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EXHIBIT Q
STOCK PURCHASE AGREEMENT
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STOCK PURCHASE AGREEMENT, dated as of December 19, 1996 (the
"Agreement"), between Penn Virginia Equities Corporation, (the "Seller"), and
▇▇▇▇▇▇ ▇▇▇▇▇▇ FINANCIAL GROUP LTD. (the "Purchaser").
W I T N E S S E T H:
WHEREAS, the Seller beneficially owns 1,090,811 shares of
common stock, par value $2.50 per share, of ▇▇▇▇▇▇▇▇▇▇▇▇ Coal Company, a
Delaware corporation ("▇▇▇▇▇▇▇▇▇▇▇▇") (the "▇▇▇▇▇▇▇▇▇▇▇▇ Common Stock");
WHEREAS, Purchaser is a merchant banker and investor; and
WHEREAS, the Seller desires to sell 250,000 shares of
▇▇▇▇▇▇▇▇▇▇▇▇ Common Stock (the "Shares") and Purchaser desires to purchase the
Shares in accordance with the terms and conditions hereof;
NOW, THEREFORE, in consideration of the mutual agreements,
covenants, representations and warranties contained herein and intending to be
legally bound hereby, the parties hereto agree as follows:
I. SALE OF THE SHARES
1.1 Sale and Purchase of Shares. On the date hereof (the "Closing
Date"), the Seller has transferred, assigned, sold and delivered to the
Purchaser and the Purchaser has purchased from the Seller, the Shares for a per
Share purchase price of $0.50 per Share, or $125,000 in the aggregate (the
"Purchase Price").
1.2 Actions on the Closing Date; Method of Payment of Purchase
Price. On the Closing Date, (a) the Seller sent to the transfer agent for the
▇▇▇▇▇▇▇▇▇▇▇▇ Common Stock a certificate or certificates representing the number
of the Shares, accompanied by a stock power or powers duly endorsed to the
Purchaser, with irrevocable instructions to transfer the Shares to the name of
the Purchaser; and (b) the Purchaser paid the Purchase Price to the Seller by
wire transfer of immediately available funds to a bank account designated by
Seller.
II. CERTAIN REPRESENTATIONS AND WARRANTIES
2.1 Certain Representations and Warranties by the Seller. The
Seller represents and warrants to the Purchaser as follows:
(a) the Seller is duly authorized to execute and deliver
this Agreement and this Agreement is valid and binding, enforceable against it
in accordance with its terms, except as enforcement may be limited by
bankruptcy, insolvency or other similar laws affecting the enforcement of
creditors' rights generally;
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(b) neither the execution of this Agreement nor the
consummation by the Seller of the transactions contemplated hereby will
constitute a violation of or default under, or conflict with, any contract,
commitment, agreement, understanding, arrangement or restriction or any kind
to which the Seller is a party or by which it or any of its properties is bound;
(c) no consent, approval, order or authorization of any
court, administrative agency, other governmental entity or any other person is
required by or with respect to the Seller in connection with the execution and
delivery of this Agreement by the Seller;
(d) the transfer of the Shares by the Seller hereunder to
the Purchaser will pass good and marketable title to the Shares to each of the
Purchaser, free and clear of all liens, except as may have been created by the
Purchaser and except that the certificates for the Shares may be legended to
restrict transfer of the Shares except in compliance with applicable securities
laws; and
(e) the Seller has not engaged in directed selling
efforts in or directed toward the United States with respect to the sale of the
Shares.
