
16
current business organization and properties until the Closing Date, and
maintain the relations and good will with its suppliers, customers, landlords,
creditors, agents, and others having business relationships with such Asset Sale
Company; (iii) not enter into any contract modification or other obligation
binding upon the Purchased Assets or an expenditure, purchase, sale, cost or
commitment in excess of $100,000, except such coal sales agreements pursuant to
which all obligations will be satisfied prior to Closing; and (iv) report
regularly to Buyer concerning the status of the business and finances of such
Asset Sale Company.
5.2. Compliance with Law.
Between the date of this Agreement and the Closing, each of the Asset Sale
Companies shall comply in all material respects with all Laws and with all
orders of any Governmental Authority.
5.3. Cooperation.
Subject to the terms and conditions herein provided, each of PCC and Buyer
agrees to use its commercially reasonable efforts to take, or cause to be taken,
all action, and to do, or cause to be done, all things necessary, proper and
advisable under Law, to consummate and make effective the transactions
contemplated by this Agreement. In case at any time after the Closing Date any
further action is necessary or desirable to carry out the purposes of this
Agreement, PCC and Buyer will, and PCC will cause the Asset Sale Companies to,
execute any additional instruments reasonably necessary to consummate the
transactions contemplated hereby.
17
5.4. Notices and Consents.
PCC and Buyer each will use their commercially reasonable efforts to obtain
consents of all Governmental Authorities and other third parties necessary to
the consummation of the transactions contemplated by this Agreement. PCC shall
have responsibility for providing any notices to third parties that may be
required by the transactions contemplated by this Agreement and for obtaining,
or causing to be obtained, at its sole cost and expense, the consents listed on
Schedule 5.4(a) and Buyer shall have responsibility for obtaining, at its sole
cost and expense, all consents listed on Schedule 5.4(b), with the other party
in each case using its commercially reasonable efforts to assist the responsible
party in obtaining such consents.
5.5. Publicity.
All general notices, releases, statements and communications to any
employees, suppliers, distributors and customers of the Asset Sale Companies, to
the general public and to the press relating to the transactions contemplated by
this Agreement shall be made only at such times and in such manner as may be
mutually agreed upon by PCC and Buyer; provided, however, that either party
hereto (or, in the case of PCC, the PCC Parent) shall be entitled to make a
public announcement of the foregoing if: (a) in the opinion of its legal
counsel, such announcement is required to comply with Law or any listing
agreement with any national securities exchange or inter-dealer quotation
system; and (b) such disclosing party gives a reasonable period of notice and
opportunity to comment to the other party hereto of its intention to make such
public announcement; provided, that, failure to comment within 24 hours of
receipt of such notice shall be deemed a waiver of the opportunity to comment;
and provided, further, that nothing in this Section 5.5 shall operate to
prohibit any Asset Sale Company or Buyer from communicating, after the Closing
18
Date, with their respective suppliers, distributors, customers and Governmental
Authorities the fact that the transaction has occurred or to employees regarding
their employment or the terms and conditions thereof, the operation of the
Purchased Assets or matters necessarily related thereto.
5.6. Exclusivity.
PCC will not (nor will it cause or permit any of the Asset Sale Companies
to) (i) solicit, initiate or encourage the submission of any proposal or offer
from any Person relating directly or indirectly to the acquisition of the
Purchased Assets, or any portion thereof, or (ii) participate in any discussions
or negotiations regarding, furnish any information with respect to, assist or
participate in, or facilitate in any other manner, any effort or attempt by any
Person to do or seek any of the foregoing. PCC will notify Buyer immediately if
any Person makes any proposal, offer, inquiry or contact with respect to any of
the foregoing.
5.7. Access.
At or prior to the Closing Date, PCC will permit (and will cause each of
the Asset Sale Companies to permit) representatives of Buyer to have full access
at all reasonable times, and in a manner so as not to interfere with the normal
business operations of the Asset Sale Companies, to all premises, properties,
personnel, books, records (including Tax records), contracts and documents of or
pertaining to each of the Asset Sale Companies as related to the Purchased
Assets. Copies of and access to accounting records, ledgers and other pertinent
documents or work papers related to the Purchased Assets will be made available
to Buyer at all reasonable times, and in a manner so as not to interfere with
the normal business operations of the Asset Sale Companies, upon request.
