EXHIBIT 7.2
VOTING AGREEMENT
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THIS VOTING AGREEMENT, dated as of April 4, 1997, by and between
Arch Mineral Corporation., a Delaware corporation ("AMC"), and the stockholder
identified on the signature page hereof (the "Stockholder");
WITNESSETH:
WHEREAS, the Stockholder, as of the date hereof, is the owner of or
has the sole right to vote the number of shares of Common Stock, par value $.01
per share ("Common Stock"), Class B Preferred Stock, par value $100 per share
("Class B Preferred Stock") and/or Class C Preferred Stock, par value $100 per
share ("Class C Preferred Stock" and, together with Common Stock and Class B
Preferred Stock, "Capital Stock") of Ashland Coal, Inc., a Delaware corporation
(the "Company"), set forth below the name of the Stockholder on the signature
page hereof (the "Shares"); and
WHEREAS, in reliance upon the execution and delivery of this
Agreement, AMC will enter into an Agreement and Plan of Merger, dated as of the
date hereof (the "Merger Agreement"), with the Company and AMC Merger
Corporation which provides, among other things, that upon the terms and subject
to the conditions thereof the Company will become a wholly owned subsidiary of
AMC (the "Merger"); and
WHEREAS, to induce AMC to enter into the Merger Agreement and to
incur the obligations set forth therein, the Stockholder is entering into this
Agreement pursuant to which the Stockholder agrees to vote in favor of the
Merger, and to make certain agreements with respect to the Shares upon the terms
and conditions set forth herein;
NOW THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein and for other good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, the
parties hereto agree as follows:
Section 1. VOTING OF SHARES; PROXY. (a) The Stockholder agrees that
until the earlier of (i) the Effective Time (as defined in the Merger Agreement)
or (ii) the date on which the Merger Agreement is terminated (the earliest
thereof being hereinafter referred to as the "Expiration Date"), the Stockholder
shall vote all Shares owned by the Stockholder at any meeting of the Company's
stockholders (whether annual or special and whether or not an adjourned meeting)
for adoption and approval of the Merger Agreement and the transactions
contemplated thereby, including the Merger as such Merger Agreement may be
modified or amended from time to time. Any such vote shall be cast in
accordance with such procedures relating thereto as shall ensure that it is duly
counted for purposes of determining that a quorum is present and for purposes of
recording the results of such vote or consent.
(b) At the request of AMC, the Stockholder, in furtherance of the
transactions contemplated hereby and by the Merger Agreement, and in order to
secure the performance by the Stockholder of its duties under this Agreement,
shall promptly execute, in accordance with the provisions of Section 212(e) of
the Delaware General Corporation Law, and deliver to AMC, an irrevocable proxy,
substantially in the form of Annex A hereto, and irrevocably appoint AMC or its
designees, with full power of substitution, its attorney and proxy to vote all
of the Shares owned by the Stockholder in respect of any of the matters set
forth in, and in accordance with the provisions of Section 1(a). The Stockholder
acknowledges that the proxy executed and delivered by it shall be coupled with
an interest, shall constitute, among other things, an inducement for AMC to
enter into the Merger Agreement, shall be irrevocable and shall not be
terminated by operation of law or upon the occurrence of any event.
Section 2. COVENANTS OF THE STOCKHOLDER. The Stockholder covenants
and agrees for the benefit of AMC that, until the Expiration Date, it will:
(a) not sell, transfer, pledge, hypothecate, encumber, assign,
tender or otherwise dispose of, or other than as expressly contemplated by
the Merger Agreement, enter into any contract, option or other arrangement
or understanding with respect to the sale, transfer, pledge,
hypothecation, encumbrance, assignment, tender or other disposition of,
any of the Shares owned by it or any interest therein; and
(b) other than as expressly contemplated by this Agreement, not
grant any powers of attorney or proxies or consents in respect of any of
the Shares owned by it, deposit any of the Shares owned by it into a
voting trust, enter into a voting agreement with respect to any of the
Shares owned by it or otherwise restrict the ability of the holder of any
of the Shares owned by it freely to exercise all voting rights with
respect thereto.
