o Preliminary Proxy Statement
o Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
þ Definitive Proxy Statement
o Definitive Additional Materials
o Soliciting Material Pursuant to §240.14a-12
PATRIOT COAL CORPORATION
(Name of Registrant as Specified In Its Charter)
[COMPANY NAME]
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
þ No fee required.
o Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11.
1) Title of each class of securities to which transaction applies:
2) Aggregate number of securities to which transaction applies:
3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing
fee is calculated and state how it was determined):
4) Proposed maximum aggregate value of transaction:
5) Total fee paid:
o Fee paid previously with preliminary materials.
o Check box if any part of the fee is offset as provided by
Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting
fee was paid previously. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
We cordially invite you to attend a special meeting of the
stockholders of Patriot to be held at the Donald Danforth Plant
Science Center at 975 North Warson Road, St. Louis, MO63132 on
July 22, 2008 at 10:00 a.m., local time.
On April 2, 2008, Patriot Coal Corporation entered into an
Agreement and Plan of Merger with Magnum Coal Company, Colt
Merger Corporation, which is a wholly owned subsidiary of
Patriot, and ArcLight Energy Partners Fund I, L.P. and
ArcLight Energy Partners Fund II, L.P., acting jointly, as
stockholder representative. Magnum is a privately held company
whose majority stockholders are ArcLight Energy Partners
Fund I, L.P. and ArcLight Energy Partners Fund II,
L.P. At the effective time of the merger contemplated by the
merger agreement, Colt Merger Corporation will merge with and
into Magnum, and as a result Magnum will become a wholly owned
subsidiary of Patriot. If the merger is completed, the issued
and outstanding shares of the common stock of Magnum at the time
of the merger will be converted into the right to receive up to
11,901,729 shares of the common stock, par value $0.01 per
share, of Patriot, subject to downward adjustment in limited
circumstances. The Patriot common stock issuable in the merger
represents approximately 31% of the sum of the number of
outstanding shares of Patriot common stock as of the date of the
merger agreement plus the number of shares of Patriot common
stock to be issued in the merger. Pursuant to the rules of the
New York Stock Exchange, the principal securities exchange on
which Patriot common stock is listed, the issuance of Patriot
common stock in the merger requires approval of Patriot’s
stockholders because the issuance exceeds 20% of the number of
shares of Patriot common stock outstanding prior to the issuance.
At the special meeting, you will be asked to consider and vote
on the proposal to approve the issuance of shares of Patriot
common stock issuable to the holders of Magnum common stock
pursuant to the merger agreement.
The board of directors of Patriot has determined that the merger
agreement and the merger are advisable and in the best interests
of Patriot stockholders and has approved and adopted the merger
agreement and the merger. Accordingly, the board of directors
of Patriot recommends that you vote “FOR” approving
the issuance of Patriot common stock issuable to the holders of
Magnum common stock pursuant to the merger agreement.
Your vote is very important. We cannot complete the merger
without the approval of the issuance of Patriot common stock
issuable to the holders of Magnum common stock in the merger.
This approval requires the affirmative vote of a majority of the
votes cast by all Patriot stockholders at the special meeting
where the total vote cast represents over fifty percent in
interest of the Patriot common stock entitled to vote on the
issuance. Even if you plan to attend the special meeting, we
recommend that you submit your proxy so that your vote will be
counted if you later decide not to attend the meeting. You can
also authorize the voting of your shares via the Internet or by
telephone as provided in the instructions set forth on the
enclosed proxy card. If you hold shares through the Patriot Coal
Corporation 401(k) Retirement Plan, your proxy will also serve
as voting instructions to the trustee of the plan. If you hold
your shares in “street name” through a broker, you
should follow the procedures provided by your broker.
The accompanying proxy statement/prospectus explains the
proposed merger in greater detail. We urge you to read this
proxy statement/prospectus, including the matters discussed
under “Risk Factors” beginning on page 19,
carefully.
Sincerely,
Richard M. Whiting
President and Chief Executive Officer
Neither the Securities and Exchange Commission nor any state
securities regulator has approved or disapproved the merger
described in this proxy statement/prospectus or the Patriot
common stock to be issued in connection with the merger or
determined if this proxy statement/prospectus is accurate or
adequate. Any representation to the contrary is a criminal
offense.
This proxy
statement/prospectus is dated June 17, 2008
and is first being mailed to Patriot stockholders on or about
June 20, 2008.
This proxy statement/prospectus forms a part of a registration
statement on
Form S-4
(Registration No. 333-150897) filed by Patriot with the
Securities and Exchange Commission. It constitutes a prospectus
of Patriot under Section 5 of the Securities Act of 1933,
as amended, and the rules thereunder, with respect to the shares
of Patriot common stock to be issued to Magnum stockholders in
the merger. In addition, it constitutes a proxy statement under
Section 14(a) of the Securities Exchange Act of 1934, as
amended, and the rules thereunder, and a notice of meeting with
respect to the Patriot special meeting of stockholders at which
Patriot stockholders will consider and vote on the proposal to
approve the issuance of Patriot common stock issuable to the
holders of Magnum common stock in the merger.
NOTICE
OF SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD ON JULY 22, 2008
To the Stockholders of Patriot Coal
Corporation:
A special meeting of stockholders of Patriot Coal Corporation
will be held at the Donald Danforth Plant Science Center at 975
North Warson Road, St. Louis, MO63132 on July 22, 2008 at
10:00 a.m., local time. The meeting will be held for the
following purposes:
1. To vote on the proposal to approve the issuance of up to
11,901,729 shares of Patriot common stock to the holders of
common stock of Magnum Coal Company pursuant to the Agreement
and Plan of Merger dated as of April 2, 2008, among
Patriot, Magnum, Colt Merger Corporation, which is a wholly
owned subsidiary of Patriot, and ArcLight Energy Partners
Fund I, L.P. and ArcLight Energy Partners Fund II,
L.P., acting jointly, as stockholder representative; and
2. To transact such other business as may properly come
before the meeting or any properly reconvened meeting following
an adjournment or postponement thereof.
Only stockholders of record at the close of business on
June 16, 2008 will be entitled to vote at the special
meeting either in person or by proxy. Each of these stockholders
is cordially invited to be present and vote at the special
meeting in person.
Registration for the special meeting will begin at
9:00 a.m., local time. Each stockholder may be asked to
present valid picture identification, such as a driver’s
license or passport. If you own shares in “street
name” and you wish to vote at the special meeting in
person, you will need to ask your bank or broker for an
admission card in the form of a confirmation of beneficial
ownership. You will need to bring a confirmation of beneficial
ownership with you to vote at the special meeting. If you do not
receive your confirmation of beneficial ownership in time, bring
your most recent brokerage statement with you to the special
meeting. We can use that to verify your ownership of Patriot
common stock and admit you to the meeting; however, you will not
be able to vote your shares at the meeting without a
confirmation of beneficial ownership.
Your vote is very important. We cannot complete the merger
without the approval of the issuance of Patriot common stock
issuable to the holders of Magnum common stock in the merger.
Whether you expect to attend the special meeting or not,
please complete, sign, date and promptly return the enclosed
proxy card in the accompanying envelope. You can also authorize
the voting of your shares via the Internet by visiting the
websitewww.voteproxy.com and following the voting
instructions provided or by telephone from the United States,
Canada or Puerto Rico, by dialing
1-800-PROXIES
and following the recorded instructions. The telephone and
Internet voting facilities for the stockholders of record of all
shares, other than those held in the Patriot Coal Corporation
401(k) Retirement Plan, close at 10:59 p.m. Central
Time on July 21, 2008. The Internet and telephone voting
procedures are designed to authenticate stockholders by use of a
control number and to allow you to confirm your instructions
have been properly recorded.
If you hold shares of Patriot common stock in the Patriot Coal
Corporation 401(k) Retirement Plan, you will receive a single
proxy/voting instruction card with respect to all shares
registered in your name, whether inside or outside of the plan.
If your accounts inside and outside of the plan are not
registered in the same name, you will receive a separate
proxy/voting instruction card with respect to the shares
credited in your plan account. Voting instructions regarding
plan shares must be received by 10:59 p.m. Central
Time on July 21, 2008, and all telephone and Internet
voting facilities with respect to plan shares will close at that
time. If you hold your shares in “street name” through
a broker, you should follow the procedures provided by your
broker. Your prompt response is necessary to assure that your
shares are represented at the special meeting.
The board of directors of Patriot recommends that you vote
“FOR” approving the issuance of Patriot common stock
issuable to the holders of Magnum common stock pursuant to the
merger agreement.
Joseph W. Bean
Senior Vice President, General
Counsel & Corporate Secretary
The following section provides answers to frequently asked
questions about the transaction. This section, however, provides
only summary information. Patriot urges you to read carefully
the remainder of this proxy statement/prospectus, including the
annexes to this proxy statement/prospectus, because the
information in this section does not provide all the information
that might be important to you regarding the merger and the
issuance of Patriot common stock being considered at the special
meeting. References in this proxy statement/prospectus to
“you” refer to Patriot stockholders and references to
“we” or “us” refer to Patriot. References in
this proxy statement/prospectus to Patriot refer to Patriot and
its subsidiaries, and references to Magnum refer to Magnum and
its subsidiaries, in each case, unless the context otherwise
requires.
Q:
What is the transaction?
A:
Patriot has entered into an Agreement and Plan of Merger dated
as of April 2, 2008, among Patriot, Magnum Coal Company,
Colt Merger Corporation, a wholly owned subsidiary of Patriot,
and ArcLight Energy Partners Fund I, L.P. and ArcLight
Energy Partners Fund II, L.P., acting jointly, as
stockholder representative. In the merger, Colt Merger
Corporation will merge with and into Magnum, with Magnum
surviving the merger and becoming a wholly owned subsidiary of
Patriot. In the merger, up to 11,901,729 shares of Patriot
common stock will be issued to Magnum stockholders.
Q:
What is this document?
A:
This document constitutes a proxy statement and a notice of
meeting with respect to the Patriot special meeting of
stockholders at which Patriot stockholders will consider and
vote on the proposal to approve the issuance of Patriot common
stock issuable to the holders of Magnum common stock in the
merger. This document also constitutes a prospectus of Patriot
with respect to the shares of Patriot common stock to be issued
to Magnum stockholders pursuant to the merger agreement.
Q:
What am I being asked to vote on?
A:
You are being asked to vote on the proposed issuance of up to
11,901,729 shares of Patriot common stock to the holders of
common stock of Magnum Coal Company pursuant to the merger
agreement. The merger cannot be completed without the approval
of the issuance of Patriot common stock issuable to the holders
of Magnum common stock pursuant to the merger agreement.
Q:
Why is approval by Patriot stockholders required for this
transaction?
A:
The Patriot common stock issuable in the merger represents
approximately 31% of the sum of the number of outstanding shares
of Patriot common stock as of the date of the merger agreement
plus the number of shares of Patriot common stock to be issued
in the merger. The rules of the New York Stock Exchange, the
principal securities exchange on which Patriot common stock is
listed, require Patriot stockholder approval of the issuance
because the issuance exceeds 20% of the number of shares of
Patriot common stock outstanding prior to such issuance.
Q:
How does the board of directors of Patriot recommend that I
vote?
A:
The board of directors of Patriot recommends that you vote
“FOR”approving the issuance of Patriot common
stock issuable to the holders of Magnum common stock pursuant to
the merger agreement.
Q:
Who can vote at the special meeting?
A:
You can vote at the special meeting if you owned shares of
Patriot common stock at the close of business on June 16,2008, the record date for the special meeting. At the close of
business on the record date, approximately
26,755,877 shares of Patriot common stock were outstanding.
Q:
What vote of Patriot stockholders is required to approve the
issuance of Patriot common stock?
A:
The approval of the issuance of Patriot common stock issuable to
the holders of Magnum common stock pursuant to the merger
agreement requires the affirmative vote of a majority of the
votes cast by all Patriot stockholders at the special meeting
where the total vote cast represents over fifty percent in
interest of the
Patriot common stock entitled to vote on the issuance. Because
the required vote of Patriot stockholders is based upon the
number of votes cast, rather than upon the number of shares of
Patriot common stock outstanding, any shares for which a holder
does not submit a proxy or vote in person at the special
meeting, including abstentions and broker non-votes, will not be
counted in connection with the proposal to approve the issuance
of the Patriot common stock issuable pursuant to the merger
agreement and will not be treated as a vote cast at the special
meeting for purposes of determining whether the vote cast
represents over fifty percent in interest of the Patriot common
stock entitled to vote on the issuance. Also, failure to submit
a proxy or to attend the special meeting could result in the
failure to obtain a quorum for the special meeting, which is
necessary to hold the meeting. The presence of stockholders at
the meeting, in person or by proxy, representing a majority of
Patriot’s issued and outstanding common stock constitutes a
quorum.
Q:
Where and when is the special meeting of Patriot
stockholders?
A:
The special meeting will be held at the Donald Danforth Plant
Science Center at 975 North Warson Road, St. Louis, MO63132 on
July 22, 2008 at 10:00 a.m., local time.
Q:
What do I need to do now?