19
5.8. Notice of Developments.
Each party will give prompt written notice to the other party of any
material adverse development causing a breach of any of its own representations
and warranties in Article III and Article IV above. No disclosure by any party
pursuant to this Section 5.8, however, shall be deemed to amend or supplement
the Schedules to such representations and warranties or to prevent or cure any
misrepresentation, breach of warranty or breach of covenant.
5.9. Further Assurances.
The parties shall cooperate in a commercially reasonable manner with each
other and with their respective representatives in connection with any steps
required to be taken as part of their respective obligations under this
Agreement, and shall (a) furnish upon request to each other such further
information; (b) execute and deliver to each other such other documents; and (c)
do such other acts and things, all as the other party may reasonably request for
the purpose of carrying out the intent of this Agreement and the transactions
contemplated.
ARTICLE VI
CONDITIONS PRECEDENT TO CLOSING
6.1. Conditions Precedent to Each Party's Obligations.
The respective obligations of each party to consummate the transactions
contemplated by this Agreement are subject to the satisfaction at or prior to
the Closing Date of the following conditions precedent:
(a) no action, suit, proceeding, order, decree or injunction shall
have been commenced, threatened or entered by or before any
Governmental Authority that remains in force and that (i)
prohibits, seeks to prohibit, or imposes or seeks substantial
20
damages in connection with, the consummation of the transactions
contemplated by this Agreement, (ii) seeks or imposes relief that
causes or would cause any of the transactions contemplated by
this Agreement to be rescinded following consummation, or (iii)
affects adversely the right of Buyer to own the Purchased Assets
or to operate the Business on or after the Closing Date;
(b) PCC Parent, PCC, Buyer and Buyer's Parent shall have executed and
delivered to each other party thereto the Indemnification and
Guaranty Agreement and any other documentation required by such
agreement, in form and substance as set forth in Exhibit C
attached hereto and the same shall be in full force and effect;
(c) all other transactions pursuant to which Buyer or any of its
Affiliates acquire assets related to the Business shall have been
consummated prior to or simultaneously with the transactions
contemplated by this Agreement;
(d) PCC and Buyer shall have executed and delivered to each other all
such other documents or instruments necessary or appropriate to
effect the transactions contemplated by this Agreement; and
(e) PCC shall have obtained, or caused to have been obtained, the
consents listed in Schedule 6.1(e)(i) and PCC shall have provided
such payments as may be reasonably required to obtain all such
consents. Buyer shall have obtained, or caused to have been
obtained, the consents listed in Schedule 6.1(e)(ii) and Buyer
shall have provided such payments, guarantees and/or assurances
as may be reasonably required to obtain all such consents.
21
6.2. Conditions Precedent to Obligations of Buyer.
The obligations of Buyer to consummate the transactions contemplated by
this Agreement are subject to the satisfaction or waiver at or prior to the
Closing Date of the following conditions precedent:
(a) all of the representations and warranties of PCC set forth in
this Agreement or in any Exhibit, Schedule or document delivered
pursuant hereto, without regard to any qualification or
limitation with respect to materiality (whether by reference to
"Material Adverse Effect" or otherwise), shall be true and
correct in all respects as of the date hereof and at and as of
the Closing Date with the same effect as though such
representations and warranties were made at and as of the Closing
unless the aggregate failure of such representations or
warranties to be true and correct does not have a Material
Adverse Effect; provided that if a representation or warranty is
expressly made only as of a specific date, it need only be true
and correct in all respects as of such date, and Buyer shall have
received the PCC Closing Certificate required by Section 6.2(g)
below dated as of the Closing Date executed by PCC to such
effect;
(b) all of the covenants and obligations that PCC is required to
perform or to comply with pursuant to this Agreement at or prior
to the Closing Date shall have been duly performed and complied
with in all material respects;
(c) all proceedings and actions, corporate or other, to be taken by
PCC or the Asset Sale Companies in connection with the
transactions contemplated by this Agreement and all documents
incident thereto, including all actions necessary to authorize
the execution, delivery and performance of this Agreement and the
transactions contemplated hereby, shall have been taken and shall
be reasonably satisfactory in form and substance to Buyer and
Buyer's counsel;
22
(d) PCC shall have, and shall have caused the Asset Sale Companies to
have, executed and delivered the Assignment and Assumption
Agreements and such other documents as may be necessary to convey
to Buyer the Purchased Assets;
(e) between the date of this Agreement and the Closing Date, there
shall not have been a change, event or occurrence that,
individually, or together with any other change, event or
occurrence, has had or could reasonably be expected to have a
Material Adverse Effect;
(f) Buyer shall have received an opinion of counsel to PCC addressed
to Buyer substantially in the form of Exhibit E; and
(g) Buyer shall have received an executed copy of the PCC Closing
Certificate.