Section 3. COVENANTS OF AMC. AMC covenants and agrees for the
benefit of the Stockholder that (a) immediately upon execution of this
Agreement, it shall enter into the Merger Agreement, and (b) until the
Expiration Date, it shall use best efforts to take, or cause to be taken, all
action, and do, or cause to be done, all things necessary or advisable in order
to consummate and make effective the transactions contemplated by this Agreement
and the Merger Agreement, consistent with the terms and conditions of each such
Agreement; PROVIDED, HOWEVER, that nothing in this Section 3, Section 12 or any
other provision of
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this Agreement is intended, nor shall it be construed, to limit or in any way
restrict AMC's right or ability to exercise any of its rights under the Merger
Agreement.
Section 4. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER. The
Stockholder represents and warrants to AMC that: (a) the execution, delivery and
performance by the Stockholder of this Agreement will not conflict with, require
a consent, waiver or approval under, or result in a breach of or default under,
any of the terms of any contract, commitment or other obligation (written or
oral) to which the Stockholder is bound; (b) this Agreement has been duly
executed and delivered by the Stockholder and constitutes a legal, valid and
binding obligation of the Stockholder, enforceable against the Stockholder in
accordance with its terms; (c) the Stockholder is the sole owner of or has the
sole right to vote the Shares and the Shares represent all shares of Capital
Stock which the Stockholder is the sole owner of or has the sole right to vote
at the date hereof, and the Stockholder does not have any right to acquire, nor
is it the "beneficial owner" (as such term is defined in Rule 13d-3 under the
Securities Exchange Act of 1934, as amended) of, any other shares of any class
of capital stock of the Company or any securities convertible into or
exchangeable or exercisable for any shares of any class of capital stock of the
Company; (d) the Stockholder has full right, power and authority to execute and
deliver this Agreement and to perform its obligations hereunder; and (e) the
Stockholder owns the Shares free and clear of all liens, claims, pledges,
charges, proxies, restrictions, encumbrances, proxies, voting trusts and voting
agreements of any nature whatsoever other than as provided by this Agreement and
other than the Restated Shareholders Agreement among Ashland Inc., Carboex
International, Ltd. and the Company dated December 12, 1991, as amended August
6, 1993. The representations and warranties contained herein shall be made as of
the date hereof and as of each day from the date hereof through and including
the Effective Time (as defined in the Merger Agreement).
Section 5. ADJUSTMENTS; ADDITIONAL SHARES. In the event (a) of any
stock dividend, stock split, merger (other than the Merger) recapitalization,
reclassification, conversion, combination, exchange of shares or the like of any
of the Capital Stock of the Company on, of or affecting the Shares or (b) that
the Stockholder shall become the beneficial owner of any additional shares of
Capital Stock or other securities entitling the holder thereof to vote or give
consent with respect to the matters set forth in Section 1, then the terms of
this Agreement shall apply to the shares of Capital Stock or other instruments
or documents held by the Stockholder immediately following the effectiveness of
the events described in clause (a) or the Stockholder becoming the beneficial
owner thereof as described in clause (b), as though, in either case, they were
Shares hereunder.
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Section 6. SPECIFIC PERFORMANCE. The Stockholder acknowledges that
the agreements contained in this Agreement are an integral part of the
transactions contemplated by the Merger Agreement, and that, without these
agreements, AMC would not enter into the Merger Agreement, and acknowledges that
damages would be an inadequate remedy for any breach by it of the provisions of
this Agreement. Accordingly, the Stockholder and AMC each agree that the
obligations of the parties hereunder shall be specifically enforceable and
neither party shall take any action to impede the other from seeking to enforce
such right of specific performance.