2.2 Certain Representations and Warranties by the Purchaser. The
Purchaser represents and warrants to the Seller as follows:
(a) the Purchaser is duly authorized to execute and
deliver this Agreement and this Agreement is valid and binding, enforceable
against it in accordance with its terms, except as enforcement may be limited
by bankruptcy, insolvency or other similar laws affecting the enforcement of
creditors' rights generally;
(b) neither the execution of this Agreement nor the
consummation by the Purchaser of the transactions contemplated hereby will
constitute a violation of or default under, or conflict with, any contract,
commitment, agreement, understanding, arrangement or restriction of any kind to
which the Purchaser is a party or by which the Purchaser or any of its
properties is bound;
(c) no consent, approval, order or authorization of any
court, administrative agency, other governmental entity or any other person is
required by or with respect to the Purchaser in connection with the execution
and delivery of this Agreement by it;
(d) the Purchaser understands and acknowledges that the
Shares have not been and will not be registered under the Securities Act, and
may not be offered or sold in the United States or to, or for the account or
benefit of, any U.S. Person, unless such Shares are registered under the
Securities Act or such offer or sale is made pursuant to an exemption from the
registration requirements of the Securities Act;
(e) the Purchaser understands and acknowledges that the
Seller and its affiliates and representatives have made no representations or
warranties whatsoever to the
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Purchaser with respect to ▇▇▇▇▇▇▇▇▇▇▇▇, including its assets, liabilities,
properties, business, financial condition, public filings, financial statements
and prospects;
(f) the Purchaser is purchasing the Shares for its own
account or for persons or accounts as to which it exercises investment
discretion. The Purchaser (and any person or account on whose behalf such
Purchaser is purchasing) is knowledgeable, sophisticated and experienced in
making, and is qualified to make, decisions with respect to investments in
restricted securities (such as this Agreement and the Shares) and has
requested, received, reviewed and considered all information it deems relevant
in making a decision to execute this Agreement and to purchase the Shares. The
Purchaser is purchasing the Shares for investment purposes and not with a view
to distribution. The Purchaser has no present intention of selling or reselling
the Shares into the United States or to, or for the account or benefit of, a
U.S. Person. To the extent that the certificate representing the Shares is
registered in the name of the Purchaser's nominee, the Purchaser confirms that
such nominee is acting as custodian for Purchaser of the securities represented
thereby; and
(g) neither the Purchaser nor any person or account on
whose behalf Purchaser is purchasing the Shares is a U.S. Person. The
Purchaser, and any person or account on whose behalf the Purchaser is
purchasing the Shares, was not located in the United States at the time it
received the offer to purchase the Shares, is not located in the United States
on the date of its execution of this Agreement and was not nor will be located
in the United States on the date on which its buy order for the Shares
originated or will originate.
III. COVENANTS
3.1 Covenants of Purchaser. The Purchaser hereby agrees and
covenants as follows:
(a) For a period of forty (40) days following the closing
of the purchase and sale of the Shares under this Agreement (the "Restricted
Period"), the Purchaser shall not (i) engage in any activity for the purpose
of, or which may reasonably be expected to have the effect of, conditioning the
market in the United States for the Shares, or (ii) offer or sell the Shares in
the United States or to, or for the account or benefit of, a U.S. Person. The
Purchaser shall not deliver this Agreement to any person (other than its
professional advisers). The Purchaser understands that the Shares are
transferable only on the books of the Company and its transfer agent and that
the Company and its transfer agent may have their own policies with respect to
the registration or transfer of any Shares;
(b) unless registered under the Securities Act, any
proposed offer, sale or transfer of any of the Shares purchased by the
Purchaser hereunder during the Restricted Period shall be subject to the
condition that (i) neither record nor beneficial ownership of the Shares
evidenced thereby has been offered or sold in the United States or to, or for
the account or benefit of, any U.S. Person, (ii) the Purchaser shall have
received and delivered to Seller a written certification of the proposed
transferee that such transferee (or any account for which such transferee is
acquiring such Shares) is not a U.S. Person, is acquiring such Shares for such
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transferee's own account (or an account over which it has investment
discretion), and that such transferee is knowledgeable of and agrees to be
bound by the restrictions on re-sale set forth in this Section 3.1 and
Regulation S during the Restricted Period, (iii) the offer, sale and transfer
of such Shares is made in accordance with the provisions of Rule 903 or Rule
904 promulgated under the Securities Act; pursuant to registration of the
Shares under the Securities Act; or pursuant to an available exemption from the
registration requirements under the Securities Act; and (iv) a written opinion
of United States counsel, in form and substance reasonably satisfactory to
Seller, to the effect that the offer, sale and transfer of such shares are
exempt from registration under the Securities Act;
(c) all offering materials and documents (other than
press releases) used in connection with offers and sales during the Restricted
Period of any of the Shares purchased by the Purchaser hereunder shall include
statements to the effect that the Shares have not been registered under the
Securities Act and may not be offered or sold in the United States or to U.S.
