Exhibit 2.4
COOPERATION AGREEMENT
BY AND BETWEEN
PITTSTON COAL COMPANY
AND
DICKENSON-RUSSELL COAL COMPANY, LLC
December 13, 2002
Table of Contents
Page
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ARTICLE I DEFINITIONS............................................................................................2
1.1. Acquisition Agreement.................................................................................2
1.2. Actuarial Firm........................................................................................2
1.3. Affiliates, Successors, Assigns, Lessees or Contractors...............................................2
1.4. Agreement.............................................................................................3
1.5. Amended Medical Plan..................................................................................3
1.6. Amended Plan Projected Cost...........................................................................3
1.7. Classified Plan Expected Cost.........................................................................3
1.8. Closing Layoff........................................................................................3
1.9. Coal Act Liabilities..................................................................................3
1.10. Collective Bargaining Agreement Liabilities...........................................................3
1.11. Communications........................................................................................4
1.12. Employee Related Liabilities..........................................................................4
1.13. D-R...................................................................................................4
1.14. Participants..........................................................................................4
1.15. PCC...................................................................................................4
1.16. Post-94 Retirees......................................................................................4
1.17. Post-94 Retiree Medical Liabilities...................................................................4
1.18. Recurrence Claim......................................................................................4
1.19. Relative Cost Factor..................................................................................4
1.20. Third Parties.........................................................................................5
1.21. UMWA..................................................................................................5
1.22. Workers' Compensation and Federal Black Lung Liabilities..............................................5
ARTICLE II COAL ACT LIABILITIES..................................................................................5
2.1. General...............................................................................................5
ARTICLE III POST-94 RETIREE MEDICAL LIABILITIES..................................................................7
3.1. General...............................................................................................7
3.2. Amendment to Collective Bargaining Agreements.........................................................9
3.3. PCC Amendments to the Medical Plans..................................................................11
3.4. D-R Provision of Benefits............................................................................12
ARTICLE IV WORKERS' COMPENSATION AND FEDERAL BLACK LUNG LIABILITIES.............................................13
4.1. General..............................................................................................13
4.2. Litigation and Disputes..............................................................................14
4.3. No Adverse Changes...................................................................................14
4.4. Recurrence of Prior Claims...........................................................................15
ARTICLE V EMPLOYEE RELATED LIABILITIES..........................................................................16
5.1. Employee Related Liabilities.........................................................................16
ARTICLE VI Collective bargaining agreement......................................................................17
6.1. Collective Bargaining Agreement Liabilities..........................................................17
ARTICLE VII DISPUTE RESOLUTION..................................................................................18
ARTICLE VIII TERM...............................................................................................19
ARTICLE IX MISCELLANEOUS........................................................................................19
9.1. Cooperation..........................................................................................19
9.2. Continuing Obligations...............................................................................20
9.3. D-R Communication with Third Parties.................................................................21
9.4. Litigation Support...................................................................................22
9.5. Confidentiality......................................................................................22
9.6. Governing Law........................................................................................23
9.7. Successors and Assigns...............................................................................23
9.8. Notices and Payments.................................................................................24
COOPERATION AGREEMENT
THIS COOPERATION AGREEMENT, made as of December 13, 2002, by and between
PITTSTON COAL COMPANY, a Delaware corporation ("PCC"), on its own behalf and on
behalf of its Affiliates, and DICKENSON-RUSSELL COAL COMPANY, LLC, a Delaware
limited liability company ("D-R"), on its own behalf and on behalf of its
Affiliates.
RECITALS
WHEREAS, D-R, PCC and certain Affiliates of PCC have entered into a certain
asset purchase agreement as set forth on Schedule A, dated as of October 29,
2002 (such agreement, together with the Exhibits and Schedules attached thereto
being hereinafter referred to as the "Acquisition Agreement"), pursuant to which
D-R has agreed to purchase or acquire from PCC and certain of its Affiliates
certain assets, and assume certain liabilities, all upon the terms and subject
to the conditions set forth in the Acquisition Agreement;
WHEREAS, pursuant to the Acquisition Agreement, PCC has agreed to retain
certain liabilities and certain assets; and
WHEREAS, PCC, PCC Parent, D-R and Alpha Natural Resources, LLC, a Delaware
limited liability company, have entered into the Indemnification and Guaranty
Agreement; and
WHEREAS, PCC and D-R desire to establish certain administrative procedures
with respect to their respective obligations under the Acquisition Agreement;
provided, however, that nothing in this Agreement is intended in any way to
reallocate risk or modify the allocation of liabilities in the Acquisition
Agreement or the Indemnification and Guaranty Agreement; and provided, further,
that nothing in this Agreement, the Acquisition Agreement or the Indemnity
Agreement is intended to, nor should be construed to, establish a single
employer, joint employer, common employer and/or alter ego relationship between
PCC and its Affiliates on the one hand and D-R and its Affiliates on the other
hand.