A:
If you are a stockholder of record, after carefully reading and
considering the information contained in this proxy
statement/prospectus, please complete, sign and date your proxy
and return it in the enclosed return envelope as soon as
possible, so that your shares may be represented at the special
meeting. If you sign and send in your proxy and do not indicate
how you wish to vote, Patriot will count your proxy as a vote in
favor of the issuance of Patriot common stock pursuant to the
merger agreement. You can also authorize the voting of your
shares via the Internet by visiting the websitewww.voteproxy.com and following the instructions provided
or by telephone from the United States, Canada or Puerto Rico,
by dialing
1-800-PROXIES
and following the recorded instructions. The telephone and
Internet voting facilities for the stockholders of record of all
shares, other than those held in the Patriot Coal Corporation
401(k) Retirement Plan, close at 10:59 p.m. Central
Time on July 21, 2008. The Internet and telephone voting
procedures are designed to authenticate stockholders by use of a
control number and to allow you to confirm your instructions
have been properly recorded.
If you hold Patriot shares through the Patriot Coal Corporation
401(k) Retirement Plan or in “street name” through a
broker, see the discussion below.
Q:
If I hold Patriot shares through the Patriot Coal Corporation
401(k) Retirement Plan, how will my shares be voted?
A:
If you hold shares of Patriot common stock in the Patriot Coal
Corporation 401(k) Retirement Plan, you will receive a single
proxy/voting instruction card with respect to all shares
registered in your name, whether inside or outside of the plan.
If your accounts inside and outside of the plan are not
registered in the same name, you will receive a separate
proxy/voting instruction card with respect to the shares
credited in your plan account. Voting instructions regarding
plan shares must be received by 10:59 p.m. Central
Time on July 21, 2008, and all telephone and Internet
voting facilities with respect to plan shares will close at that
time. Your proxy will serve as voting instructions to
Vanguard Fiduciary Trust Company, trustee of the plan. Plan
participants should indicate their voting instructions to the
trustee by completing and returning the proxy/voting instruction
card, by using the toll-free telephone number or by indicating
their instructions over the Internet. All voting instructions
from plan participants will be kept confidential.
If you submit a valid proxy by mail, telephone or the Internet,
your shares held through the Patriot Coal Corporation 401(k)
Retirement Plan will be voted as instructed by you in accordance
with that proxy. If you submit a proxy and do not indicate how
you wish to vote, the trustee of the plan will vote your shares
in favor of the issuance of Patriot common stock pursuant to the
merger agreement. If you do not submit a valid proxy by
10:59 p.m. Central Time on July 21, 2008, your
shares held through the Patriot Coal Corporation 401(k)
Retirement Plan will be voted in the same proportion as those
shares in the Patriot Coal Corporation 401(k) Retirement Plan
for which voting instructions have been received.
If my Patriot shares are held in “street name” by
my broker, will my broker vote my shares for me?
A:
Your broker will vote your Patriot shares only if you provide
instructions to your broker on how to vote. You should follow
the directions provided by your broker regarding how to instruct
your broker to vote your shares. Without instructions, your
shares will not be voted and will have no effect on the vote for
the proposal to approve the issuance of Patriot common stock
pursuant to the merger agreement and will not be treated as a
vote cast at the special meeting for purposes of determining
whether the vote cast represents over fifty percent in interest
of the Patriot common stock entitled to vote on the issuance.
Q:
Can I change my vote?
A:
Yes. You can change your vote at any time before your proxy is
voted at the special meeting. If you are a stockholder of
record, you can do this in one of three ways. First, you can
send a written notice stating that you would like to revoke your
proxy. Second, you can complete and submit a new valid proxy
bearing a later date by the Internet, telephone or mail. If you
choose to send a written notice or to mail your new proxy, you
must submit your notice of revocation or your new proxy to
Patriot Coal Corporation at 12312 Olive Boulevard,
Suite 400, St. Louis, Missouri63141, Attention:
Corporate Secretary. Third, you can attend the special meeting
and vote in person the shares you own of record. Attendance at
the special meeting will not in and of itself constitute
revocation of a proxy.
If you hold shares of Patriot common stock through the Patriot
Coal Corporation 401(k) Retirement Plan you may change your
voting instructions to the plan trustee by submitting a new
valid proxy bearing a later date by the Internet, telephone or
mail. To allow sufficient time for voting by the plan
trustee, any changes in your voting instructions must be
received by 10:59 p.m., Central Time, July 21,2008.
If your shares are held in “street name”, you may
change your vote by submitting new voting instructions to your
broker in accordance with the procedures established by it.
Please contact your broker and follow its directions in order to
change your vote.
Q:
What do I need to do to attend the Special Meeting?
A:
If you are a stockholder of record or a participant in the
Patriot Coal Corporation 401(k) Retirement Plan, your admission
card is attached to your proxy card or voting instruction form.
You will need to bring this admission card with you to the
special meeting. If you own shares in “street name”
and you wish to vote at the special meeting in person, you will
need to ask your bank or broker for an admission card in the
form of a confirmation of beneficial ownership. You will need to
bring a confirmation of beneficial ownership with you to vote at
the special meeting. If you do not receive your confirmation of
beneficial ownership in time, bring your most recent brokerage
statement with you to the special meeting. We can use that to
verify your ownership of Patriot common stock and admit you to
the meeting; however, you will not be able to vote your shares
at the meeting without a confirmation of beneficial ownership.
Q:
Should I send in my stock certificates?
A:
No. You will not receive any cash or securities in this
transaction. You will continue to hold your existing shares of
Patriot common stock.
Q:
When do you expect the merger to be completed?
A:
We are working to complete the merger as quickly as possible. If
the issuance of Patriot common stock to the holders of Magnum
common stock pursuant to the merger agreement is approved by
Patriot stockholders, it is anticipated that the merger will be
completed promptly thereafter. However, it is possible that
factors outside our control could require us to complete the
merger at a later time or not complete it at all.
Q:
Are dissenters’ rights available to Patriot
stockholders?
A:
No. Patriot stockholders have no dissenters’ rights
under Delaware law in connection with this transaction. See
“The Merger — Dissenters’ Rights”on page 76.
If you have any questions about the transaction or the special
meeting, or if you need additional copies of this proxy
statement/prospectus or the enclosed proxy, you should contact:
This summary highlights selected information from this proxy
statement/prospectus and may not contain all the information
that is important to you. To understand the transaction fully
and for a more complete description of the legal terms of the
transaction, you should carefully read this entire proxy
statement/prospectus and the other documents to which we refer
you, including, in particular, the copies of the merger
agreement, the voting agreement and the opinions of Lehman
Brothers and Duff & Phelps, LLC that are attached to
this proxy statement/prospectus as Annexes A, B, C and D,
respectively. See also “Where You Can Find More
Information”on page 243. We have included page
references to direct you to a more complete description of the
topics presented in this summary. References in this proxy
statement/prospectus to “you” refer to Patriot
stockholders and references to “we” or “us”
refer to Patriot. References in this proxy statement/prospectus
to Patriot refer to Patriot Coal Corporation and its
subsidiaries, and references to Magnum refer to Magnum Coal
Company and its subsidiaries, in each case, unless the context
otherwise requires.
Patriot has entered into an Agreement and Plan of Merger dated
as of April 2, 2008, referred to herein as the merger
agreement, with Magnum Coal Company, Colt Merger Corporation,
which is a wholly owned subsidiary of Patriot, and ArcLight
Energy Partners Fund I, L.P. and ArcLight Energy Partners
Fund II, L.P., acting jointly, as stockholder
representative. Pursuant to the merger agreement, at the
effective time of the merger, Colt Merger Corporation will merge
with and into Magnum, and as a result Magnum will become a
wholly owned subsidiary of Patriot. If the merger is completed,
the issued and outstanding shares of the common stock of Magnum
will be converted into the right to receive up to
11,901,729 shares of the common stock, par value $0.01 per
share, of Patriot, subject to downward adjustment in limited
circumstances.
Immediately following execution and delivery of the merger
agreement, stockholders of Magnum representing approximately 99%
of the outstanding shares of Magnum common stock executed
written consents approving the merger agreement and the merger.
No further vote or approval of the stockholders of Magnum is
required in connection with the consummation of the merger.
Ownership
of Patriot Following the Merger (page 71)
Based on the number of shares of Patriot common stock
outstanding on the date of the merger agreement, the Patriot
common stock issuable to the holders of Magnum common stock in
the merger represents approximately 31% of the sum of the number
of outstanding shares of Patriot common stock as of the date of
the merger agreement plus the number of shares of Patriot common
stock to be issued in the merger. In this proxy
statement/prospectus, we sometimes refer to the ownership of
Patriot common stock relative to the sum of the number of
outstanding shares of Patriot common stock as of the date of the
merger agreement plus the number of shares of Patriot common
stock to be issued in the merger as ownership on a “pro
forma” basis for the issuance in the merger. In addition,
references to percentage ownership by any Magnum stockholder or
group of Magnum stockholders of Patriot common stock on a pro
forma basis for the issuance in the merger are based upon the
application of certain assumptions described in “TheMerger — Financing Arrangements — Magnum
Convertible Notes Issuance.”Upon consummation of the
merger, Magnum’s largest stockholders, ArcLight Energy
Partners Fund I, L.P. and ArcLight Energy Partners
Fund II, L.P. (which we refer to together as the ArcLight
Funds), will collectively hold approximately 16.9% of Patriot
common stock on a pro forma basis for the issuance in the
merger, and will be Patriot’s largest stockholder.
Recommendation
of the Patriot Board of Directors (page 50)
The board of directors of Patriot recommends a vote
“FOR”approving the issuance of Patriot common
stock to the holders of Magnum common stock pursuant to the
merger agreement.
Lehman Brothers delivered its opinion to Patriot’s board of
directors that as of April 2, 2008, and based upon and
subject to the factors and assumptions set forth in the opinion,
from a financial point of view, the consideration to be paid by
Patriot in the merger is fair to Patriot. The full text of the
written opinion of Lehman Brothers, dated April 2, 2008,
which sets forth the assumptions made, procedures followed,
matters considered and limitations on the review undertaken in
connection with the opinion, is attached as Annex C to this
proxy statement/prospectus. Patriot stockholders are encouraged
to read the opinion in its entirety. Lehman Brothers provided
its opinion for the information and assistance of the Patriot
board of directors in connection with its consideration of the
transaction. The Lehman Brothers opinion is not a recommendation
as to how any holder of Patriot common stock should vote with
respect to the transaction.
Opinion
of Duff & Phelps (page 59)
Duff & Phelps, LLC delivered its opinion to
Patriot’s board of directors that as of April 2, 2008,
and based upon and subject to the factors and assumptions set
forth in the opinion, the consideration to be paid by Patriot in
the merger is fair, from a financial point of view, to Patriot.
The full text of the written opinion of Duff & Phelps,
dated April 2, 2008, which sets forth the assumptions made,
procedures followed, matters considered and limitations on the
review undertaken in connection with the opinion, is attached as
Annex D to this proxy statement/prospectus. Patriot
stockholders are encouraged to read the opinion in its entirety.
Duff & Phelps provided its opinion for the information
and assistance of the Patriot board of directors in connection
with its consideration of the transaction. The Duff &
Phelps opinion is not a recommendation as to how any holder of
Patriot common stock should vote with respect to the transaction.
Interests
of Certain Persons in the Transaction
(page 66)
Patriot’s officers and directors own Patriot common stock
and have been granted certain equity-based incentive awards,
none of which will vest or be adjusted or otherwise changed as a
result of the merger. Except for the interests inherent in the
ownership of Patriot common stock and these equity awards,
Patriot’s officers and directors do not have any material
interests that arise as a result of the merger.
The officers, directors and certain affiliates of Magnum may
have interests in the merger that differ from other stockholders
of Magnum.
Comparison
of Rights of Patriot Stockholders and Magnum Stockholders
(page 236)
The rights of Patriot stockholders, which are currently governed
by Patriot’s certificate of incorporation, Patriot’s
by-laws, the Rights Agreement dated as of October 22, 2007,
as amended, between Patriot and American Stock
Transfer & Trust Company, as rights agent, which
we refer to in this proxy statement/prospectus as the rights
agreement, and Delaware law, will not be affected by the merger.
Magnum stockholders, whose rights are currently governed by
Magnum’s certificate of incorporation, Magnum’s
by-laws, Delaware law and, for certain Magnum stockholders, a
Stockholders Agreement, dated as of March 21, 2006, among
Magnum and the investors party thereto, will, upon completion of
the merger, become stockholders of Patriot and their rights will
be governed by the Patriot certificate of incorporation, the
Patriot by-laws, Patriot’s rights agreement, Delaware law
and, for certain Magnum stockholders, the voting agreement
(described below).
The special meeting of Patriot stockholders will be held on
July 22, 2008 at 10:00 a.m., local time, at the Donald
Danforth Plant Science Center at 975 North Warson Road, St.Louis, MO63132. At the special meeting, Patriot stockholders
will be asked to vote on the proposal to approve the issuance of
Patriot common stock to the holders of Magnum common stock
pursuant to the merger agreement and to transact such other
business as may properly come before the meeting.