Persons (other than distributors) unless the Shares are registered under the
Securities Act, or an exemption from the registration requirements of the
Securities Act is available, and such statements shall appear as required under
Rule 902(h)(2) promulgated under the Securities Act;
(d) the Purchaser agrees that, prior to the expiration of
the Restricted Period, it will not enter into any short sales or sales against
the box involving ▇▇▇▇▇▇▇▇▇▇▇▇ Common Stock or any derivative security position
involving ▇▇▇▇▇▇▇▇▇▇▇▇ Common Stock that increases in value as the value of the
Shares decreases, including, but not limited to, a long put option, short call
option or other put-equivalent position, equity swaps or any other "hedging"
agreement with regard to any of the Shares by which any such Purchaser shifts
any of the economic risk relating to the Shares to, or for the account or
benefit of, U.S. Persons or into the United States;
(e) the Purchaser understands and acknowledges that if it
re-offers all or any part of the Shares in the United States, the Purchaser
(and/or certain persons who participate in any such re-offer) may be deemed,
under certain circumstances, to be an "underwriter" as defined in section 2(11)
of the Securities Act; and
(f) the Purchaser will not, directly or indirectly,
voluntarily offer, sell, pledge, transfer or otherwise dispose of (or solicit
any offers to buy, purchase or otherwise acquire or take a pledge of) its
rights under this Agreement or the Shares otherwise than in compliance with
this Agreement and the Securities Act, any applicable state securities or blue
sky laws and any applicable securities laws of jurisdictions outside the United
States, and the rules and regulations promulgated thereunder.
IV. MISCELLANEOUS
4.1 Parties in Interest. This Agreement will be binding upon,
inure to the benefit of and be enforceable by the parties hereto and their
respective successors and permitted assigns.
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4.2 Entire Agreement; Amendments; Waiver. This Agreement contains
the entire understanding between the Seller, on the one hand, and the
Purchaser, on the other, with respect to its subject matter. This Agreement
may be amended only by written instrument duly executed by all of the parties
hereto. No party may waive any term, provision, covenant or restriction of
this Agreement except by duly signed writing referring to the specific
provision to be waived.
4.3 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be delivered personally
or transmitted by telex, fax or telegram, confirmed by certified mail (air mail
in the case of international communications) or internationally recognized
courier service, postage prepaid, to the respective parties as follows:
(a) If to the Seller, to:
Penn Virginia Equities Corporation
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇.▇.▇▇▇ 8985
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to:
Penn Virginia Corporation
One Radnor Corporate Center
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: A. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to the Purchaser, to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ Financial Group Ltd.
Global House
Grand Cayman
Cayman Islands
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as any party may have furnished to the other in
writing in accordance herewith.
4.4 Governing Law. This Agreement will be governed by and
construed in accordance with the internal laws of the Commonwealth of
Pennsylvania, without regard to the conflicts of laws provisions thereof.
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4.5 Severability of Provisions; Survival. Except as expressly set
forth herein to the contrary, if any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction to be invalid,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated. All representations,
warranties, covenants and agreements of the parties hereto shall survive the
purchase and sale of the Shares hereunder.
4.6 Counterparts; Headings. This Agreement may be executed in two
or more counterparts, each of which shall be deemed to be an original, but all
of which together shall constitute one and the same document. The article and
section headings contained herein are for reference purposes only and shall not
affect in any way the meaning or interpretation of this Agreement.
4.7 Assignment. None of the parties to this Agreement may assign
any of its rights or obligations under this Agreement without the prior written
consent of the other parties hereto.
4.8 Expenses. Each of the parties hereto shall pay the fees and
expenses it incurs in connection with this Agreement, other than as a result of
the breach hereof by any other party hereto.
4.9 Certain Definitions. For purposes of this Agreement:
(a) "affiliate" shall have the meaning set forth in Rule
12b-2 promulgated under the Securities Exchange Act of 1934 or any successor
rule thereto.
(b) "beneficially owned" shall have the meaning set forth
in Rule 13d-3 promulgated under the Securities Exchange Act of 1934 or any
successor rule thereto.
(c) "directed selling efforts" shall have the meaning set
forth is Rule 902(b) promulgated under the Securities Act or any successor rule
thereto.
(d) "Regulation S" means Rule 901 through 904 promulgated
under the Securities Act or any successor rules thereto.
(e) "Securities Act" means the Securities Act of 1933, as
amended.
(f) "U.S. Person" shall have the meaning set forth in
Rule 902(o) promulgated under the Securities Act or any successor rule thereto.
(g) "United States" means the United States of America,
its territories and possessions, any state of the United States, and the
District of Columbia.
4.10 Submission to Jurisdiction. Each of the parties hereto
submits to the exclusive jurisdiction of the state courts of the Commonwealth
of Pennsylvania and the federal courts of the United States located in the
Commonwealth of Pennsylvania for purposes of any judicial
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proceedings arising out of the subject matter of this Agreement. Each of the
parties hereby designates the Secretary of State of the Commonwealth of
Pennsylvania as its agent upon whom any legal process may by served in
connection with such proceedings.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written.
▇▇▇▇▇▇ ▇▇▇▇▇▇ FINANCIAL GROUP LTD.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
PENN VIRGINIA EQUITIES CORPORATION
By: /s/ A. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: A. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
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