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NOW, THEREFORE, in consideration of the mutual covenants, conditions and
agreements set forth herein and in the Acquisition Agreement and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, PCC and D-R agree that:
ARTICLE I
DEFINITIONS
When used in this Agreement, the following terms shall have the meanings
specified below. All capitalized terms used but not otherwise defined in this
Agreement shall have the meanings specified in the Acquisition Agreement.
1.1. Acquisition Agreement.
"Acquisition Agreement" shall have the meaning set forth in the Recitals to
this Agreement.
1.2. Actuarial Firm.
"Actuarial Firm" shall have the meaning set forth in Section 3.2(b) hereof.
1.3. Affiliates, Successors, Assigns, Lessees or Contractors.
"Affiliates, Successors, Assigns, Lessees or Contractors" shall mean D-R's
Affiliates, contractual successors and assigns, and lessees and contractors who,
as part of a contractual arrangement with D-R or one of its Affiliates, offer
employment to the current or former Employees of an Asset Sale Company.
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1.4. Agreement.
"Agreement" shall mean this Cooperation Agreement, together with the
Schedule[s] attached hereto, as the same may be amended from time to time in
accordance with the terms hereof.
1.5. Amended Medical Plan.
"Amended Medical Plan" shall have the meaning set forth in Section 3.2(a)
hereof.
1.6. Amended Plan Projected Cost.
"Amended Plan Projected Cost" shall have the meaning set forth in Section
3.2(b) hereof.
1.7. Classified Plan Expected Cost.
"Classified Plan Expected Cost" shall have the meaning set forth in Section
3.2(b) hereof.
1.8. Closing Layoff.
"Closing Layoff" shall have the meaning set forth in Section 6.1 hereof.
1.9. Coal Act Liabilities.
"Coal Act Liabilities" shall mean those Retained Liabilities specified in
Section 1.95(j) of the Acquisition Agreement.
1.10. Collective Bargaining Agreement Liabilities.
"Collective Bargaining Agreement Liabilities" shall mean those liabilities
assumed by the Buyer pursuant to Section 8.2 of the Acquisition Agreement and
Section IV of Schedule 1.9 thereto.
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1.11. Communications.
"Communications" shall have the meaning set forth in Section 2.1(a) hereof.
1.12. Employee Related Liabilities.
"Employee Related Liabilities" shall mean those Retained Liabilities
specified in Sections 1.95(d), 1.95(e), 1.95(f), 1.95(i), 1.95(l), 1.95(m),
1.95(n), and 1.95(p) of the Acquisition Agreement.
1.13. D-R.
"D-R" shall have the meaning set forth in the preamble to this Agreement.
1.14. Participants.
"Participants" shall have the meaning set forth in Section 3.4 hereof.
1.15. PCC.
"PCC" shall have the meaning set forth in the preamble to this Agreement.
1.16. Post-94 Retirees.
"Post-94 Retirees" shall mean the current and former Classified Employees
for whom PCC has retained liabilities pursuant to Section 1.95(k) of the
Acquisition Agreement.
1.17. Post-94 Retiree Medical Liabilities
"Post-94 Retiree Medical Liabilities" shall mean those Retained Liabilities
specified in Section 1.95(k) of the Acquisition Agreement.
1.18. Recurrence Claim.
"Recurrence Claim" shall have the meaning set forth in Section 4.4 hereof.
1.19. Relative Cost Factor.
"Relative Cost Factor" shall have the meaning set forth in Section 3.2(b)
hereof.
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1.20. Third Parties.
"Third Parties" shall have the meaning set forth in Section 9.3 hereof.
1.21. UMWA.
"UMWA" shall mean the International Union, United Mine Workers of America,
including its district and local unions.
1.22. Workers' Compensation and Federal Black Lung Liabilities.
"Workers' Compensation and Federal Black Lung Liabilities" shall mean those
Retained Liabilities specified in Sections 1.95(b) and 1.95(c) of the
Acquisition Agreement.
ARTICLE II
COAL ACT LIABILITIES
2.1. General.
In order to assist PCC with regard to the satisfaction of the Coal Act
Liabilities, PCC and D-R agree as follows:
(a) Notices and Communication.