Record
Date; Shares Entitled to Vote; Required Vote; Quorum
(page 43)
Patriot stockholders are entitled to vote at the special meeting
if they owned shares of Patriot common stock at the close of
business on June 16, 2008, the record date. On the record
date, there were approximately 26,755,877 shares of Patriot
common stock outstanding. Stockholders will be entitled to one
vote for each share of Patriot common stock that they owned on
the record date on all matters submitted to a vote at the
special meeting.
The approval of the issuance of Patriot common stock to the
holders of Magnum common stock pursuant to the merger agreement
requires the affirmative vote of a majority of the votes cast by
all stockholders at the special meeting where the total vote
cast represents over fifty percent in interest of the Patriot
common stock entitled to vote on the issuance. The presence at
the special meeting, in person or by proxy, of stockholders
entitled to cast at least a majority of the votes that all
stockholders are entitled to cast at the special meeting will
constitute a quorum, which is necessary to hold the meeting.
Shares
Owned by Patriot Directors and Executive Officers
(page 43)
On the record date, directors and executive officers of Patriot
beneficially owned and were entitled to vote, in the aggregate,
approximately 325,073 shares of Patriot common stock, which
represented approximately 1.215% of the shares of Patriot common
stock outstanding on the record date. The directors and
executive officers of Patriot have informed Patriot that they
intend to vote all of their shares of Patriot common stock
“FOR”approval of the issuance of Patriot
common stock to the holders of Magnum common stock pursuant to
the merger agreement.
Material
United States Federal Income Tax Consequences of the Transaction
(page 71)
Holders of Patriot common stock will not recognize gain or loss
for United States federal income tax purposes as a result of the
merger.
Assuming the merger qualifies as a reorganization under
Section 368(a) of the Internal Revenue Code of 1986, as
amended, which we refer to as the Code, holders of Magnum common
stock generally will not recognize gain or loss upon the
exchange of their Magnum common stock for Patriot common stock.
Although the merger has been structured and is intended to
qualify as a reorganization, neither Magnum nor Patriot has
sought an opinion of counsel or intends to request a ruling from
the Internal Revenue Service, which we refer to as the IRS, as
to the United States federal income tax consequences of the
merger. Consequently, no assurance can be given that the IRS
will not assert, or that a court would not sustain, a position
contrary to any of those set forth below in “Material
United States Federal Income Tax Consequences of the
Merger.” Magnum stockholders should consult their tax
advisors regarding the foreign, United States federal, state or
local tax consequences of the merger.
The merger agreement is attached as Annex A to this
proxy statement/prospectus. We encourage you to read the merger
agreement carefully and in its entirety because it is the
principal document governing the merger.
Conditions
to the Completion of the Merger (page 78)
Patriot and Magnum are obligated to complete the merger only if
certain conditions precedent are satisfied, including the
following:
•
the issuance of Patriot common stock to the holders of Magnum
common stock pursuant to the merger agreement has been approved
by the affirmative vote of a majority of the votes cast by
Patriot stockholders at the special meeting where the total vote
cast represents over fifty percent in interest of the Patriot
common stock entitled to vote on the issuance;
no court order or injunction prohibits consummation of the
merger and no applicable federal, state or local law,
regulation, or other similar requirement has been enacted that
prohibits consummation of the merger;
•
the waiting period under the
Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended, which we refer
to as the HSR Act, applicable to the merger, including any such
waiting period relating to the issuance of Patriot common stock
in respect of any filing by the ArcLight Funds and the parent of
Cascade Investment, L.L.C., has expired or has been terminated;
•
the registration statement relating to the issuance of Patriot
common stock in the merger, of which this proxy
statement/prospectus forms a part, has been declared effective
and no stop order suspending the effectiveness of the
registration statement is in effect, and no proceeding for that
purpose is pending before or threatened by the Securities and
Exchange Commission, which we refer to as the SEC;
•
the shares of Patriot common stock to be issued in the merger
have been approved for listing on the New York Stock Exchange,
subject to official notice of issuance;
•
the representations and warranties of the other party being true
and correct at the effective time, except in most cases as would
not reasonably be expected to have a material adverse effect (as
defined in the merger agreement);
•
performance by the other party of its obligations under the
merger agreement;
•
absence of a mining catastrophe suffered by the other party that
has involved, or would be reasonably likely to involve, a loss
of lives; and
•
other contractual conditions set forth in the merger agreement.
In addition, Patriot is obligated to complete the merger only if
the following additional conditions are satisfied:
•
Patriot shall have consummated up to a $150 million
subordinated bridge financing provided by the ArcLight Funds,
which we refer to as the ArcLight financing, or an alternate
financing of not less than the amount of the ArcLight financing
(which condition was satisfied upon consummation of the offering
of Patriot convertible notes, described below);
•
there is no pending suit, action or proceeding by any
governmental authority (and no applicable law, injunction or
order shall have been proposed or enacted by a governmental
authority that could, directly or indirectly, reasonably be
expected to result in any of the following consequences):
•
seeking to restrain, prohibit or otherwise interfere with the
ownership or operation by Patriot of all or a material portion
of the business or assets of Magnum or Patriot or to compel
Patriot to dispose of all or any material portion of the
business or assets of Magnum or Patriot;
•
seeking to impose or confirm limitations on the ability of
Patriot to exercise full rights of ownership of Magnum; or
•
seeking to require divestiture by Patriot of Magnum or any
material portion of Magnum’s or Patriot’s businesses
or assets; and
•
certain third party consents to the merger shall have been
obtained.
Termination
of the Merger Agreement; Termination Payment
(page 82)
The merger agreement may be terminated and the merger abandoned
at any time prior to the effective time, even after receipt of
Patriot stockholder approval for the issuance of Patriot common
stock to the holders of Magnum common stock.
The merger agreement may be terminated:
•
by mutual written agreement of Patriot and Magnum;
the merger has not been consummated by September 30, 2008,
which we refer to as the end date, provided that this right to
terminate will not be available to a party if its breach of the
merger agreement has caused the merger to fail to have been
consummated by such time;
•
any applicable law or a final nonappealable injunction prohibits
consummation of the merger; or
•
Patriot stockholders do not approve the issuance of Patriot
common stock to the holders of Magnum common stock at the
Patriot stockholders meeting; or
•
by Patriot, if:
•
a breach of Magnum’s representations and warranties or
covenants would result in a failure of the closing conditions to
be satisfied and Magnum is not using commercially reasonably
efforts to cure such breach or failure or such condition would
not reasonably be expected to be satisfied by the end
date; or
•
Magnum has notified Patriot that the closing condition relating
to the accuracy of Magnum’s representations and warranties
except for such exceptions that would not have a Magnum material
adverse effect is not capable of being satisfied, and Patriot
elects to terminate the merger agreement; or
•
by Magnum, if:
•
Patriot’s board of directors fails to make, withdraws, or
modifies in a manner adverse to Magnum, its recommendation that
Patriot’s stockholders approve the issuance of Patriot
common stock to the holders of Magnum common stock pursuant to
the merger agreement, with this termination right no longer
permitted after Patriot stockholder approval of the issuance of
Patriot common stock to the holders of Magnum common stock;
•
a breach of Patriot’s representations and warranties or
covenants would result in a failure of the closing conditions to
be satisfied and Patriot is not using commercially reasonably
efforts to cure such breach or failure or such condition would
not reasonably be expected to be satisfied by the end date;
•
Patriot enters into any agreement with respect to (1) a
merger, consolidation, share exchange, business combination,
reorganization, recapitalization, sale of all or substantially
all of its assets or other similar transaction that, in any such
case, requires the approval of Patriot stockholders under
Delaware law or (2) a transaction involving the issuance of
20% or more of its stock, and, in either such case, the record
date for the stockholder vote to approve such transaction occurs
prior to the closing date of the merger; or
•
Patriot has notified Magnum that the closing condition relating
to the accuracy of Patriot’s representations and warranties
except for such exceptions that would not have a Patriot
material adverse effect is not capable of being satisfied, and
Magnum elects to terminate the merger agreement.
If the merger agreement is terminated because:
•
Patriot stockholders do not approve the issuance of Patriot
common stock to the holders of Magnum common stock at the
Patriot stockholders meeting, or
•
Patriot’s board of directors fails to make, withdraws, or
modifies in a manner adverse to Magnum, its recommendation that
Patriot’s stockholders approve the issuance of Patriot
common stock to the holders of Magnum common stock pursuant to
the merger agreement,
and in either case certain of the other conditions to closing
have been satisfied or are capable of being satisfied reasonably
promptly, or
the merger has not been consummated by the end date and at the
time of termination, the closing condition relating to the
ArcLight financing is not satisfied solely as a result of a
potential claim of default under the Credit Agreement, dated as
of October 31, 2007, as amended, among Patriot, as
borrower, each lender from time to time party thereto, and Bank
of America, N.A., as Administrative Agent, Swing Line Lender and
L/C Issuer, which we refer to as the Patriot Credit Agreement,
relating to the terms of the ArcLight financing, and all other
closing conditions have been satisfied or are immediately
capable of being satisfied,
then Patriot will reimburse Magnum for its costs and expenses
incurred since January 1, 2008 in connection with the
transaction, subject to a maximum reimbursement of
$5 million. If the reimbursement obligation arises, it will
be Magnum’s exclusive remedy.
Indemnification
(page 87)
The merger agreement contains indemnification rights for the
benefit of Patriot for damages resulting from breaches of
Magnum’s representations and warranties, breaches of
Magnum’s covenants, any demands for appraisal from holders
of Magnum common stock, any lawsuits brought by holders of
Magnum common stock or holders of Magnum convertible notes
(described below) and any transaction expenses incurred by
Magnum in excess of the sum of $4 million and the amounts
paid to Magnum’s financial advisor with respect to the
merger. Ten percent of the shares of Patriot common stock to be
issued in the merger will be placed in escrow for one year to
provide indemnification to Patriot. The shares of Patriot common
stock that will be placed in escrow will be deducted from the
shares otherwise issuable to certain stockholders of Magnum who
have agreed to be responsible to Patriot for certain
indemnification obligations. We refer to these Magnum
stockholders as the designated stockholders. The designated
stockholders own approximately 99% of Magnum’s issued and
outstanding common stock. Subject to certain exceptions,
indemnification for breaches of Magnum’s representations
and warranties is subject to a $100,000 per claim de minimis
exception and a $6 million aggregate deductible.
Subject to certain exceptions, indemnification for breaches of
Magnum’s representations and warranties and breaches of
Magnum’s covenants is capped at the number of shares of
Patriot common stock held in escrow. The designated stockholders
of Magnum have also agreed to be directly liable with respect to
breaches of certain limited representations, warranties and
covenants, appraisal demands, Magnum stockholder or noteholder
lawsuits and excess transaction expenses, subject to a cap equal
to the net proceeds received by the designated stockholders in
the merger.
The merger agreement contains indemnification rights for the
benefit of the stockholders of Magnum for damages resulting from
breaches of Patriot’s representations and warranties and
breaches of Patriot’s covenants. Subject to certain
exceptions, indemnification for breaches of Patriot’s
representations and warranties is subject to a $100,000 per
claim de minimis exception, a $6 million deductible
and is capped at $54 million, provided that with respect to
breaches of certain limited representations and warranties,
Patriot’s indemnification obligations are capped at
$534 million, the approximate market value of Patriot
common stock, as of the date of the merger agreement, to be
received by the designated stockholders in the merger. The
rights of the stockholders of Magnum to pursue indemnity claims
are subject to certain limitations, including the requirement
that these claims must be brought by the stockholder
representative on behalf of the Magnum stockholders. The
indemnification provisions of the merger agreement are generally
the sole remedy for Patriot and the designated stockholders with
respect to breaches of the merger agreement by Magnum and
Patriot, respectively.
Change
in Patriot Board Recommendation (page 82)
The merger agreement provides that, except as required by
applicable law, the board of directors of Patriot may not
(1) withhold, withdraw, qualify, modify or amend (or
publicly propose or resolve to do any of the foregoing) its
recommendation that the Patriot stockholders approve the
issuance of the Patriot common stock issuable to the holders of
Magnum common stock in the merger or (2) approve or
recommend, or publicly propose to approve or recommend, any
agreement or transaction, or cause or permit Patriot to enter
into any agreement requiring Patriot to abandon, terminate or
fail to consummate the transactions contemplated by the merger
agreement or breach its obligations or resolve, propose or agree
to do any of the
foregoing. The Patriot board of directors is required to submit
the issuance of Patriot common stock pursuant to the merger
agreement to a vote of the stockholders of Patriot
notwithstanding any withholding, withdrawal, qualification,
modification or amendment of the board’s recommendation.
Regulatory
Matters (page 73)
Subject to the terms and conditions of the merger agreement,
Patriot and Magnum have agreed to use their respective
commercially reasonable efforts to take all actions and to do
all things necessary, proper or advisable under applicable law
to consummate the transactions contemplated by the merger
agreement, including preparing and making all filings and
notices with any applicable governmental authority or third
party in connection with the merger and obtaining all approvals,
consents and other confirmations required to be obtained from
any governmental authority or third party that are necessary,
proper or advisable to consummate the transactions contemplated
by the merger agreement. Neither Patriot nor Magnum is required
to enter into any settlement or agreement with any governmental
authority or to divest or hold separate any of its businesses,
assets or properties.
