Exhibit 2
AGREEMENT
This Agreement, dated as of March 23, 2006 (this "AGREEMENT"), is
entered into by and between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLC, a Delaware limited liability
company ("▇▇▇▇▇▇ ▇▇▇▇▇▇▇"), and ▇▇▇▇▇ River Coal Company, a Virginia corporation
(the "COMPANY").
WHEREAS, through funds and accounts for which it serves as general
partner and/or as investment advisor (the "FUNDS"), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ beneficially
owns an aggregate of approximately 14.5% of the Company's outstanding common
stock, $0.01 par value per share ("COMMON STOCK");
WHEREAS, Article I, Section 1.3 of the Company's Amended and Restated
Bylaws (the "BYLAWS") provides, in part, that business may be conducted at an
annual meeting of shareholders if brought before the meeting by a shareholder of
record whose written notice with respect to such business is delivered to and
received by the Secretary or Assistant Secretary of the Company not less than 90
days before the date of the meeting;
WHEREAS, Article II, Section 2.3 of the Bylaws provides, in part, that
nominations for the election of directors at an annual meeting of shareholders
may be made by a shareholder whose written notice of intent to make such
nominations has been delivered to the Secretary of the Company not later than
120 days before the date of the meeting; and
WHEREAS, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and/or one or more of the Funds is prepared to
deliver to the Company the requisite advance notice (the "NOTICE") of business
to be conducted and/or candidates for director to be nominated at the Company's
2006 annual meeting of shareholders (including any special meeting held in lieu
thereof or any adjournments or postponements of such annual or special meeting,
the "2006 ANNUAL MEETING"), and is willing to temporarily forego delivery of the
Notice in light of, among other things, (a) the Company's announcement that it
is exploring various strategic alternatives to maximize shareholder value,
including a possible sale of the Company, and (b) the parties' desire to discuss
the potential to avoid a proxy contest at the 2006 Annual Meeting and, in
connection therewith, their desire to maintain the status quo as between the
parties;
NOW, THEREFORE, in consideration of the mutual covenants herein set
forth and for other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereby agree as follows:
I. TOLLING. Notwithstanding any provision to the contrary set forth in
the Bylaws, each of which is hereby waived by the Company, it is expressly
agreed that should ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and/or one or more of the Funds provide the
Notice at any time on or prior to 5:00 p.m. (New York time) on April 30, 2006,
(i) the Notice shall be deemed timely for all purposes and neither the Company
nor any person acting on its behalf shall contest the timeliness thereof, (ii)
should the Company contest the validity of the Notice for any reason other than
the timeliness thereof, the Company shall provide the party delivering the
Notice with at least 10 business days to cure any such alleged defect after
receipt of written notice thereof, and (iii) the Company shall not hold the 2006
Annual Meeting earlier than 75 days following receipt of the Notice.
II. REPRESENTATIONS AND WARRANTIES. Each of the Company and ▇▇▇▇▇▇
▇▇▇▇▇▇▇ hereby represents and warrants with respect to itself as follows:
AUTHORITY RELATIVE TO THIS AGREEMENT. It has the full legal right and
power and all authority and approval required to enter into, execute and deliver
this Agreement and to perform fully its obligations hereunder. This Agreement
has been duly authorized, executed and delivered by it and this Agreement
constitutes the valid and binding obligation of it enforceable against it in
accordance with the terms hereof.
ABSENCE OF CONFLICTS. Its execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby and its performance
hereunder in accordance with the terms and conditions hereof will not: (i)
violate, conflict with or result in a breach of any provision of its articles of
incorporation, by-laws or comparable governing documents, (ii) violate, conflict
with or result in a breach of any provision of or constitute a default (or an
event that, with notice or lapse of time or both, would constitute a default)
under, or result in the termination of, or accelerate the performance required
by, any contract or other agreement to which it is a party or by or to which it
is bound or subject; or (iii) violate any judgment, ruling, order, writ,
injunction, award, decree, statute, law, ordinance, code, rule or regulation of
any court or foreign, federal, state, county or local government or any other
governmental, regulatory or administrative agency or authority that is
applicable to it.
III. GENERAL.
AMENDMENTS AND WAIVERS. The provisions of this Agreement may not be
amended, modified, supplemented or terminated, and waivers or consents to
departures from the provisions hereof may not be given, without the written
consent of the Company and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
NOTICES. All notices and other communications provided for or permitted
hereunder to any party shall be deemed to be sufficient if contained in a
written instrument and shall be deemed to have been duly delivered when
delivered in person, by facsimile, by nationally-recognized overnight courier,
or by first class registered or certified mail, postage prepaid, addressed to
such party at the address set forth below or such other address as may hereafter
be designated in writing by the addressee as follows:
If to the Company, to:
▇▇▇▇▇ River Coal Company
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
If to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
All such notices, requests, consents and other communications shall be
deemed to have been delivered (i) in the case of personal delivery or delivery
by electronically confirmed facsimile, on the date of such delivery, (ii) in the
case of nationally-recognized overnight courier, on the next business day and
(iii) in the case of mailing, on the third business day following such mailing
if sent by certified mail, return receipt requested.
DESCRIPTIVE HEADINGS, ETC. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning of terms contained herein. Unless the context of this Agreement
otherwise requires, as used herein: (i) words of any gender shall be deemed to
include each other gender; (ii) words using the singular or plural number shall
also include the plural or singular number, respectively; (iii) the words
"hereof", "herein" and "hereunder" and words of similar import refer to this
Agreement as a whole and not to any particular provision of this Agreement; (iv)
the word "including" and words of similar import mean "including, without
limitation"; (v) "or" is not exclusive; and (vi) provisions apply to successive
events and transactions. This Agreement may be executed in two or more
counterparts, each of which, when so executed and delivered, shall be deemed to
be an original, but all of which counterparts, taken together, shall constitute
one and the same instrument. Each
party hereto acknowledges that it has had the
benefit of legal counsel of its own choice and has been afforded an opportunity
to review this Agreement with its legal counsel and that this Agreement shall be
construed as if jointly drafted by the parties.
SEVERABILITY. In the event that any one or more of the provisions,
paragraphs, words, clauses, phrases or sentences contained herein, or the
application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability thereof in every other respect and of the other remaining
provisions, paragraphs, words, clauses, phrases or sentences hereof shall not be
in any way impaired, it being intended that all rights, powers and privileges of
the parties hereto shall be enforceable to the fullest extent permitted by law.
GOVERNING LAW; SPECIFIC PERFORMANCE. This Agreement shall be governed
by and construed in accordance with the internal laws of the State of New York
(without reference to its choice of law rules). The parties agree that
irreparable damage would occur in the event that the provisions of this
Agreement were not performed in accordance with their specific terms.
Accordingly, it is agreed that either party shall be entitled to an injunction
or injunctions to enforce specifically the terms and provisions hereof in any
court of the United States or any state having jurisdiction without the posting
of a bond or other security, this being in addition to any other remedy to which
such party is entitled at law or in equity.
ENTIRE AGREEMENT. This Agreement is intended by the parties as a final
expression of and a complete and exclusive statement of their agreement and
understanding in respect of the subject matter contained herein. There are no
restrictions, promises, representations, warranties, covenants or undertakings
relating to such subject matter, other than those set forth or referred to
herein. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
[Remainder of page intentionally left blank. Signature page follows.]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
Title: Managing Member
▇▇▇▇▇ RIVER COAL COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman, President and
Chief Executive Officer