In the event D-R or any of its Affiliates, Successors, Assigns, Lessees or
Contractors receive from any administrative, judicial or other source any
claims, communications, correspondence, notices, invoices and/or other documents
(collectively, "Communications") that are related to the Coal Act Liabilities,
D-R agrees that it shall, and shall cause its Affiliates, Successors, Assigns,
Lessees or Contractors to:
(i) promptly send to PCC or its designated Affiliate a copy of any
such Communications; and
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(ii) cooperate with PCC in notifying the sender of the Communications
that such Communications should be sent to PCC or its designated
Affiliate.
(b) Litigation.
PCC shall have the exclusive right to pursue and/or defend currently
pending litigation or to commence and/or defend future litigation, with respect
to any issue relating to the Coal Act Liabilities, including, but not limited
to, claims pertaining to specific beneficiaries, statutory construction or the
constitutionality of the Coal Act, as PCC deems necessary or appropriate.
(c) Administration. PCC or one or more of its Affiliates shall be solely
responsible for administering the Coal Act Liabilities and shall take
such actions as it deems necessary or appropriate to administer the
Coal Act Liabilities, including, but not limited to:
(i) pursuing administrative or judicial challenges to the assignment
of beneficiaries to PCC or any of its Affiliates in accordance
with the terms of the Coal Act;
(ii) administering claims under the individual employer plan required
to be maintained under Section 9711 of the Coal Act, including
entering into agreements with third party administrators and
resolving or litigating claim disputes;
(iii) implementing managed care and/or other methods of delivery; and
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(iv) discussing managed care and cost containment options with the
UMWA.
ARTICLE III
POST-94 RETIREE MEDICAL LIABILITIES
3.1. General.
In order to assist PCC with regard to the satisfaction of the Post-94
Retiree Medical Liabilities, PCC and D-R agree as follows:
(a) Administration.
PCC or one or more of its Affiliates shall be solely responsible for
administering the Post-94 Retiree Medical Liabilities, making such
determinations, awarding and denying such benefits, seeking such administrative
and judicial rulings and remedies and taking all such other actions as PCC shall
deem necessary or appropriate.
(b) Notices and Communication.
(i) PCC shall have the exclusive right to provide such notices, if
any, as PCC deems necessary or appropriate to the Post-94
Retirees, the UMWA and any insurers and third party
administrators providing services or benefits related to the
Post-94 Retiree Medical Liabilities, with respect to PCC's
retention, administration and satisfaction of the Post-94 Retiree
Medical Liabilities.
(ii) In the event D-R or any of its Affiliates, Successors, Assigns,
Lessees or Contractors receives any Communications that are
related to the Post-94 Retiree Medical Liabilities, D-R agrees
that it shall, and shall cause its Affiliates, Successors,
Assigns, Lessees or Contractors to, promptly send to PCC or its
designated Affiliate a copy of any such Communications and to
cooperate with PCC in notifying the sender of the Communications
that such Communications should be sent to PCC or its designated
Affiliate.
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(iii) D-R shall provide to PCC, on a monthly basis, written notice of
(and by electronic means if available) (a) the names and social
security numbers, (b) dates of hire, (c) location of employment
and whether such employment is covered by a collective bargaining
agreement and (d) whether D-R believes that in the event any such
individual becomes entitled to retiree medical benefits,
liability therefor would be a Post-94 Retiree Medical Liability,
for all Classified Employees listed on Schedules 1.95(k)(1) and
1.95(k)(3) of the Acquisition Agreement who are recalled or hired
by D-R or any of its Affiliates, Successors, Assigns, Lessees or
Contractors. Each monthly notice shall include only new or
changed information from the last update.
(iv) The foregoing monthly notices also shall identify whenever the
total number of Classified Employees working at the Purchased
Assets listed on Schedule 1.95(k)(2) of the Acquisition Agreement
(A) reaches the 273 Threshold, (B) exceeds the 273 Threshold or
(C) decreases to less than the 273 Threshold, including the dates
on which the events described in (A), (B) and (C) of this
paragraph occurred.
(v) D-R shall provide written notice to PCC in the event D-R or any
of its Affiliates, Successors, Assigns, Lessees or Contractors
negotiates any successor agreement to any of the Collective
Bargaining Agreements that does not require such entity to
provide retiree medical benefits to UMWA pensioners, or which
contains any modifications or amendments to or replacements of
any Classified Employee Retiree Medical Plan.
(vi) D-R shall provide all information reasonably requested by PCC in
connection with any Classified Employee listed on Schedules
1.95(k)(1) and 1.95(k)(3) of the Acquisition Agreement who seeks
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to receive retiree health benefits from D-R or PCC and whom D-R
or PCC believes is the responsibility of PCC under the Post-94
Retiree Medical Liabilities, including, without limitation, a
copy of such Classified Employee's UMWA Pension Plan award letter
and calculation worksheet, dates of employment with D-R or its
Affiliates, Successors, Assigns, Lessees or Contractors, and
verification that such Employee was hired or recalled to work at
the Purchased Assets listed on Schedule 1.95(k)(2) of the
Acquisition Agreement.