United States antitrust laws prohibit Patriot and Magnum from
completing the merger until they have furnished certain
information and materials to the Antitrust Division of the
Department of Justice and the Federal Trade Commission under the
HSR Act, and a required waiting period has ended. Patriot and
Magnum filed the required notification and report forms with the
Antitrust Division of the Department of Justice and the Federal
Trade Commission on April 30, 2008. In addition, each of
the ArcLight Funds and the parent of Cascade Investment, L.L.C.,
similarly filed notification and report forms on April 30,2008 in respect of the acquisition by such Magnum stockholders
of Patriot common stock in the merger. On May 12, 2008, the
Federal Trade Commission granted early termination of the HSR
Act waiting period relating to the filings by each of Patriot,
Magnum, the ArcLight Funds and the parent of Cascade Investment,
L.L.C.
Financing
Arrangements (page 73)
In connection with the merger agreement, Patriot obtained a
subordinated bridge financing commitment of up to
$150 million from the ArcLight Funds to be used by Patriot
at the effective time of the merger to repay a portion of the
senior secured indebtedness of Magnum and to pay related fees
and expenses. On May 28, 2008, Patriot completed a private
offering of $200 million in aggregate principal amount of
3.25% Convertible Senior Notes due 2013, which we refer to
as the Patriot convertible notes. Following the consummation of
the offering of the Patriot convertible notes, Patriot
terminated the ArcLight Funds’ financing commitment on
May 30, 2008. Patriot paid an aggregate of
$1.5 million in commitment fees to the ArcLight Funds in
connection with the financing commitment. As a result of the
consummation of the offering of the Patriot convertible notes,
the closing condition relating to Patriot’s consummation of
the ArcLight financing or an alternate financing has been
satisfied.
On March 26, 2008, Magnum issued $100 million in
aggregate principal amount of its 10% Senior Subordinated
Convertible Notes due 2013, which we refer to as the Magnum
convertible notes, to certain of its existing stockholders and
used the proceeds of such issuance to repay $100 million of
the senior secured indebtedness of Magnum. The Magnum
convertible notes, including any interest that has been added to
the principal thereof and any accrued and unpaid interest
thereon, will be converted into Magnum common stock immediately
prior to the effective time of the merger. The
11,901,729 shares of Patriot common stock to be issued to
the holders of common stock of Magnum pursuant to the merger
agreement include the shares of Patriot common stock to be
issued in respect of the Magnum common stock issued upon the
conversion of the Magnum convertible notes.
The outstanding senior secured indebtedness of Magnum (other
than capital leases) at the effective time of the merger will be
repaid (or defeased, in the case of certain letters of credit)
with proceeds from the offering of Patriot convertible notes
and/or
unrestricted cash or cash equivalents of Magnum.
In connection with the merger agreement, Patriot, ArcLight
Energy Partners Fund I, L.P. and ArcLight Energy Partners
Fund II, L.P., acting jointly, as stockholder
representative, and certain stockholders of Magnum entered into
a Voting and Standstill Agreement dated as of April 2,2008, which we refer to as the voting agreement. The voting
agreement, is attached as Annex B to this proxy
statement/prospectus. We encourage you to read the voting
agreement carefully and in its entirety because it contains
important terms.
Board
of Directors of Patriot Following the Merger
(page 90)
Pursuant to the voting agreement, effective as of the effective
time of the merger, Patriot’s board of directors will be
expanded from seven to nine members and the board of directors
will appoint two nominees designated by the Magnum stockholders,
acting through the ArcLight Funds as their stockholder
representative. One such nominee will serve as a Class I
director and the other nominee will serve as a Class II
director on Patriot’s board of directors. The nominees
initially designated for appointment are Robb E. Turner and
John F. Erhard, each of whom is affiliated with the
ArcLight Funds.
At such time as the Magnum stockholders party to the voting
agreement own (as determined in the manner described below) less
than twenty percent (but at least ten percent) of the Patriot
common stock outstanding or the ArcLight Funds own less than ten
percent of the Patriot common stock outstanding, the stockholder
representative will be entitled to one board nominee only. At
such time as the Magnum stockholders party to the voting
agreement own (as determined in the manner described below) less
than ten percent of the Patriot common stock outstanding, the
stockholder representative will not be entitled to any board
nominees. For purposes of the determination of ownership of
Patriot common stock by the Magnum stockholders party to the
voting agreement, for the purposes of board nominee rights under
the voting agreement, (1) the number of shares of Patriot
common stock outstanding is deemed to be equal to the sum of the
number of shares of Patriot common stock outstanding on the date
of the merger agreement and the number of Patriot shares issued
in the merger and (2) Magnum stockholders who agree to
limited versions of the “standstill” restrictions
described below will be deemed to have transferred a portion of
their Patriot shares, while Magnum stockholders who agree to the
fuller version of the standstill restrictions described below
will not be deemed to have transferred any portion of their
Patriot shares. It is anticipated that, as calculated in
accordance with these provisions, the relevant Magnum
stockholders will own approximately 23.4% of the Patriot common
stock outstanding as of the date of the merger agreement on a
pro forma basis for the issuance in the merger.
Voting
Obligations (page 90)
Pursuant to the voting agreement, so long as the stockholder
representative is entitled to nominate any members to
Patriot’s board of directors, holders of Magnum common
stock who are expected to hold approximately 30.5% of the
Patriot common stock outstanding as of the date of the merger
agreement on a pro forma basis for the issuance in the merger
have agreed to vote all of their shares of Patriot common stock
in favor of the entire slate of directors recommended for
election by the Patriot board of directors to Patriot’s
stockholders.
Pursuant to the voting agreement, so long as the stockholder
representative is entitled to nominate any members to
Patriot’s board of directors, holders of Magnum common
stock who are expected to hold approximately 25.5% of the
Patriot common stock outstanding as of the date of the merger
agreement on a pro forma basis for the issuance in the merger
have agreed to vote all of their shares of Patriot common stock
as recommended by Patriot’s board of directors in the case
of (1) any stockholder proposal submitted for a vote at any
meeting of Patriot’s stockholders and (2) any proposal
submitted by Patriot for a vote at any meeting of Patriot’s
stockholders relating to the appointment of Patriot’s
accountants or a Patriot equity compensation plan.
Pursuant to the voting agreement, certain Magnum stockholders
party to the voting agreement, representing approximately 28.0%
of the Patriot common stock outstanding as of the date of the
merger agreement on a pro forma basis for the issuance in the
merger will be subject to certain “standstill”
restrictions limiting their ability to acquire additional shares
of Patriot or take certain other actions. The scope of the
“standstill” restrictions differs amongst the Magnum
stockholders.
Transfer
Restrictions (page 92)
Pursuant to the voting agreement, the Magnum stockholders party
to the voting agreement, representing approximately 30.5% of the
Patriot common stock outstanding as of the date of the merger
agreement on a pro forma basis for the issuance in the merger,
will be subject to restrictions on their ability to transfer
shares of Patriot common stock as follows:
•
no transfers will be permitted for 180 days following the
effective time of the merger;
•
between 180 days after the effective time and 270 days
after the effective time, up to fifty percent of the shares may
be transferred;
•
between 270 days after the effective time and 360 days
after the effective time, up to seventy-five percent of the
shares may be transferred; and
•
no restrictions will apply after 360 days after the
effective time.
Registration
Rights (page 93)
Patriot has agreed to provide the ArcLight Funds with customary
registration rights with respect to the shares of Patriot common
stock issuable to the ArcLight Funds in the merger pursuant to a
registration rights agreement to be entered into at the
effective time of the merger.
Patriot Coal Corporation
12312 Olive Boulevard, Suite 400 St. Louis, Missouri63141
Telephone:
(314) 275-3600
Patriot Coal Corporation, a Delaware corporation, is a leading
producer and marketer of coal in the eastern United States, with
ten company-operated mines and numerous contractor-operated
mines in Appalachia and the Illinois Basin. Patriot ships to
electric utilities, industrial users and metallurgical coal
customers, and controls approximately 1.3 billion tons of
proven and probable coal reserves. Patriot’s common stock
trades on the New York Stock Exchange under the symbol PCX.
Magnum Coal Company
500 Lee Street East
Suite 900 Charleston, WV25301
Telephone:
(304) 380-0200
Magnum Coal Company, a Delaware corporation, is one of the
largest coal producers in Central Appalachia based on 2007
production. As of January 1, 2008, Magnum controlled proven
and probable reserves of 606.6 million tons of coal. Based
on 2007 production of 16.1 million tons, Magnum’s
reserve base could support similar levels of production for more
than 30 years.
Colt Merger Corporation
12312 Olive Boulevard, Suite 400 St. Louis, Missouri63141
Telephone:
(314) 275-3600
Colt Merger Corporation is a Delaware corporation and a wholly
owned subsidiary of Patriot. Colt Merger Corporation was
organized on March 5, 2008 solely for the purpose of
effecting the transactions contemplated by the merger agreement,
including the merger with Magnum.
Shares of Patriot common stock are listed on the New York Stock
Exchange under the symbol “PCX.”
On April 1, 2008, the last full trading day prior to the
public announcement of the merger, the closing sale price of
Patriot common stock on the New York Stock Exchange was $47.71.
On June 16, 2008, the latest practicable date before the
date of this proxy statement/prospectus, the closing sale price
of Patriot common stock on the New York Stock Exchange was
$154.36. Stockholders are urged to obtain current market
quotations for shares of Patriot common stock prior to making
any decision with respect to the approval of the issuance of
Patriot common stock to the holders of Magnum common stock
pursuant to the merger agreement. Patriot has not previously
declared any quarterly dividends.
Magnum is a privately-held company and no public market exists
for its common stock. Magnum has never declared or paid any cash
dividends on its common stock nor does it intend to do so.
The following table sets forth for the periods presented certain
per share information for Patriot and Magnum on a historical
basis and on an unaudited pro forma basis after giving effect to
the merger under the purchase method of accounting. The
historical per share information for Patriot and Magnum has been
derived from, and should be read in conjunction with, the
historical consolidated financial statements for the year ended
December 31, 2007 of Patriot and Magnum included in this
proxy statement/prospectus as Annexes E and F,
respectively, and as of and for the three months ended
March 31, 2008 included as Annexes G and H, respectively.
The unaudited pro forma per share information has been derived
from, and should be read in conjunction with, the unaudited pro
forma condensed combined financial information included in this
proxy statement/prospectus. See “Unaudited Pro Forma
Condensed Combined Financial Information.”
Comparative
Historical and Pro Forma Per Share Data
Patriot
Magnum
Pro Forma
Historical
Historical
Combined
Basic earnings (loss) from continuing operations per common
share:
The following table presents selected financial and other data
about Patriot for the most recent five fiscal years, as well as
the three months ended March 31, 2008 and 2007. The
historical financial and other data have been prepared on a
consolidated basis derived from Patriot’s consolidated
financial statements using the historical results of operations
and bases of the assets and liabilities of Patriot’s
businesses and give effect to allocations of expenses from
Peabody Energy Corporation, which we refer to as Peabody, the
former parent of Patriot. For periods prior to the spin-off of
Patriot from Peabody, which occurred on October 31, 2007,
the historical consolidated statement of income data set forth
below does not reflect changes that occurred in the operations
and funding of the company as a result of Patriot’s
spin-off from Peabody. The historical consolidated balance sheet
data set forth below reflects the assets and liabilities that
existed as of the dates and the periods presented.
The selected consolidated financial data should be read in
conjunction with, and are qualified by reference to,
“Management’s Discussion and Analysis of Financial
Condition and Results of Operations of Patriot”and the
historical financial statements and the accompanying notes
thereto of Patriot and Patriot’s consolidated subsidiaries
included elsewhere in this proxy statement/prospectus. The
consolidated statements of operations and cash flow data for
each of the three years in the period ended December 31,2007 and the consolidated balance sheet data as of
December 31, 2007 and 2006 are derived from Patriot’s
audited consolidated financial statements included elsewhere in
this proxy statement/prospectus, and should be read in
conjunction with those consolidated financial statements and the
accompanying notes. The consolidated balance sheet data as of
December 31, 2005 and the consolidated statement of
operations for the year ended December 31, 2004 were
derived from audited consolidated financial statements that are
not presented in this proxy statement/prospectus. The
consolidated statement of operations for the year ended
December 31, 2003 and the consolidated balance sheet data
as of December 31, 2004 and December 31, 2003 were
derived from Patriot’s unaudited financial statements. The
historical financial and other data relating to the three months
ended March 31, 2008 and 2007 has been derived from
Patriot’s unaudited consolidated financial statements and
the related notes included elsewhere in this proxy
statement/prospectus. In management’s opinion, these
unaudited consolidated financial statements have been prepared
on substantially the same basis as the audited financial
statements and include all adjustments, consisting only of
normal recurring adjustments, necessary for a fair presentation
of the financial data for the periods presented.