6.3. Conditions Precedent to Obligations of PCC.
The obligation of PCC to consummate and cause the consummation of the
transactions contemplated by this Agreement is subject to the satisfaction or
waiver at or prior to the Closing Date of the following conditions precedent:
(a) all of the representations and warranties of Buyer set forth in
this Agreement or in any Exhibit, Schedule or document delivered
pursuant hereto, without regard to any qualification or
limitation with respect to materiality, shall be true and correct
in all respects as of the date hereof and at and as of the
Closing Date with the same effect as though such representations
and warranties were made at and as of the Closing unless the
aggregate failure of such representations or warranties to be
23
true and correct does not have a material adverse effect on
Buyer's ability to consummate the transactions contemplated by
this Agreement or fulfill its post-Closing obligations hereunder;
provided that if a representation or warranty is expressly made
only as of a specific date, it need only be true and correct in
all respects as of such date, and PCC shall have received Buyer's
Closing Certificate required by Section 6.3(h) below dated as of
the Closing Date executed by Buyer to such effect;
(b) all of the covenants and obligations that Buyer is required to
perform or to comply with pursuant to this Agreement at or prior
to the Closing Date shall have been duly performed and complied
with in all material respects;
(c) all proceedings and actions, corporate or other, to be taken by
Buyer in connection with the transactions contemplated by this
Agreement, and all documents incident thereto, including all
actions necessary to authorize the execution, delivery and
performance of this Agreement and the transactions contemplated
hereby, shall have been taken and shall be reasonably
satisfactory in form and substance to PCC and its counsel;
(d) PCC shall have received, on behalf of the Asset Sale Companies,
the Purchase Price by wire transfer of cash or other immediately
available funds;
(e) Buyer shall have executed and delivered the Assignment and
Assumption Agreements and such other documents as may be
necessary for Buyer to assume all of the Assumed Liabilities;
(f) between the date of this Agreement and the Closing Date, there
shall not have been a change, event or occurrence that,
individually, or together with any other change, event or
occurrence, has had or could reasonably be expected to have a
Material Adverse Effect;
24
(g) PCC shall have received an opinion of counsel to Buyer addressed
to PCC substantially in the form of Exhibit F; and
(h) PCC shall have received an executed copy of Buyer's Closing
Certificate.
ARTICLE VII
TERMINATION
7.1. Termination.
This Agreement may be terminated prior to the Closing Date only as follows:
(a) by mutual written consent of PCC and Buyer;
(b) by either PCC or Buyer, if the Closing Date shall not have
occurred prior to the close of business on December 31, 2002 or
such later date as the parties may agree in writing (provided,
that the right to terminate this Agreement under this Section
7.1(b) shall not be available to any party whose failure to
fulfill any obligation under this Agreement has been the cause,
in whole or in part, of, or has resulted in, the failure of the
conditions in Article VI to be satisfied and the Closing Date to
occur on or before such date);
(c) by PCC or Buyer if an action, suit, or proceeding, shall have
been commenced or threatened by or before any Governmental
Authority, or any order, decree or injunction shall have been
entered therein, that (i) prohibits, seeks to prohibit, or
imposes or seeks substantial damages in connection with, the
consummation of the transactions contemplated by this Agreement,
(ii) seeks or imposes relief that causes or would cause any of
the transactions contemplated by this Agreement to be rescinded
following consummation, or (iii) affects adversely the right of
Buyer to own the Purchased Assets or to operate the Business;
25
(d) by Buyer if (i) the representations of PCC contained in this
Agreement are not true and correct in all material respects as if
made at and as of that time, except for failures to be true and
correct that are capable of being and are cured within fifteen
(15) days after written notice from Buyer to PCC of such failure;
or (ii) PCC has failed to comply materially with its respective
obligations under this Agreement, except for failures to comply
that are capable of being and are cured within fifteen (15) days
after written notice from Buyer to PCC of such failure; or
(e) by PCC if (i) the representations of Buyer contained in this
Agreement are not true and correct in all material respects as if
made at and as of that time, except for failures to be true and
correct that are capable of being and are cured within fifteen
(15) days after written notice from PCC to Buyer of such failure;
or (ii) Buyer has failed to comply materially with its
obligations under this Agreement, except for failures to comply
that are capable of being and are cured within fifteen (15) days
after written notice from the PCC to Buyer of such failure.