(vii) D-R shall provide all other information reasonably requested by
PCC in order to satisfy and/or administer the Post-94 Retiree
Medical Liabilities.
(c) Litigation and Disputes.
(i) PCC shall have the exclusive right to resolve any dispute
regarding Post-94 Retiree Medical Liabilities as PCC in its
discretion deems appropriate, including the exclusive right to
institute and/or defend against any litigation related to Post-94
Retiree Medical Liabilities.
(ii) PCC shall have the right to challenge any assertion that the
retiree medical benefits for any Classified Employee listed on
Schedules 1.95(k)(1) and 1.95(k)(3) of the Acquisition Agreement
is a Post-94 Retiree Medical Liability. In the event such a
challenge cannot be mutually resolved between PCC and D-R, it
shall become a Dispute under this Agreement and resolved in
accordance with Article VI hereof.
3.2. Amendment to Collective Bargaining Agreements.
(a) D-R and PCC acknowledge that from time to time it may be necessary for
D-R or its Affiliates, Successors, Assigns, Lessees or Contractors to
re-negotiate the terms of the Collective Bargaining Agreements. In the
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event that D-R or its Affiliates, Successors, Assigns, Lessees or
Contractors agrees to any modifications or amendments to the benefits
provided under, or to the plan design of, any Classified Employee
Retiree Medical Plan ("Amended Medical Plan"), to the extent allowed
by law PCC shall have the right to determine whether to satisfy the
Post-94 Retiree Medical Liabilities through the Classified Employee
Retiree Medical Plan(s) or through any Amended Medical Plan, provided,
however, in the event a claim against D-R or PCC is filed with a court
or administrative agency with jurisdiction over the claim, asserting
that the Post-94 Retiree Medical Liabilities must be provided through
an Amended Medical Plan, then, (i) in the event the claim is asserted
against PCC, PCC may elect to satisfy the Post-94 Medical Liabilities
though an Amended Medical Plan, and (ii) in the event the claim is
asserted against D-R, PCC shall agree, upon the written request of
D-R, to satisfy such Liabilities through the Amended Medical Plan.
(b) In the event an Amended Medical Plan is negotiated by D-R or its
Affiliates, Successors, Assigns, Lessees or Contractors, PCC shall
have the right, at its sole cost and expense, to submit to the
actuarial firm of Mercer Human Resource Consulting, or another
actuarial firm mutually acceptable to PCC and D-R (the "Actuarial
Firm"): (i) the Classified Employee Retiree Medical Plan(s) pursuant
to which PCC is satisfying the Post-94 Retiree Medical Liabilities;
and (ii) the Amended Medical Plan. The Actuarial Firm will perform a
relative value analysis of each plan, including its administration,
using actuarial methods designed to estimate the cost difference
between two or more plans. This analysis will compare the coverage
provisions of the Amended Medical Plan to those of the Classified
Employee Retiree Medical Plan(s) to determine the relative cost of
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each plan based on the respective benefit design and services covered.
This relative cost will be calculated as a factor representing the
percentage cost difference of the Amended Medical Plan relative to the
Classified Employee Retiree Medical Plan(s) ("Relative Cost Factor").
If the relative value analysis demonstrates that the cost of the
Amended Medical Plan, including its administration, exceeds the cost
of the Classified Employee Retiree Medical Plan(s), including its
administration, and PCC chooses or is required to satisfy the Post-94
Retiree Medical Liabilities through the Amended Medical Plan, D-R will
reimburse PCC that amount by which the projected cost to be incurred
by PCC for that plan year to satisfy the Post-94 Retiree Medical
Liabilities under the Amended Medical Plan ("Amended Plan Projected
Cost") exceeds the amount PCC would have expected to incur under the
terms of the Classified Employee Retiree Medical Plan(s) ("Classified
Plan Expected Cost"). This amount shall be divided and reimbursed in
four equal installments at the end of each calendar quarter. The
Amended Plan Projected Cost and the Classified Plan Expected Cost will
be estimated based on actuarial methods and factors, including the
historical experience of the plans, expected medical cost and
utilization trend, demographic differences and the Relative Cost
Factor.
(c) Either PCC or D-R shall have the right to request that the Actuarial
Firm perform a new relative value analysis of the Classified Employee
Retiree Medical Plan(s) and the Amended Medical Plan, or any successor
thereto: (i) at the termination of any collective bargaining agreement
to which D-R or any of its Affiliates, Successors, Assigns, Lessees or
Contractors are signatory or every five years, whichever occurs first;
and (ii) in the event legislation is enacted which affects the terms
or costs of any such plan. The party requesting such new relative
value analysis shall pay all costs and expenses associated therewith.