Section 7. NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be effective upon receipt (or refusal of
receipt), shall be in writing and shall be delivered in person, by telecopy or
telefacsimile, by telegram, by next-day courier service, or by mail (registered
or certified mail, postage prepaid, return receipt requested) to the Stockholder
at the address listed on the signature page hereof, and to AMC at ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Secretary, telecopy number
(▇▇▇) ▇▇▇-▇▇▇▇, or to such other address or telecopy number as any party may
have furnished to the other in writing in accordance herewith.
Section 8. BINDING EFFECT; SURVIVAL. Upon execution and delivery of
this Agreement by AMC, this Agreement shall become effective as to the
Stockholder at the time the Stockholder executes and delivers this Agreement.
This Agreement shall inure to the benefit of and be binding upon the parties
hereto and their respective successors and assigns.
Section 9. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware applicable to
agreements made and to be performed entirely within such State.
Section 10. COUNTERPARTS. This Agreement may be executed in two
counterparts, both of which shall be an original and both of which together
shall constitute one and the same agreement.
Section 11. EFFECT OF HEADINGS. The Section headings herein are
for convenience of reference only and shall not affect the construction
hereof.
Section 12. ADDITIONAL AGREEMENTS; FURTHER ASSURANCE. Subject to the
terms and conditions herein provided, each of the parties hereto agrees to use
all reasonable efforts to take, or cause to be taken, all action and to do, or
cause to be done, all things necessary, proper or advisable to consummate and
make effective the transactions contemplated by this Agreement. The Stockholder
will provide AMC with all documents which may reasonably be requested by AMC and
will take reasonable steps to
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enable AMC to obtain fully all rights and benefits provided it hereunder.
Section 13. AMENDMENT; WAIVER. No amendment or waiver of any
provision of this Agreement or consent to departure therefrom shall be effective
unless in writing and signed by AMC and the Stockholder, in the case of an
amendment, or by the party which is the beneficiary of any such provision, in
the case of a waiver or a consent to depart therefrom.
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto all as of the day and year first above written.
ARCH MINERAL CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Senior Vice President
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Ashland Inc.
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Name of Stockholder
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Senior Vice President,
General Counsel and Secretary
Address: Ashland Inc.
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Number of Shares:
7,529,686 (Common Stock)
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150 (Class B Preferred Stock)
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0 (Class C Preferred Stock)
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ANNEX A
[Form of Proxy]
IRREVOCABLE PROXY
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In order to secure the performance of the duties of the undersigned
pursuant to the Voting Agreement, dated as of , 1997 (the "Voting
Agreement"), between the undersigned and Arch Mineral Corporation, a Delaware
corporation, a copy of such agreement being attached hereto and incorporated by
reference herein, the undersigned hereby irrevocably appoints and , and each of
them, the attorneys, agents and proxies, with full power of substitution in each
of them, for the undersigned and in the name, place and stead of the
undersigned, in respect of any of the matters set forth in clauses (i) and (ii)
of Section 1 of the Voting Agreement, to vote or, if applicable, to give written
consent, in accordance with the provisions of said Section 1 and otherwise act
(consistent with the terms of the Voting Agreement) with respect to all shares
of Common Stock, par value $.01 per share, Class B Preferred Stock, par value
$100 per share, and Class C Preferred Stock, par value $100 per share (the
"Shares"), of Ashland Coal, Inc., a Delaware corporation (the "Company"),
whether now owned or hereafter acquired, which the undersigned is or may be
entitled to vote at any meeting of the Company held after the date hereof,
whether annual or special and whether or not an adjourned meeting, or, if
applicable, to give written consent with respect thereto. This Proxy is coupled
with an interest, shall be irrevocable and binding on any successor in interest
of the undersigned and shall not be terminated by operation of law or upon the
occurrence of any event. This Proxy shall operate to revoke any prior proxy as
to the Shares heretofore granted by the undersigned. This Proxy shall terminate
on , 1997. This Proxy has been executed in accordance with Section 212(e) of the
Delaware General Corporation Law.
Dated:
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