The financial information presented below may not reflect what
Patriot’s results of operations, cash flows and financial
position would have been had it operated as a separate,
stand-alone entity during the periods presented or what its
results of operations, financial position and cash flows will be
in the future. In addition, the “Risk Factors”section of this proxy statement/prospectus includes a
discussion of risk factors that could impact Patriot’s
future results of operations.
Net gain on disposal or exchange of assets included a
$37.4 million gain from an exchange of coal reserves as
part of a dispute settlement with a third-party supplier in
2005, gains of $66.6 million from sales of coal reserves
and surface lands in 2006 and gains of $78.5 million from
the sales of coal reserves and surface land in 2007. Net gain on
disposal or exchange of assets for the three months ended
March 31, 2007 included gains of $35.0 million from
sales of coal reserves and surface land.
(2)
In March 2006, Patriot increased its 49% interest in KE
Ventures, LLC to an effective 73.9% interest and began combining
KE Ventures, LLC’s results with its own effective
January 1, 2006. In 2007, Patriot purchased the remaining
interest. Prior to 2006, KE Ventures, LLC was accounted for on
an equity basis and included in income from equity affiliates in
Patriot’s statement of operations.
(3)
The charge to cumulative effect of accounting changes related to
the January 1, 2003 adoption of SFAS No. 143,
“Accounting for Asset Retirement Obligations” and the
change in method of amortizing actuarial gain and losses related
to net periodic postretirement benefit costs.
(4)
Patriot adopted SFAS No. 158, “Employers’
Accounting for Defined Benefit Pension and Other Postretirement
Plans” (SFAS No. 158) on December 31,2006, and as a result, increased noncurrent liabilities and
decreased total invested capital (accumulated other
comprehensive loss) by $322.1 million.
(5)
Adjusted EBITDA, when used in this proxy statement/prospectus
when referring to Patriot’s financial information, is
defined as net income (loss) before deducting net interest
expense, income taxes, minority interests, asset retirement
obligation expense, depreciation, depletion and amortization and
cumulative effect of accounting changes. Adjusted EBITDA is used
by management to measure operating performance, and management
also believes it is a useful indicator of Patriot’s ability
to meet debt service and capital expenditure requirements. The
term Adjusted EBITDA does not purport to be an alternative to
operating income, net income or cash flows from operating
activities as determined in accordance with GAAP as a measure of
profitability or liquidity. Because Adjusted EBITDA is not
calculated identically by all companies, Patriot’s
calculation may not be comparable to similarly titled measures
of other companies.
Adjusted EBITDA is calculated as follows (unaudited):
The following table sets forth Magnum’s summary historical
consolidated financial information for each year in the
three-year period ended December 31, 2007, which has been
derived from Magnum’s audited consolidated financial
statements, as well as Magnum’s unaudited consolidated
financial information for the three months ended March 31,2008 and 2007. Magnum was formed on October 5, 2005 by
ArcLight Energy Partners Fund I L.P. for the purpose of
acquiring certain properties from Arch Coal, Inc., Trout Coal
Holdings,
LLC and Dakota, LLC, which are referred to in this proxy
statement/prospectus as Arch Coal, Trout and Dakota,
respectively, and the labor companies associated with Trout and
Dakota. The properties and companies acquired from Trout and
Dakota are referred to in this proxy statement/prospectus as the
Magnum contributed properties. On December 31, 2005, Magnum
acquired properties from Arch Coal, referred to in this proxy
statement/prospectus as the Magnum acquired properties and
referred to in Magnum’s audited consolidated financial
statements as the Arch Properties.
On March 21, 2006, as part of a recapitalization of Magnum,
ArcLight Energy Partners Fund I L.P. and Timothy Elliott,
who we refer to as Elliott, contributed 100% of their equity
interests in Trout Coal Holdings, LLC and New Trout Coal
Holdings II, LLC, which together held all of the equity
interests in certain subsidiaries that now form part of the
Magnum group of companies, in exchange for common stock of
Magnum.
The historical financial information for each year in the
three-year period ended December 31, 2005 is that of
Magnum’s predecessor, the Magnum acquired properties, which
has been derived from the Magnum acquired properties’
audited consolidated financial statements. The business
represented by the historical financial position of the Magnum
acquired properties did not constitute a legal entity. The
separate operating information prepared for each of Hobet Mining
LLC, Apogee Coal Company, LLC, and Catenary Coal Company, LLC,
which we refer to as Hobet, Apogee and Catenary, respectively,
was combined to present the historical financial statements of
the Magnum acquired properties. The Magnum acquired properties
did not maintain their own stand-alone headquarters, treasury,
legal, tax and other similar corporate support functions.
Therefore, expenses for selling, general and administrative
expenses were allocated to the Magnum acquired properties from
Arch Coal, their ultimate parent, based on Arch Coal’s best
estimates of proportional costs of Arch Coal or incremental
costs as a stand-alone entity, whichever was more representative
of costs incurred by Arch Coal on behalf of the Magnum acquired
properties. Interest expense was allocated to the Magnum
acquired properties from Arch Coal in a similar fashion. The
Magnum acquired properties were included in federal and state
income tax returns as part of the Arch Coal consolidated group.
For purposes of the combined historical financial statements of
the Magnum acquired properties, the federal and state income
taxes attributable to the Magnum acquired properties were
calculated on a stand-alone basis.
The following data should be read in conjunction with
“Management’s Discussion and Analysis of Financial
Condition and Results of Operations of Magnum”,
“Management’s Discussion and Analysis of Pro Forma
Results of Operations of Magnum”, Magnum’s audited
consolidated financial statements for each of the three years in
the period ended December 31, 2007, the audited financial
statements of the Magnum acquired properties for the year ended
December 31, 2005, Magnum’s unaudited consolidated
financial statements for the three months ended March 31,2008 and 2007 and the related notes included elsewhere in this
proxy statement/prospectus. In addition, the “Risk Factors
relating to Magnum” section of this proxy
statement/prospectus includes a discussion of risk factors that
could impact Magnum’s future results of operations.
Certain reclassifications have been made to Magnum’s
historical financial results to conform to Patriot’s
definition of Adjusted EBITDA and Segment Adjusted EBITDA as
defined in “Management’s Discussion and Analysis of
Financial Condition and Results of Operations of Patriot”contained in this proxy statement/prospectus.
Three Months Ended
Year Ended December 31,
March 31,
Magnum Coal Company
Magnum Acquired Properties (Predecessor)
Magnum Coal Company
2007
2006
2005
2005
2004
2003
2008
2007
(Dollars in Thousands, except tons sold and per ton data)
Gain on exchange of mining reserves is an exchange of coal
reserves with a third party accounted for in accordance with
Statement of Financial Standards No. 153: Exchanges of
Nonmonetary Assets, an Amendment of APB No. 29, Accounting
for Nonmonetary Transactions.
(2)
During 2007, Magnum restructured a below market sales contract
to reduce future shipments in exchange for a discounted price on
tons remaining to be shipped. Magnum has reported a
$3.7 million deferred liability which is included on the
balance sheet as a part of the below market coal sales supply
contracts acquired liability. Magnum recognized
$0.4 million of revenue from the restructure of the
contract in 2007. During 2006, Magnum agreed to terms with two
large customers to restructure below market coal supply
agreements for $183.8 million. The portion of the payment
to buyout tons that would not be shipped of $25.5 million
was charged to expense. The balance of the payment was recorded
as prepaid coal sales contract restructuring and was amortized
to expense during 2006 and 2007 in sales contract amortization
(accretion).
(3)
Coal sales contracts acquired were recorded based upon the
estimated fair value of coal contracts at the date of
acquisition. Fair value was determined by an independent third
party based upon the difference between the stated contract
price and the price of contracts of similar duration and coal
quality net of royalties and taxes as of December 31, 2005.
Sales contract amortization (accretion) reflects expense or
income based on the difference between the fair value of the
contracts and the contract price and is based upon the shipments
under the affected contracts.
(4)
In 2006, it was determined that Dakota was no longer
economically viable to operate and the operations were
discontinued.
(5)
Accumulated other comprehensive income increased
stockholders’ equity by $79.7 million in 2007 due to
the adoption of SFAS No. 158.
(6)
Adjusted EBITDA, a supplemental measure used by Magnum to
measure operating performance, as used in this proxy
statement/prospectus when referring to Magnum’s financial
information, is defined as net income (loss), before giving
effect to losses or gains from discontinued operations, net
interest expense, income tax expense/(benefit), sales contract
amortization, (accretion), depreciation, depletion and
amortization, asset retirement obligation expense, change in
interest rate swap, loss on debt extinguishment and the
cumulative effect of changes in accounting principles. Magnum
believes that Adjusted EBITDA and the related ratios are useful
to investors because they are frequently used as a supplemental
measure of ongoing operations by securities analysts, investors
and other interested parties in the evaluation of companies in
the coal industry. Adjusted EBITDA is also widely used by Magnum
and others in the industry to evaluate and price potential
acquisition candidates. Among other things, Adjusted EBITDA
eliminates the impact of a number of items Magnum considers
non-recurring and not indicative of Magnum’s ongoing
operating performance. The term Adjusted EBITDA does not purport
to be an alternative to operating income, net income or cash
flows from operating activities as determined in accordance with
GAAP as a measure of profitability or liquidity. Because
Adjusted EBITDA is not calculated identically by all companies,
the Adjusted EBITDA presented above for Magnum may not be
comparable to similarly titled measures of other companies.
Each adjustment should be evaluated along with the reasons
Magnum considers them appropriate for supplemental analysis. In
the future Magnum may incur expenses similar to the ones
excluded from Adjusted EBITDA and readers are cautioned that
Magnum’s future results may be affected by unusual or
non-recurring items.
The following selected unaudited pro forma condensed combined
financial information is based upon the historical consolidated
financial information of Patriot and Magnum included elsewhere
in this proxy statement/prospectus, and has been prepared to
reflect the merger based on the purchase method of accounting,
with Patriot treated as the acquiror. The historical
consolidated financial information has been adjusted to give pro
forma effect to events that are directly attributable to the
merger and factually supportable and, in the case of the
statement of operations information, that are expected to have a
continuing impact. The selected unaudited pro forma condensed
combined financial information is derived from the financial
statements contained in this proxy statement/prospectus. See
“Unaudited Pro Forma Condensed Combined Financial
Information.”The unaudited pro forma condensed
combined balance sheet information has been prepared as of
March 31, 2008 and gives effect to the merger as if it had
occurred on that date. The unaudited pro forma condensed
combined statement of operations information, which has been
prepared for the year ended December 31, 2007 and for the
three months ended March 31, 2008, gives effect to the
merger as if it had occurred on January 1, 2007.
The unaudited pro forma condensed combined financial information
is presented for informational purposes only. The pro forma
information is not necessarily indicative of what the financial
position or results of operations actually would have been had
the merger been completed at the dates indicated. In addition,
the unaudited pro forma condensed combined financial information
does not purport to project the future financial position or
operating results of Patriot after completion of the merger.
The unaudited pro forma condensed combined financial information
does not give effect to any potential cost savings or other
operating efficiencies that could result from the merger. In
addition, Patriot’s cost to acquire Magnum will be
allocated to the assets acquired and liabilities assumed based
upon their estimated fair values as of the date of acquisition.
The allocation is dependent upon certain valuations and other
studies that have not progressed to a stage where there is
sufficient information to make a definitive allocation.
Accordingly, the purchase price allocation pro forma adjustments
are preliminary and have been made solely for the purpose of
providing unaudited pro forma condensed combined financial
information in this proxy statement/prospectus.
Patriot stockholders should consider carefully the matters
described below in determining whether to approve the issuance
of Patriot common stock to the holders of Magnum common stock
pursuant to the merger agreement.
The
total number of shares of Patriot common stock to be issued in
the merger is fixed.
If the merger is consummated, Patriot will issue an aggregate of
up to 11,901,729 shares of Patriot common stock to the
holders of Magnum common stock, subject to downward adjustment
only in the limited circumstance in which Magnum’s
transaction costs exceed a specified amount. The number of
shares of Patriot common stock to be issued to the holders of
Magnum common stock will not be adjusted for any other reason,
including changes in the market price of Patriot’s common
stock prior to the effective time of the merger. As a result,
depending on the market price of Patriot’s common stock,
the value of the consideration that Patriot is obligated to pay
in the merger may be greater than Patriot would have been
obligated to pay out in a variable exchange ratio merger.
The
integration of Patriot and Magnum following the merger may
present significant challenges.
Patriot may face significant challenges in combining
Magnum’s operations into its operations in a timely and
efficient manner and in retaining key Magnum personnel. The
failure to successfully integrate Patriot and Magnum and to
successfully manage the challenges presented by the integration
process may result in Patriot not achieving the anticipated
benefits of the merger.
Patriot
and Magnum will incur transaction, integration and restructuring
costs in connection with the merger.
Patriot and Magnum expect to incur costs associated with
transaction fees and other costs related to the merger.