3.3. PCC Amendments to the Medical Plans.
If PCC has or secures from the UMWA a right to change the medical plan(s)
by which it satisfies the Post-94 Retiree Medical Liabilities, PCC may make any
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such changes so long as they do not impose any liability or additional costs or
obligations on D-R or its Affiliates, Successors, Assigns, Lessees or
Contractors.
3.4. D-R Provision of Benefits.
D-R and PCC acknowledge that there is a possibility that participants for
which PCC is required to satisfy the Post-94 Retiree Medical Liabilities may
demand under the Collective Bargaining Agreements that D-R or its Affiliates,
Successors, Assigns, Lessees or Contractors, rather than PCC, provide their
retiree medical benefits ("Participants"). In the event D-R or its Affiliates,
Successors, Assigns, Lessees or Contractors is required to provide such retiree
medical benefits for any such Participant:
(a) PCC shall reimburse D-R or its Affiliates, Successors, Assigns,
Lessees or Contractors the Classified Plan Expected Cost, prorated for
each such Participant, which will be estimated based on actuarial
methods and factors, including the historical experience of the plans,
expected medical cost and utilization trend, demographic differences
and the Relative Cost Factor. This amount shall be divided and
reimbursed in four equal installments at the end of each calendar
quarter.
(b) Either PCC or D-R shall have the right to request that the Actuarial
Firm perform a new relative value analysis of the Classified Employee
Retiree Medical Plan(s) and the Amended Medical Plan, or any successor
thereto: (i) at the termination of any collective bargaining agreement
to which D-R or any of its Affiliates, Successors, Assigns, Lessees or
Contractors are signatory or every five years, whichever occurs first;
and (ii) in the event legislation is enacted which affects the terms
or costs of any such plan. The party requesting such new relative
value analysis shall pay all costs and expenses associated therewith.
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ARTICLE IV
WORKERS' COMPENSATION AND FEDERAL BLACK LUNG LIABILITIES
4.1. General.
In order to assist PCC with regard to the satisfaction of the Workers'
Compensation and Federal Black Lung Liabilities, PCC and D-R agree as follows:
(a) Administration.
PCC or one or more of its Affiliates shall be solely responsible for
administering the Workers' Compensation and Black Lung Liabilities, including
making such determinations, awarding and denying such benefits, seeking such
administrative and judicial rulings and remedies and taking all such other
actions as PCC shall deem necessary or appropriate.
(b) Notices and Communication.
(i) D-R and PCC agree to cooperate with each other in providing any
notices that may be necessary to the appropriate Governmental
Authority regarding the allocation between PCC, on the one hand,
and D-R, on the other hand, of the Workers' Compensation and
Federal Black Lung Liabilities.
(ii) In the event D-R or any of its Affiliates, Successors, Assigns,
Lessees or Contractors receive any Communications that are
related to the Workers' Compensation and Federal Black Lung
Liabilities, D-R agrees that it shall, and shall cause its
Affiliates, Successors, Assigns, Lessees or Contractors to, send
promptly to PCC or its designated Affiliate a copy of any such
Communications.
(iii) D-R and PCC agree to cooperate with each other in providing such
notices of the allocation of liabilities under the Acquisition
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Agreement as D-R and PCC deems appropriate to any insurer or
third party administrator providing services or benefits related
to the Workers' Compensation and Federal Black Lung Liabilities.
4.2. Litigation and Disputes.
PCC shall have the right to resolve or defend against any claim that is
related to the Workers' Compensation and Federal Black Lung Liabilities in such
manner as PCC in its discretion deems appropriate, in accordance with such
procedures as PCC deems appropriate and with the controlling Workers'
Compensation Act and federal black lung Laws, including raising the defense that
D-R is the responsible operator under the federal black lung Laws because D-R or
its Affiliates, Successors, Assigns, Lessees or Contractors is a
successor-in-interest to PCC or its Affiliates; provided, however, that D-R
shall have the right to respond that PCC is the responsible operator under the
federal black lung Laws notwithstanding D-R's acquisition of the Purchased
Assets. PCC also shall have the right to institute or defend against any
litigation related to the Workers' Compensation and Federal Black Lung
Liabilities, except that PCC shall promptly notify D-R of any workers'
compensation or federal black lung claim in which it intends to assert that D-R
is responsible for payment of the same under the Acquisition Agreement, in which
case D-R shall have the right to intervene in any such action to oppose PCC's
position. Any dispute as to which entity is the responsible entity for such
workers' compensation claims shall be determined in accordance with the Workers'
Compensation Acts, and any dispute as to which entity is the responsible
operator for such black lung claims shall be determined in accordance with the
federal black lung Laws.