7.2. Effect of Termination.
If this Agreement is terminated pursuant to Article VII hereof, all further
obligations of the parties under or pursuant to this Agreement shall terminate
without further Liability of either party to the other except: (a) as set forth
in Section 8.4; and (b) for breaches of representations, warranties, or
covenants or for fraud. PCC and Buyer hereby agree that the provisions of this
Section 7.2 and of Section 8.4 shall survive any termination of this Agreement
pursuant to the provisions of this Article VII.
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ARTICLE VIII
MISCELLANEOUS
8.1. Entire Agreement.
This Agreement, the documents referred to herein and to be delivered
pursuant hereto and any other agreement entered into contemporaneously with this
Agreement among PCC, PCC Parent, Buyer and Buyer's Parent or the Affiliates of
any of them constitute the entire agreement between the parties pertaining to
the subject matter hereof, and supersede all prior agreements, understandings,
negotiations and discussions of the parties, whether oral or written, and there
are no warranties, representations or other agreements between the parties in
connection with the subject matter hereof, except as specifically set forth
herein or therein. 8.2. Amendment.
This Agreement may be amended by an instrument in writing and signed on
behalf of all of the parties hereto at any time.
8.3. Extension; Waiver.
At any time prior to the Closing Date, the parties may (i) extend the time
for the performance of any of the obligations or other acts of the other parties
hereto, (ii) waive any inaccuracies in the representations and warranties
contained herein or in any document, certificate or writing delivered pursuant
hereto or (iii) waive compliance with any of the agreements or conditions
contained herein, other than the conditions contained in Section 6.1(a) hereof
as it relates to the entry of an order in any proceeding by or before a
Governmental Authority. Any agreement on the part of any party to any such
extension or waiver shall be valid only if set forth in an instrument in writing
and signed on behalf of such party.
27
8.4. Expenses.
Whether or not the transactions contemplated by this Agreement are
consummated, each of the parties hereto shall pay the fees and expenses of their
respective counsel, investment bankers, financial advisors, accountants and
other experts and the other expenses incident to the negotiation and preparation
of this Agreement and consummation of the transactions contemplated hereby.
8.5. Bulk Sales Waiver.
Buyer hereby waives compliance with all applicable bulk sales Laws.
8.6. Governing Law.
This Agreement shall be construed and interpreted according to the Laws of
the Commonwealth of Virginia, without regard to the conflicts of Law rules
thereof.
8.7. Assignment.
This Agreement and each party's respective rights hereunder may not be
assigned at any time except as expressly set forth herein without the prior
written consent of the other party, provided that PCC may assign its rights
hereunder to any Affiliate of PCC after the Closing Date without the consent of
Buyer and Buyer may assign its rights hereunder to any Affiliate of Buyer prior
to, at or after the Closing Date without the consent of PCC and, further
provided, that nothing in this Agreement shall prevent a successor in interest
to either party from enforcing the provisions of this Agreement.
8.8. Notices.
All communications, notices and disclosures required or permitted by this
Agreement shall be in writing and shall be deemed to have been given when
delivered personally or by messenger or by overnight delivery service, or within
five days of being mailed by registered or certified United States mail, postage
28
prepaid, return receipt requested, in all cases addressed to the person for whom
it is intended at his address set forth below or to such other address as a
party shall have designated by notice in writing to the other party in the
manner provided by this Section 8.8: If to PCC: Pittston Coal Company 448 N.E.
Main Street P.O. Box 5100 Lebanon, Virginia 24266 Attention: President
With a copy to: Pittston Coal Company
c/o The Pittston Company
1801 Bayberry Court
P.O. Box 18100
Richmond, Virginia 23226-8100
Attention: General Counsel
And a copy to: Hunton & Williams
Riverfront Plaza, East Tower
951 East Byrd Street
Richmond, Virginia 23219
Attention: Louanna O. Heuhsen, Esq.