Specifically, Patriot expects to incur approximately
$9.6 million for transaction costs related to the merger,
which costs are expected to be recorded as a component of the
purchase price. Magnum expects to incur approximately
$13.6 million for transaction costs related to the merger,
which costs will be expensed as incurred. Magnum’s actual
transaction costs will be partially based upon the price of
Patriot common stock at closing of the merger and accordingly
may change from this estimate. In addition, Patriot will incur
integration and restructuring costs following the completion of
the merger as it integrates the businesses of Patriot with those
of Magnum. Although Patriot expects that the realization of
efficiencies related to the integration of the businesses will
offset incremental transaction, integration and restructuring
costs over time, Patriot cannot give any assurance that this net
benefit will be achieved in the near term, if at all.
The
transaction will result in increased borrowing costs under
Patriot’s credit facility.
As a result of the amendments to the Patriot Credit Agreement
entered into in connection with the merger agreement and the
offering of Patriot convertible notes, if the merger is
completed, Patriot will be subject to higher costs of borrowing
and other restrictive terms under the Patriot Credit Agreement.
In addition, the first amendment to the Patriot Credit Agreement
will become void and of no further force or effect if certain
conditions are not satisfied. See “TheMerger — Financing Arrangements — Patriot
Credit Agreement Amendment.”
Obtaining
required approvals and satisfying closing conditions may delay
or prevent completion of the merger.
Completion of the merger is conditioned upon the expiration or
termination of the waiting period required under the HSR Act.
The Federal Trade Commission or others (including states and
private parties) could take action under the antitrust laws,
including seeking to prevent the merger, to rescind the merger
or to conditionally approve the merger upon the divestiture of
assets of Patriot or Magnum. There can be no
assurance that a challenge to the merger on antitrust grounds
will not be made or, if such a challenge is made, that it will
not be successful. Conditions imposed or divestitures required
by governmental authorities may jeopardize or delay completion
of the merger or may reduce the anticipated benefits of the
merger.
Patriot’s obligation to complete the merger is also
conditioned upon the receipt of consents from certain
non-governmental third parties. No assurance can be given that
the required consents will be obtained and even if all such
consents are obtained, no assurance can be given as to the
terms, conditions and timing of the consents or that they will
satisfy the terms of the merger agreement. See “The
Merger Agreement — Conditions to the Completion of the
Merger”for a discussion of the conditions to the
completion of the merger and “The Merger —
Regulatory Matters”for a description of the regulatory
approvals necessary in connection with the merger.
The
ownership and voting interest of Patriot stockholders will be
diluted as a result of the issuance of shares of Patriot common
stock to the holders of Magnum common stock in the merger and to
the holders of Patriot convertible notes upon
conversion.
After the effective time of the merger, stockholders of Magnum
who receive Patriot common stock in the merger will represent
approximately 31% of Patriot’s outstanding common stock as
of the date of the merger agreement on a pro forma basis for the
issuance in the merger. The ArcLight Funds will hold
approximately 16.9% of Patriot common stock outstanding as of
the date of the merger agreement on a pro forma basis for the
issuance in the merger and will be Patriot’s largest
stockholder. In addition, pursuant to the voting agreement,
certain stockholders of Magnum who receive Patriot common stock
in the merger will have the right to appoint up to two directors
to Patriot’s board of directors. Furthermore, the issuance
of Patriot shares upon conversion of the Patriot convertible
notes will dilute the interests of Patriot’s existing
stockholders, and could substantially decrease the trading price
of Patriot’s common stock. The Patriot convertible notes
are convertible at the option of the holders (subject to certain
conditions to conversion during the period from May 28,2008 to February 15, 2013) into a combination of cash
and shares of Patriot’s common stock, unless Patriot elects
to deliver cash in lieu of the common stock portion. The number
of shares of Patriot’s common stock that it may deliver on
conversion will depend upon the price of its common stock during
a 20-day
observation period related to the convertible notes, but will
increase as the common stock price increases above the
conversion price of $135.34 per share of common stock for each
day during the observation period. For example, if the stock
price is $200.00 for each day during the observation period, the
number of shares deliverable would be 477,782 shares.
However, the maximum number of shares that Patriot may deliver
is 1,477,780 shares, which represents approximately 3.8% of
the sum of (x) the number of outstanding shares of Patriot
common stock as of May 19, 2008, being
26,755,877 shares and (y) the number of shares of
Patriot common stock to be issued in the merger. The number of
shares of Patriot’s common stock deliverable on conversion,
however, is subject to adjustments for events having a dilutive
effect on the value of Patriot common stock, which may increase
the number of shares issuable upon conversion, including such
maximum amount. In addition, if certain fundamental changes
occur in respect of Patriot, the number of shares of Patriot
common stock deliverable on conversion will increase up to a
maximum amount of 2,068,894 shares (also subject to
adjustment for certain dilutive events). See
“Management’s Discussion and Analysis of Financial
Condition and Results of Operations of Patriot —
Liquidity and Capital Resources — Private Convertible
Debt Offering” for a description of the terms of the
Patriot convertible notes.
The
net share settlement feature of the Patriot convertible notes
may have adverse consequences on Patriot’s
liquidity.
Patriot will pay an amount in cash equal to the aggregate
principal portion of the Patriot convertible notes converted,
calculated as described under the indenture for the Patriot
convertible notes. Because Patriot must settle at least a
portion of its conversion obligation with regard to the Patriot
convertible notes in cash, the conversion of the Patriot
convertible notes may significantly reduce Patriot’s
liquidity. See “Management’s Discussion and
Analysis of Financial Condition and Results of Operations of
Patriot — Liquidity and Capital Resources —
Private Convertible Debt Offering” for a description of
the terms of the Patriot convertible notes.
Directors
appointed pursuant to the voting agreement may not satisfy the
criteria to be “independent directors” under the New
York Stock Exchange’s listing standards.
Patriot’s board of directors currently consists of seven
members, five of whom are “independent directors”
under the New York Stock Exchange’s listing standards.
Pursuant to the voting agreement, which will become effective as
of the effective time of the merger, Patriot’s board of
directors will be expanded from seven to nine members and the
board of directors will appoint two nominees designated by
Magnum stockholders party to the voting agreement, acting
through the ArcLight Funds as their stockholder representative.
One such nominee will serve as a Class I director on
Patriot’s board of directors and the other nominee will
serve as a Class II director on Patriot’s board of
directors. The nominees initially designated for appointment are
Robb E. Turner and John F. Erhard, each of whom is
affiliated with the ArcLight Funds. Messrs. Turner and
Erhard may not satisfy the criteria to be “independent
directors” under the New York Stock Exchange’s listing
standards as a result of certain relationships between the
ArcLight Funds and Magnum. If Messrs. Turner and Erhard do
not satisfy the criteria to be “independent
directors”, Patriot’s board of directors will consist
of nine directors, five of whom are “independent
directors” under the New York Stock Exchange’s listing
standards.
Whether
or not the merger is completed, the fact that the transaction is
pending could cause disruptions in the businesses of Patriot and
Magnum, which could have an adverse effect on their businesses
and financial results.
These disruptions could include the following:
•
current and prospective employees may experience uncertainty
about their future roles with the combined company, which might
adversely affect Patriot’s and Magnum’s ability to
retain or attract key managers and other employees;
•
subject to the terms of their contracts, current and prospective
customers of Patriot or Magnum may choose to discontinue
purchasing from either company or choose another
supplier; and
•
the attention of management of each of Patriot and Magnum may be
diverted from the operation of the businesses toward the
completion of the merger.
Patriot’s
historical and pro forma financial information may not be
indicative of its future results as an independent
company.
Patriot became an independent company on October 31, 2007.
The historical and pro forma financial information Patriot has
included in this proxy/statement prospectus may not reflect what
its results of operations, financial position and cash flows
would have been had Patriot been an independent company during
the periods presented or be indicative of what Patriot’s
results of operations, financial position and cash flows may be
in the future. Patriot has made adjustments based upon available
information and assumptions that it believes are reasonable to
reflect these factors, among others, in its pro forma financial
information included in this proxy/statement prospectus.
Patriot’s assumptions may not prove to be accurate and,
accordingly, Patriot’s pro forma information may not be
indicative of what its results of operations, cash flows or
financial condition actually would have been as a stand-alone
public company nor be a reliable indicator of what its results
of operations, cash flows and financial condition actually may
be in the future.
For additional information about the past financial performance
of Patriot’s business and the basis of the presentation of
the historical consolidated financial statements, see
“Selected Consolidated Financial Information of
Patriot”and “Management’s Discussion and
Analysis of Financial Condition and Results of Operations of
Patriot”and the historical financial statements and
the accompanying notes included elsewhere in this proxy
statement/prospectus.
Patriot
could be liable to Peabody for adverse tax consequences
resulting from certain change in control transactions and
therefore could be prevented from engaging in strategic or
capital raising transactions.
Peabody could recognize taxable gain if the Patriot spin-off
from Peabody is determined to be part of a plan or series of
related transactions pursuant to which one or more persons
acquire, directly or indirectly, stock representing a 50% or
greater interest in either Peabody or Patriot. Under the
Internal Revenue Code of 1986, as amended, which we refer to as
the Code, any acquisitions of Peabody or Patriot within the
four-year period beginning two years before the date of the
spin-off are presumed to be part of such a plan unless they are
covered by at least one of several mitigating rules established
by IRS regulations. Nonetheless, a merger, recapitalization or
acquisition, or issuance or redemption of Patriot common stock
after the spin-off could, in some circumstances, be counted
toward the 50% change of ownership threshold. The tax separation
agreement entered into by Peabody and Patriot in connection with
the spin-off precludes Patriot from engaging in some of these
transactions unless Patriot first obtains a tax opinion
acceptable to Peabody or an IRS ruling to the effect that such
transactions will not result in additional taxes. The tax
separation agreement further requires Patriot to indemnify
Peabody for any resulting taxes regardless of whether Patriot
first obtains such opinion or ruling. As a result, Patriot may
be unable to engage in strategic or capital raising transactions
that stockholders might consider favorable, or to structure
potential transactions in the manner most favorable to Patriot.
Although not required pursuant to the terms of the tax
separation agreement, in connection with the execution of the
merger agreement, Patriot obtained an opinion dated
April 2, 2008 from Ernst & Young LLP to the
effect that the issuance of the Patriot common stock pursuant to
the merger agreement should not result in an acquisition of a
fifty percent or greater interest in Patriot within the meaning
of Sections 355(d)(4) and (e)(4)(A) of the Code.
The
agreements that Patriot has entered into with Peabody involve
conflicts of interest.
Because the spin-off involved the separation of certain of
Peabody’s existing businesses into two independent
companies, Patriot entered into certain agreements with Peabody
to provide a framework for its relationship with Peabody
following the spin-off. The terms of the spin-off, including the
financial terms of the arrangements between Peabody and Patriot
that continue after the spin-off, were determined by persons who
were at the time employees, officers or directors of Peabody or
its subsidiaries and, accordingly, had a conflict of interest.
Patriot
did not operate as an independent company prior to the spin-off,
and it may experience increased costs which could decrease its
overall profitability.
Patriot’s business was operated as a part of Peabody’s
eastern business segment, and Peabody performed a number of
corporate functions for Patriot’s operations. Patriot has
and will continue to incur capital and other costs associated
with developing and implementing its own support functions in
these areas. Patriot is operating independently in most
functions, however, Peabody continues to provide certain support
services to Patriot, including services related to information
technology. Patriot needs to replicate such services as soon as
practical, but in no event later than October 31, 2008. In
addition, there may be an operational impact on Patriot’s
business as a result of the time of Patriot’s management
and other employees and internal resources that will need to be
dedicated to building these capabilities that otherwise would be
available for other business initiatives and opportunities.
Additionally, if Patriot has not developed adequate systems and
business functions of its own, or has not obtained them from
other providers, it may not be able to operate the company
effectively and Patriot’s profitability may decline.
A
decline in coal prices could reduce Patriot’s revenues and
the value of Patriot’s coal reserves.
Patriot’s results of operations are dependent upon the
prices Patriot charges for its coal as well as its ability to
maximize productivity and control costs. Declines in the prices
Patriot receives for its coal could adversely affect its
operating results and its ability to generate the cash flows it
requires to fund its existing operations and obligations,
improve its productivity and reinvest in its business. The
prices Patriot receives for coal depend upon numerous factors
beyond its control, including coal and power market conditions,
weather
patterns affecting energy demand, competition in its industry,
availability and costs of competing energy resources, including
the effects of technological developments, worldwide economic
and political conditions, economic strength and political
stability in the U.S. and countries in which Patriot serves
customers, the outcome of commercial negotiations involving
sales contracts or other transactions, customer performance and
credit risk, availability and costs of transportation, its
ability to respond to changing customer preferences and
reductions of purchases by major customers, domestic and foreign
legislative and regulatory developments, including new
environmental regulations affecting the use of coal, including
limitations on mercury and carbon dioxide-related emissions, the
supply of and demand for metallurgical coal, and the effect of
worldwide energy conservation measures. Any material decrease in
demand would cause coal prices to decline and require Patriot to
decrease costs in order to maintain its margins.