4.3. No Adverse Changes.
D-R agrees that it will, and will cause its Affiliates, Successors,
Assigns, Lessees or Contractors to, use its or their commercially reasonable
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efforts to retain in effect any lawful program or practice of PCC or its
Affiliates in effect at Closing that is intended to reduce employer liability or
the length of time an employee is entitled to receive benefits under the
Workers' Compensation Act.
4.4. Recurrence of Prior Claims.
In the event D-R or any of its Affiliates, Successors, Assigns, Lessees or
Contractors receives a claim under the applicable Workers' Compensation Acts or
federal black lung Laws and D-R or its Affiliates, Successors, Assigns, Lessees
or Contractors believes in good faith that such claim relates to, or is a
recurrence of, a prior claim that constituted a Workers' Compensation or Federal
Black Lung Liability (a "Recurrence Claim"), the provisions of this Section 4.4
shall govern. D-R shall promptly notify PCC of any Recurrence Claim and the
basis for its determination that such claim is a Recurrence Claim prior to
communicating its determination to any other person or entity. If PCC agrees
with D-R that such claim is a Recurrence Claim, such claim shall be deemed a
Workers' Compensation and Federal Black Lung Liability, and the rights and
obligations of the parties shall be as provided in this Article IV. If PCC
disagrees with D-R's position, the matter will be submitted to the appropriate
Governmental Authority for a determination, with each side being responsible for
its respective costs in such procedure. D-R recognizes that in the event the
employee who has filed the claim disagrees with the position of the parties with
respect to a Recurrence Claim, the employee may file a claim with the
appropriate Governmental Authority for a determination. In any such case, PCC
and D-R shall each have the right to defend its position, with each side bearing
the cost of its own defense.
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ARTICLE V
EMPLOYEE RELATED LIABILITIES
5.1. Employee Related Liabilities.
In order to assist PCC with regard to the satisfaction of the Employee
Related Liabilities, PCC and D-R agree as follows:
(a) Administration. PCC or one or more of its Affiliates shall be solely
responsible for administering the Employee Related Liabilities, making
such determinations, awarding and denying such benefits, seeking such
administrative and judicial rulings and remedies and taking all such
other actions as PCC shall deem necessary or appropriate.
(b) Notices and Communication.
(i) PCC has the exclusive right to provide such notices as PCC deems
necessary or appropriate to Employees or other beneficiaries
regarding any matters related to the Employee Related Liabilities
and to any third parties providing services or benefits related
to the Employee Related Liabilities.
(ii) In the event D-R or any of its Affiliates, Successors, Assigns,
Lessees or Contractors receives any Communications that are
related to the Employee Related Liabilities, D-R shall promptly
send, and shall cause its Affiliates, Successors, Assigns,
Lessees or Contractors promptly to send, such Communications to
PCC or its designated Affiliate.
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(iii) D-R agrees to provide on a monthly basis for a period of 12
months following the Closing Date, the names and social security
numbers of any non-Classified Employees hired by D-R or its
Affiliates, Successors, Assigns, Lessees or Contractors and
further agrees to provide, and shall cause its Affiliates,
Successors, Assigns, Lessees or Contractors to provide, all
information in its or their possession or under its or their
control reasonably requested by PCC in order to administer and
satisfy any Employee Related Liabilities.
(c) Litigation. PCC shall have the exclusive right to pursue and/or defend
currently pending litigation, or to commence and/or defend future
litigation, with respect to any issue related to any Employee Related
Liabilities, as PCC shall deem necessary or appropriate.
ARTICLE VI
Collective bargaining agreement
6.1. Collective Bargaining Agreement Liabilities.
In order to assist D-R with regard to the satisfaction of the Collective
Bargaining Agreement Liabilities, PCC and D-R agree as follows: (a) Panel Forms.
(i) Promptly after the Closing, PCC shall provide to D-R the existing
panel forms and Contractor Interest Forms, if any, for the Classified
Employees on Schedule 3.13(b) of the Acquisition Agreement who were
laid off prior to the layoff mandated by Section 8.1(a) of the
Acquisition Agreement ("Closing Layoff").
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(ii) At the time of the Closing Layoff, PCC shall provide to such
Classified Employees the forms that are necessary for such Classified
Employees to provide their panel information in accordance with the
Collective Bargaining Agreements and shall advise such Classified
Employees to return those forms to PCC within the time allowed under
the Collective Bargaining Agreements.