If to Buyer: Alpha Coal Sales Co., LLC
c/o Alpha Natural Resources, LLC
406 West Main Street
Abingdon, Virginia 24212
Attention: Vice President
With a copy to: First Reserve Corporation
411 West Putnam, Suite 109
Greenwich, Connecticut 06830
Attention: Alex T. Krueger
First Reserve Corporation
1801 California Street, Suite 4110
Denver, Colorado 80202
Attention: Thomas R. Denison
Bartlit Beck Herman Palenchar & Scott
1899 Wynkoop Street, Suite 800
Denver, Colorado 80202
Attention: James L. Palenchar, Esq.
29
8.9. Counterparts; Headings.
This Agreement may be executed in several counterparts, each of which shall
be deemed an original, but such counterparts shall together constitute but one
and the same Agreement. The Table of Contents and Article and Section headings
in this Agreement are inserted for convenience of reference only and shall not
constitute a part hereof.
8.10. Interpretation; Construction.
(a) Unless the context requires otherwise, all words used in this
Agreement in the singular number shall extend to and include the
plural, all words in the plural number shall extend to and
include the singular and all words in any gender shall extend to
and include all genders.
(b) This Agreement has been fully negotiated by the parties hereto
and shall not be construed by any Governmental Authority against
either party as the drafting party.
8.11. Severability.
If any provision of this Agreement is held invalid or unenforceable by any
court of competent jurisdiction, the other provisions of this Agreement will
remain in full force and effect. Any provision of this Agreement held invalid or
unenforceable only in part or degree will remain in full force and effect to the
extent not held invalid or unenforceable.
8.12. No Reliance.
No third party is entitled to rely on any of the representations,
warranties and agreements contained in this Agreement and PCC and Buyer assume
no Liability to any third party because of any reliance on the representations,
warranties and agreements of PCC and Buyer contained in this Agreement, other
30
than Section 5.5 hereof, which are intended to be for the benefit of the Persons
expressly covered thereby and may be enforced by such Persons.
8.13. Retention of and Access to Records.
After the Closing Date, Buyer shall retain for a period consistent with
Buyer's record retention policies and practices those books and records relating
to the Asset Sale Companies delivered to Buyer. Buyer also shall provide to PCC
and its Affiliates reasonable access thereto, during normal business hours and
on at least three days' prior written notice, to enable them to prepare
financial statements or Tax Returns or deal with Tax audits or litigation. Buyer
shall deliver to PCC at least thirty days written notice prior to the
destruction or other disposal of any such books and records. PCC and its
Affiliates may elect to take delivery of any such books and records that Buyer
intends to destroy or otherwise dispose of and to copy any such books and
records that Buyer intends to keep, all at their own expense.
8.14. Arbitration.
Any dispute, controversy or claim arising out of or relating to this
Agreement (a "Dispute") shall be decided by binding arbitration in accordance
with the commercial arbitration rules of the American Arbitration Association.
PCC and Buyer shall jointly select one arbitrator. If the two parties shall fail
to select an arbitrator within fourteen calendar days after arbitration is
requested, then such arbitrator shall be selected by the American Arbitration
Association or any successor thereto upon application of either party. No
Dispute shall be consolidated in any arbitration with any dispute, claim or
controversy of any other party. The arbitration shall be conducted in Roanoke,
Virginia, and any court having jurisdiction thereof may immediately issue
judgment on the arbitration award. The parties agree that the arbitration
provided for in this Section 8.14 shall be the exclusive means to resolve all
Disputes.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
PITTSTON COAL COMPANY
By: /s/ Michael D. Brown
-------------------------------
Name: Michael D. Brown
Title: Vice President - Development
and Technical Resources
ALPHA COAL SALES CO., LLC
By: /s/ Scott Kroh
---------------------------------------
Name: Scott Kroh
Title: President
32
SCHEDULE 1.3
ASSET SALE COMPANIES
Clinchfield Coal Company, a Virginia corporation
Pittston Coal Sales Corp., a Virginia corporation
Motivation Coal Company, a Virginia corporation
A-1