As
Patriot’s coal supply agreements expire, Patriot’s
revenues and operating profits could suffer if it is unable to
renew its agreements or find alternate buyers willing to
purchase its coal on comparable terms to those in its
contracts.
Following the spin-off, Patriot continues to supply coal to
Peabody subsidiaries on a contract basis, so they can meet their
commitments under pre-existing customer agreements sourced from
Patriot’s operations. As these coal supply agreements
expire, Patriot may compete with Peabody and other coal
suppliers to obtain the business of the customers who were
previously obtaining their coal from Peabody affiliates. If
Patriot cannot renew these coal supply agreements directly with
customers or find alternate customers willing to purchase its
coal on comparable terms to those in the expired contracts,
Patriot’s revenues and operating profits could suffer.
In a limited number of contracts, failure of the parties to
agree on price adjustments may allow either party to terminate
the contract. Coal supply agreements typically contain force
majeure provisions allowing temporary suspension of performance
by Patriot or the customer during the duration of specified
events beyond the control of the affected party. Most coal
supply agreements contain provisions requiring Patriot to
deliver coal meeting quality thresholds for certain
characteristics such as Btu, sulfur content, ash content,
grindability and ash fusion temperature in the case of steam
coal. Failure to meet these specifications could result in
economic penalties, including price adjustments, the rejection
of deliveries or termination of the contracts. In addition, some
of these contracts allow Patriot’s customers to terminate
their contracts in the event of changes in regulations affecting
its industry that increase the price of coal beyond specified
limits.
Patriot
derives a substantial portion of its revenues from Peabody
subsidiaries, and any material failure by these subsidiaries to
make payments for coal sales or receive payments from their
ultimate customers for coal supplied by Patriot would adversely
affect Patriot’s revenues.
Currently, Patriot derives most of its revenues from the sale of
coal to certain Peabody subsidiaries, who then sell the coal to
the ultimate customers. Furthermore, sales to Peabody are
expected to constitute the majority of Patriot’s revenues
through 2008, before a majority of Patriot’s current coal
supply agreements expire. Any material failure or significant
delay by Peabody subsidiaries to make payments for coal sales,
or certain material defaults under the respective coal supply
agreements such ultimate customers have with Peabody’s
subsidiaries, or certain repudiations or terminations thereof in
a material respect, would adversely affect Patriot’s
revenues and cash flows. See “Management’s
Discussion and Analysis of Financial Condition and Results of
Operations of Patriot — Quantitative and Qualitative
Disclosures about Market Risk — Credit Risk.”
The
loss of, or significant reduction in, purchases by parties to
existing coal supply agreements sourced from Patriot’s
operations could adversely affect its revenues.
For the year ended December 31, 2007, Patriot derived 46%
of its total coal revenues from sales through Peabody to
Patriot’s five largest ultimate customers pursuant to coal
supply agreements expiring at various times through 2012.
Although these customers currently have contracts with Peabody
to purchase coal sourced from Patriot’s operations, Patriot
will attempt to renew these agreements directly with the end
customers when they expire. Patriot’s negotiations may not
be successful and those customers may not continue to purchase
coal from it. If a number of these customers significantly
reduce their purchases of coal from Patriot, or if Patriot is
unable to sell coal to them on terms as favorable to it as the
terms under its current agreements, Patriot’s results of
operations, cash flows and financial condition could suffer
materially.
Any
change in coal consumption patterns by steel producers or North
American electric power generators resulting in a decrease in
the use of coal by those consumers could result in lower prices
for Patriot’s coal, which would reduce Patriot’s
revenues and adversely impact its earnings and the value of its
coal reserves.
Steam coal accounted for approximately 77%, 77% and 78% of
Patriot’s coal sales volume during 2007, 2006 and 2005,
respectively. Substantially all of Patriot’s sales of steam
coal were to U.S. electric power generators. The amount of
coal consumed for U.S. electric power generation is
affected primarily by the overall demand for electricity; the
location, availability, quality and price of competing fuels for
power such as natural gas, nuclear, fuel oil and alternative
energy sources such as wind and hydroelectric power;
technological developments including those related to
alternative energy sources; and the costs to comply with
environmental and other governmental regulations. For example,
the increasingly stringent requirements of the Clean Air Act and
other existing or potential laws regulating air emissions may
result in more electric power generators shifting from
coal-fueled generation and building more non-coal power
electrical generating sources in the future. In addition,
weather patterns can affect energy demand and consequently
greatly affect electricity generation. Overall economic activity
and the associated demands for power by industrial users also
can have significant effects on overall electricity demand. In
the past, economic slowdowns have significantly reduced the
growth of electrical demand and, in some locations, resulted in
contraction of demand. Any downward pressure on coal prices,
whether due to increased use of alternative energy sources,
changes in weather patterns, decreases in overall demand or
otherwise, would likely cause Patriot’s profitability to
decline.
Metallurgical coal accounted for approximately 23%, 23% and 22%
of Patriot’s coal sales volume during 2007, 2006 and 2005,
respectively. Any deterioration in global steel demand or in the
steel industry would reduce the demand for Patriot’s
metallurgical coal and could impact the collectability of its
accounts receivable from steel industry customers. In addition,
the steel industry increasingly relies on electric arc furnaces
or pulverized coal processes to make steel. These processes do
not use furnace coke, an intermediate product produced from
metallurgical coal. Therefore, all growth in future steel
production may not represent increased demand for metallurgical
coal. If the demand or pricing for metallurgical coal decreases
in the future, the amount of metallurgical coal Patriot sells
and prices that Patriot receives for it could decrease, thereby
reducing its revenues and adversely impacting its earnings and
the value of its coal reserves.
A
decrease in the price of metallurgical coal or Patriot’s
production of metallurgical coal could decrease Patriot’s
anticipated profitability.
Patriot has annual capacity to produce approximately six to
eight million tons of metallurgical coal. Patriot’s margins
from these sales have increased significantly since 2004 and
represent a large percentage of its overall revenues and
profits. To the extent Patriot experiences either production or
transportation difficulties that impair its ability to ship
metallurgical coal at anticipated levels, its profitability will
be reduced.
The majority of Patriot’s metallurgical coal production is
priced annually. As a result, a decrease in near term
metallurgical coal prices could decrease its profitability.
Failures
of contractor-operated sources to fulfill the delivery terms of
their contracts with Patriot could reduce its
profitability.
Within its normal mining operations, Patriot utilizes third
party sources for some coal production, including contract
miners, to fulfill deliveries under Patriot’s coal supply
agreements. Approximately 25% of Patriot’s total sales
volume for 2007 was attributable to contractor-operated mines.
Certain of Patriot’s contractor-operated mines have
experienced adverse geologic conditions, escalated operating
costs and/or
financial difficulties that have made their delivery of coal to
Patriot at the contracted price difficult or uncertain.
Patriot’s profitability or exposure to loss on transactions
or relationships such as these is dependent
upon a variety of factors, including the availability and
reliability of the third-party supply; the price and financial
viability of the third-party supply; Patriot’s obligation
to supply coal to customers in the event that adverse geologic
conditions restrict deliveries from its suppliers;
Patriot’s willingness to participate in temporary cost
increases experienced by third-party coal suppliers;
Patriot’s ability to pass on temporary cost increases to
customers; and Patriot’s ability to substitute, when
economical, third-party coal sources with internal production or
coal purchased in the market, and other factors.
Inaccuracies
in Patriot’s estimates of economically recoverable coal
reserves could result in lower than expected revenues, higher
than expected costs or decreased profitability.
Patriot bases its proven and probable coal reserve information
on engineering, economic and geologic data previously assembled
and analyzed by Peabody’s staff, which includes various
engineers and geologists, and which is periodically reviewed by
an outside firm. The reserve estimates as to both quantity and
quality are annually updated to reflect production of coal from
the reserves and new drilling or other data received. There are
numerous uncertainties inherent in estimating quantities and
qualities of and costs to mine recoverable reserves, including
many factors beyond Patriot’s control. Estimates of
economically recoverable coal reserves and net cash flows
necessarily depend upon a number of variable factors and
assumptions relating to geologic and mining conditions, relevant
historical production statistics, the assumed effects of
regulation and taxes, adverse changes in the permitting approval
process, future coal prices, operating costs, mining technology
improvements, severance and excise taxes, development costs and
reclamation costs.
For these reasons, estimates of the economically recoverable
quantities and qualities attributable to any particular group of
properties, classifications of coal reserves based on risk of
recovery and estimates of net cash flows expected from
particular reserves prepared by different engineers or by the
same engineers at different times may vary substantially. Actual
coal tonnage recovered from identified reserve areas or
properties and revenues and expenditures with respect to
Patriot’s proven and probable coal reserves may vary
materially from estimates. These estimates, thus, may not
accurately reflect Patriot’s actual coal reserves. Any
inaccuracy in Patriot’s estimates related to its proven and
probable coal reserves could result in lower than expected
revenues, higher than expected costs or decreased profitability.
If the
coal industry experiences overcapacity in the future,
Patriot’s profitability could be impaired.
During the mid-1970s and early 1980s, a growing coal market and
increased demand for coal attracted new investors to the coal
industry, spurred the development of new mines and resulted in
production capacity in excess of market demand throughout the
industry. Similarly, increases in future coal prices could
encourage the development of expanded capacity by new or
existing coal producers. Coal with lower delivered production
costs shipped east from western coal mines and from offshore
sources can result in increased competition for coal sales in
regions historically sourced from Appalachian producers. Patriot
could experience decreased profitability if future coal
production is consistently greater than coal demand. Discussion
of additional factors that could affect coal industry dynamics
can be found under “— Risk Factors Relating to
Magnum — Increased competition within the coal
industry, including competition from alternative fuel providers,
may adversely affect Magnum’s ability to sell coal, and any
excess production capacity in the industry could put downward
pressure on coal prices.”
Patriot
could be negatively affected if it fails to maintain
satisfactory labor relations.
As of December 31, 2007, Patriot had approximately
2,300 employees. Approximately 61% of Patriot’s
employees as of December 31, 2007 at company operations
were represented by the UMWA, and these operations generated
approximately 49% of Patriot’s 2007 sales volume. Relations
with its employees and, where applicable, organized labor are
important to Patriot’s success. The current labor contract
for most of Patriot’s represented employees became
effective January 1, 2007 and will expire on
December 31, 2011. Patriot operates a mine in western
Kentucky with a separate UMWA contract covering approximately
350 employees. A labor contract covering these employees
will expire on December 31, 2011.
Due to the higher labor costs and the increased risk of strikes
and other work-related stoppages that may be associated with
union operations in the coal industry, Patriot’s
competitors who operate without union labor may have a
competitive advantage in areas where they compete with
Patriot’s unionized operations. If some or all of
Patriot’s current non-union operations or those of third
party contract miners were to become organized, Patriot could
incur an increased risk of work stoppages, reduced productivity
and higher labor costs.
A
shortage of skilled labor and qualified managers in
Patriot’s operating regions could pose a risk to achieving
improved labor productivity and competitive costs and could
adversely affect its profitability.
Efficient coal mining using modern techniques and equipment
requires skilled laborers with mining experience and proficiency
as well as qualified managers and supervisors. In recent years,
a shortage of experienced coal miners and managers in Appalachia
and the Illinois Basin has at times negatively impacted
Patriot’s production levels and increased its costs. If the
shortage of experienced labor continues or worsens, it could
have an adverse impact on Patriot’s productivity and costs
and Patriot’s ability to expand production in the event
there is an increase in the demand for its coal, which could
adversely affect its profitability.
A
decrease in the availability or increase in costs of key
supplies, capital equipment or commodities could decrease
Patriot’s anticipated profitability.
Patriot’s purchases of some items of underground mining
equipment are concentrated with one principal supplier. Further,
its mining operations require a reliable supply of steel-related
products (including roof control), replacement parts, belting
products, and lubricants. If the cost of any of these inputs
increased significantly, or if a source for such mining
equipment or supplies were unavailable to meet Patriot’s
replacement demands, Patriot’s profitability could be
reduced from its current expectations. Industry-wide demand
growth has exceeded supply growth for certain underground mining
equipment, surface and other capital equipment. As a result,
lead times for some items have increased significantly.
Additional discussion relating to increases in the prices of raw
materials can be found under “— Risk Factors
Relating to Magnum — Increases in the price of steel,
petroleum products, tires and other materials used in Magnum
mining operations could impair Magnum’s operating
profitability.”
Patriot’s
coal mining production and delivery are subject to conditions
and events beyond its control, which could result in higher
operating expenses and/or decreased production and sales and
adversely affect its operating results.
Patriot’s coal mining operations are conducted, in large
part, in underground mines and, to a lesser extent, at surface
mines. The level of Patriot’s production at these mines is
subject to operating conditions and events beyond its control
that could disrupt operations, affect production and the cost of
mining at particular mines for varying lengths of time and have
a significant impact on its operating results. Adverse operating
conditions and events that coal producers have experienced in
the past include changes or variations in geologic conditions,
such as the thickness of the coal deposits and the amount of
rock embedded in or overlying the coal deposit, mining and
processing equipment failures and unexpected maintenance
problems, adverse weather and natural disasters, such as
snowstorms, heavy rains and flooding, accidental mine water
discharges and mine safety accidents, including fires and
explosions from methane and other sources, surface subsidence
from underground mining, which could result in collapsed roofs,
among other difficulties, interruptions due to transportation
delays, restriction of mining activities due to the
implementation of final National Pollutant Discharge Elimination
System (which we refer to as NPDES) effluent limits, unexpected
delays and difficulties in acquiring, maintaining or renewing
necessary permits or mining or surface rights, unavailability of
mining equipment and supplies and increases in the price of
mining equipment and supplies and increased or unexpected
reclamation costs.