(iii) Within a reasonable period of time after the panel forms must be
returned under the Collective Bargaining Agreements, PCC shall provide
all forms that have been returned to D-R.
(iv) PCC shall notify D-R of any Classified Employee on Schedule 3.13(b) of
the Acquisition Agreement who failed to submit a panel form as
required under the Collective Bargaining Agreements, and PCC and D-R
shall cooperate with each other to determine the final status of all
Classified Employees on Schedule 3.13(b) of the Acquisition Agreement.
ARTICLE VII
DISPUTE RESOLUTION
Disputes under or alleged violations of this Agreement shall be handled in
accordance with the Dispute resolution procedure set forth in Article VII of the
Indemnification and Guaranty Agreement.
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ARTICLE VIII
TERM
The term of this Agreement shall commence as of the Closing Date and shall
continue through the completed satisfaction of all of the Coal Act Liabilities,
Post-94 Retiree Medical Liabilities, Workers' Compensation and Federal Black
Lung Liabilities and the Employee Related Liabilities.
ARTICLE IX
MISCELLANEOUS
9.1. Cooperation.
(a) To the extent permitted by Law and on a timely basis, D-R agrees to
take any reasonable action, provide information and execute any
appropriate documents, and shall cause its Affiliates, Successors,
Assigns, Lessees or Contractors to take any reasonable action, provide
information and execute any appropriate documents, that PCC reasonably
requests in order to assist PCC with regard to the administration and
satisfaction of the Coal Act Liabilities, Post-94 Retiree Medical
Liabilities, Workers' Compensation and Federal Black Lung Liabilities
and the Employee Related Liabilities. Upon written request by D-R, PCC
shall reimburse D-R for costs above $10,000 per year that are
reasonably incurred by D-R or its Affiliates as a result of actions
taken by it or them under this Agreement. Prior to payment of such
costs, PCC shall be entitled to receive a detailed invoice of such
costs from D-R if so requested by PCC.
(b) PCC and D-R shall cooperate with each other to determine the timing
and manner of transferring the Books and Records to D-R after the
Closing, provided, however, that D-R or its Affiliates shall have
immediate access to all such Books and Records while still in the
possession of PCC (including, without limitation, access to the forms
described in Section 6.1 hereof) and provided, further, that PCC or
its Affiliates shall have reasonable access to, and shall be allowed
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to copy at its sole expense, any Books and Records to which PCC
reasonably believes it needs access or for which PCC reasonably
believes it needs copies after the Closing.
(c) PCC, its Affiliates, successors and assigns shall have reasonable
access to, and shall be allowed to copy at their sole expense, any
title abstracts, title files, records, deeds or other title documents
related to their real property interests. D-R, its Affiliates,
successors and assigns shall have reasonable access to, and shall be
allowed to copy at their sole expense, any title abstracts, title
files, records, deeds or other title documents related to the Real
Property.
(d) PCC or its Affiliates and D-R or its Affiliates will jointly work with
the respective Commissioners of Revenue to prepare new tax assessments
for the Real Property and PCC's retained real property. The parties
have used commercially reasonable efforts to include the correct tax
ticket numbers in an exhibit to be attached to and referenced in the
Conveyance Deeds in order to identify the Real Property being
transferred to D-R. To the extent it is later determined that
different tax ticket numbers should have been included on or removed
from the Conveyance Deeds, each party agrees to take any reasonable
action, provide information and execute any appropriate documents, and
shall cause its Affiliates, Successors, Assigns, Lessees or
Contractors to take any reasonable action, provide information and
execute any appropriate documents, that the other party reasonably
requests in order to ensure that the Conveyance Deeds reference the
tax ticket numbers associated with the actual Real Property
transferred to D-R.
9.2. Continuing Obligations.
Any failure by PCC or by D-R or its Affiliates, Successors, Assigns,
Lessees, or Contractors to comply with any of their obligations in this
Agreement shall not relieve PCC or D-R of any of their Liabilities or
obligations under the Acquisition Agreement.
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9.3. D-R Communication with Third Parties.
Unless otherwise agreed to in writing by PCC or except as permitted
specifically by this Agreement and the Acquisition Agreement, neither D-R nor
any of its Affiliates, Successors, Assigns, Lessees or Contractors will make any
public statements or communicate with the UMWA, the United Mine Workers of
America Combined Benefit Fund, the 1992 UMWA Benefit Plan, the UMWA Pension
Plans, any beneficiary of any Employee Benefit Plan, or any other Person or
entity (collectively, "Third Parties") with respect to or concerning the Coal
Act Liabilities, Post-94 Retiree Medical Liabilities, Workers' Compensation and
Federal Black Lung Liabilities and the Employee Related Liabilities.
Notwithstanding the foregoing, in the event PCC fails to take such actions as
are necessary to comply with its obligations under the Acquisition Agreement and
this Agreement with respect to any of the Coal Act Liabilities, Post-94 Retiree
Medical Liabilities, Workers' Compensation and Federal Black Lung Liabilities or
the Employee Related Liabilities within a reasonable time after receiving notice
from D-R that attempts have been or are being made to obtain information
concerning or to impose any of the Coal Act Liabilities, Post-94 Retiree Medical
Liabilities, Workers' Compensation and Federal Black Lung Liabilities or the
Employee Related Liabilities on D-R or any of its Affiliates, Successors,
Assigns, Lessees or Contractors, D-R shall be permitted to communicate with the
appropriate Third Party regarding PCC's obligations with respect to such Coal
Act Liabilities, Post-94 Retiree Medical Liabilities, Workers' Compensation and
Federal Black Lung Liabilities or the Employee Related Liabilities. In addition,
notwithstanding anything in the foregoing to the contrary, in the event any
Third Party contacts D-R to inquire about PCC's or any of its Affiliates
obligations with respect to such Coal Act Liabilities, Post-94 Retiree Medical
Liabilities, Workers' Compensation and Federal Black Lung Liabilities or the
Employee Related Liabilities under this Agreement, D-R is permitted to direct
such Third Party to contact PCC for additional information.
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9.4. Litigation Support.
In the event and for as long as PCC is actively contesting or defending
against any action, suit, proceeding, hearing, investigation, charge, complaint,
claim or demand related to the Coal Act Liabilities, Post-94 Retiree Medical
Liabilities, Workers' Compensation and Federal Black Lung Liabilities and the
Employee Related Liabilities, D-R will, to the extent reasonable, cooperate, and
shall cause its Affiliates, Successors, Assigns, Lessees or Contractors to
cooperate, with PCC and its counsel in the contest or defense, make available
their personnel and provide such testimony and access to their books, documents
and records as shall be reasonably necessary in connection with the contest or
defense.
9.5. Confidentiality.
Except as otherwise provided in this Agreement, each party hereto covenants
and agrees to keep confidential the existence of this Agreement and the contents
of this Agreement at all times while any provision of this Agreement is in
force, unless and to the extent that a party shall be required to disclose the
same by generally accepted accounting principles, Law or judicial order or
decree or administrative regulation or order or in order to comply with its
obligations hereunder; provided, however, that any party that believes it may be
required to disclose this Agreement or any provisions hereof shall promptly
notify the other hereto in writing and afford such other party the opportunity
to determine whether disclosure is in fact required or if the scope of the
required disclosure can be reduced and provided further, however, that
notwithstanding anything in this Section 9.5 or in Section 9.3 hereof to the
contrary, without notifying the other party, any party may disclose the
existence and contents of this Agreement:
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(a) to any employees within the party's organization who need to know of
this Agreement in order for the party to comply with its obligations
hereunder, so long as such employees at the time of disclosure are
required to comply with this Section 9.5;
(b) to D-R's Affiliates, Successors, Assigns, Lessees, Contractors and
their employees, attorneys, accountants, consultants and lenders who
need to know of the Agreement, so long as such entities and persons
agree to comply with this Section 9.5;
(c) to any third-party contractor whose services the party requires in
order for the party to comply with its obligations hereunder so long
as such contractor is contractually obligated to comply with this
Section 9.5;
(d) in the financial statements of the party as required by generally
accepted accounting principles; or
(e) to any attorneys, accountants, consultants or lenders of a party for
whom the party agrees to be responsible for the compliance herewith.
9.6. Governing Law.
This Agreement shall be governed by and construed in accordance with the
laws of the Commonwealth of Virginia, but without reference to the choice of law
provision thereof.
9.7. Successors and Assigns.
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, which consent shall not be unreasonably
withheld, except that PCC may assign its rights hereunder to any Affiliate of
PCC after the Closing Date without the consent of D-R and D-R may assign its
rights hereunder to any Affiliate of D-R after the Closing Date without the
consent of PCC.
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9.8. Notices and Payments.
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 (5) days of being mailed by registered or certified United States mail,
postage 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 9.8:
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.
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If to D-R: Dickenson-Russell Coal Company, 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.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date first written above.
DICKENSON-RUSSELL COAL COMPANY, LLC
By: /s/ Anthony McGartland
---------------------------------------------
Name: Anthony McGartland
Title: President
PITTSTON COAL COMPANY
By: /s/ Michael D. Brown
Name: Michael D. Brown
Title: Vice President - Development and
Technical Resources
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