If any of these or similar conditions or events occur in the
future at any of Patriot’s mines or affect deliveries of
Patriot’s coal to customers, they may increase its cost of
mining and delay or halt production at particular mines or sales
to its customers either permanently or for varying lengths of
time, which could adversely affect Patriot’s results of
operations, cash flows and financial condition. Patriot cannot
assure you that these risks would be fully covered by
Patriot’s insurance policies.
In addition, the geologic characteristics of underground coal
reserves in Appalachia and the Illinois Basin, such as rock
intrusions, overmining, undermining and coal seam thickness,
make them complex and costly to mine. As mines become depleted,
replacement reserves may not be mineable at costs comparable to
those characteristic of the depleting mines. In addition, coal
companies with larger mines that utilize the longwall mining
method typically have lower mine operating costs than certain of
Patriot’s mines that do not use the longwall mining method.
These factors could materially adversely affect the mining
operations and the cost structures of, and customers’
willingness to purchase coal produced by, Patriot’s mines
in Appalachia and the Illinois Basin.
Defects
in title of any leasehold interests in Patriot’s properties
could limit its ability to mine these properties or result in
significant unanticipated costs.
Patriot conducts a significant part of its mining operations on
properties that it leases. Title to most of its leased
properties and mineral rights is not thoroughly verified until a
permit to mine the property is obtained. Patriot’s right to
mine some of its proven and probable coal reserves may be
materially adversely affected by defects in title or boundaries.
In order to obtain leases or mining contracts to conduct its
mining operations on property where these defects exist, Patriot
may in the future have to incur unanticipated costs, which could
adversely affect its profitability.
Patriot’s
future success depends upon its ability to develop its existing
coal reserves and to acquire additional reserves that are
economically recoverable.
Patriot’s recoverable reserves decline as it produces coal.
Patriot has not yet applied for the permits required or
developed the mines necessary to use all of its proven and
probable coal reserves that are economically recoverable.
Furthermore, Patriot may not be able to mine all of its proven
and probable coal reserves as profitably as it does at its
current operations. Patriot’s future success depends upon
its conducting successful exploration and development activities
and acquiring properties containing economically recoverable
proven and probable coal reserves. Patriot’s current
strategy includes increasing its proven and probable coal
reserves through acquisitions of leases and producing properties
and continuing to use its existing properties.
Patriot’s planned mine development projects and acquisition
activities may not result in significant additional proven and
probable coal reserves and it may not have continuing success
developing additional mines. A substantial portion of
Patriot’s proven and probable coal reserves is not located
adjacent to current operations and will require significant
capital expenditures to develop. In order to develop its proven
and probable coal reserves, Patriot must receive various
governmental permits. Some of the required permits are becoming
increasingly difficult and expensive to obtain and the
application review processes are taking longer to complete and
becoming increasingly subject to challenge and public
opposition. Patriot cannot assure you that it will be able to
receive the governmental permits that it would need to continue
developing its proven and probable coal reserves.
Most of Patriot’s mining operations are conducted on
properties owned or leased by it. Patriot may not be able to
negotiate new leases from private parties or obtain mining
contracts for properties containing additional proven and
probable coal reserves or maintain its leasehold interest in
properties on which mining operations are not commenced during
the term of the lease.
If
transportation for Patriot’s coal becomes unavailable or
uneconomic for its customers, Patriot’s ability to sell
coal could suffer.
Coal producers depend upon rail, barge, trucking, overland
conveyor, ocean-going vessels and port facilities to deliver
coal to markets. While Patriot’s coal customers typically
arrange and pay for transportation of coal from the mine or port
to the point of use, disruption of these transportation services
because of weather-related problems, infrastructure damage,
strikes, lock-outs, lack of fuel or maintenance items,
transportation delays, lack of port capacity or other events
could temporarily impair Patriot’s ability to supply coal
to customers and thus could adversely affect its results of
operations, cash flows and financial condition.
Transportation costs represent a significant portion of the
total cost of coal for Patriot’s customers and the cost of
transportation is an important factor in a customer’s
purchasing decision. Increases in transportation costs,
including demurrage, could adversely impact Patriot’s
sales. One of Patriot’s coal supply agreements, covering
approximately 3.5 million tons per year, permits the
customer to terminate such agreement if the barge transportation
rates applicable to Patriot’s shipments increase by more
than a specified amount and Patriot does not agree to reduce its
selling price by the excess over such amount.
Patriot’s
operations are subject to geologic, equipment and operational
risks associated with mining.
Patriot’s coal mining operations are conducted, in large
part, in underground mines. The level of Patriot’s
production at these mines is subject to operating conditions and
events beyond its control that could disrupt operations, affect
production and the cost of mining at particular mines for
varying lengths of time and have a significant impact on its
operating results.
If these conditions or events occur in the future, reduced
production could adversely affect Patriot’s results of
operations, cash flows and financial condition. For example,
Patriot’s Federal mine experienced two roof falls during
the first quarter of 2008. As a result of the roof falls,
Federal’s longwall production was curtailed for
approximately one month, contributing to a decrease of 415,000
tons in the volume of coal sales from Appalachia in the first
quarter of 2008, compared to the 2007 first quarter and leading
to a decrease in EBITDA for the first quarter of 2008 of an
estimated $17.0 million. Patriot’s fourth quarter 2007
results were also negatively impacted by a delayed longwall move
at Federal. The decrease in production caused Patriot to invoke
the force majeure provisions of several of its coal sales
contracts, requiring Patriot to make up lost tonnages in certain
instances during the rest of 2008 and possibly into 2009.
There is no assurance that the adverse geologic conditions at
the Federal mine may not re-occur, with the same or more adverse
impact on Patriot’s financial condition and results of
operations or that similar adverse geologic conditions may not
occur at one or more of Patriot’s other mines.
Patriot’s
operations may depend on the availability of additional
financing and access to funds under its credit
facility.
Patriot expects to have sufficient liquidity to support the
development of its business. In the future, however, Patriot may
require additional financing for liquidity, capital requirements
and growth initiatives. Patriot is dependent on its ability to
generate cash flows from operations and to borrow funds and
issue securities in the capital markets to maintain and expand
its business. Patriot may need to incur debt on terms and at
interest rates that may not be as favorable as those
historically enjoyed by Peabody. In addition, future events may
prevent Patriot from borrowing funds under the Credit Agreement,
dated as of October 31, 2007, as amended, among Patriot, as
borrower, each lender from time to time party thereto, and Bank
of America, N.A., as Administrative Agent, Swing Line Lender and
L/C Issuer, which we refer to as the Patriot credit facility.
Any inability by Patriot to obtain financing in the future on
favorable terms could have a negative effect on its results of
operations, cash flows and financial condition.
Failure
to obtain or renew surety bonds in a timely manner and on
acceptable terms could affect Patriot’s ability to secure
reclamation and employee-related obligations, which could
adversely affect its ability to mine coal.
U.S. federal and state laws require Patriot to secure
certain of its obligations to reclaim lands used for mining, to
pay federal and state workers’ compensation, and to satisfy
other miscellaneous obligations. The primary method for Patriot
to meet those obligations is to provide a third-party surety
bond or letters of credit. As of December 31, 2007, Patriot
had outstanding surety bonds and letters of credit aggregating
$362.6 million, of which $146.0 million was for
post-mining reclamation, $183.8 million related to
workers’ compensation obligations, $16.9 million was
for coal lease obligations and $15.9 million was for other
obligations (including collateral for surety companies and bank
guarantees, road maintenance and performance guarantees). These
bonds are typically renewable on a yearly basis. Surety bond
issuers and holders may not continue to renew the bonds or may
demand additional collateral upon those renewals.
Additionally, as of December 31, 2007, Peabody continued to
guarantee certain bonds (self bonding) related to Patriot
liabilities that have not yet been replaced by Patriot’s
surety bonds. As of December 31, 2007, Peabody self bonding
related to Patriot liabilities aggregated $22.8 million, of
which $19.9 million was for post-mining reclamation and
$2.9 million was for other obligations. Patriot expects to
replace these Peabody self bonds in 2008.
Patriot’s failure to maintain, or inability to acquire,
surety bonds or to provide a suitable alternative would have a
material adverse effect on it. That failure could result from a
variety of factors including lack of availability, higher
expense or unfavorable market terms of new surety bonds,
restrictions on the availability of collateral for current and
future third-party surety bond issuers under the terms of
Patriot’s credit facility and the exercise by third-party
surety bond issuers of their right to refuse to renew the surety.
If
Patriot’s business does not generate sufficient cash for
operations, it may not be able to repay borrowings under its
credit facility or fund other liquidity needs.
Patriot’s ability to pay principal and interest on and to
refinance its debt will depend upon the operating performance of
its subsidiaries. Patriot’s business may not generate
sufficient cash flows from operations and future borrowings may
not be available to Patriot under its credit facility or
otherwise in an amount sufficient to enable it to repay any
borrowings under its credit facility or to fund its other
liquidity needs. Patriot may not be able to refinance the
revolver under its credit facility on commercially reasonable
terms, on terms acceptable to Patriot or at all.
The
covenants in Patriot’s credit facility and under the
Patriot convertible notes impose restrictions that could limit
its operational and financial flexibility.
The credit facility contains certain customary covenants,
including financial covenants limiting Patriot’s total
indebtedness (maximum leverage ratio of 2.75) and requiring
minimum EBITDA coverage of interest expense (minimum interest
coverage ratio of 4.0), as well as certain limitations on, among
other things, additional debt, liens, investments, acquisitions,
capital expenditures, future dividends and asset sales.
Compliance with debt covenants may limit Patriot’s ability
to draw on its credit facility.
In addition, the indenture for the Patriot convertible notes
prohibits Patriot from engaging in certain mergers or
acquisitions unless, among other things, the surviving entity
assumes Patriot’s obligations under the notes. These and
other provisions could prevent or deter a third party from
acquiring Patriot even where the acquisition could be beneficial
to Patriot stockholders.
Patriot’s
mining operations are extensively regulated, which imposes
significant costs on it, and future regulations and developments
could increase those costs or limit Patriot’s ability to
produce and sell coal.
The coal mining industry is subject to increasingly strict
regulation by federal, state and local authorities, with respect
to matters such as employee health and safety, permitting and
licensing requirements, the protection of the environment,
plants and wildlife, reclamation and restoration of mining
properties after mining is completed, surface subsidence from
underground mining and the effects that mining has on
groundwater quality and availability. Numerous governmental
permits and approvals are required for mining operations.
Patriot is required to prepare and present to federal, state or
local authorities data pertaining to the effect or impact that
any proposed exploration for or production of coal may have upon
the environment. In addition, significant legislation mandating
specified benefits for retired coal miners affects
Patriot’s industry. The costs, liabilities and requirements
associated with these regulations may be costly and
time-consuming and may delay commencement or continuation of
exploration or production. New or revised legislation or
administrative regulations (or judicial or administrative
interpretations of existing laws and regulations), including
proposals related to the protection of the environment or
employee health and safety that would further regulate and tax
the coal industry, may also require Patriot or its customers to
change operations significantly or incur increased costs, which
may materially adversely affect its mining operations and its
cost structure. The majority of Patriot’s coal supply
agreements contain provisions that allow a purchaser to
terminate its contract if legislation is passed that either
restricts the use or type of coal permissible at the
purchaser’s plant or results in specified increases in the
cost of coal or its use. These factors could have a material
adverse effect on Patriot’s results of operations, cash
flows and financial condition.
Both the federal and state governments impose stringent health
and safety standards on the mining industry. The Mining Safety
and Health Administration, or MSHA, monitors compliance with
these federal laws and regulations and can impose penalties as
well as closure of the mine. Recent fatal mining accidents have
resulted in state and federal legislative and regulatory
initiatives that seek to enhance miner safety through more
stringent enforcement of existing safety requirements, including
the imposition of higher penalties, as well as new requirements
regarding safety equipment, training and emergency response.
Furthermore, in the event of certain violations of safety rules,
the Mine Safety and Health Administration may order the
temporary closure of mines. In addition, Patriot’s
customers may challenge Patriot’s issuance of force majeure
notices in connection with such closures. If these challenges
are successful, Patriot could be obligated to make up lost
shipments, to reimburse customers for the additional costs to
purchase replacement coal, or, in some cases, to terminate
certain sales contracts. Discussion of regulation under the
Surface Mining Control and Reclamation Act of 1977, or SMCRA,
can be found under the heading “Business of
Patriot — Certain Liabilities — Asset
Retirement Obligations.”
Patriot’s
expenditures for postretirement benefit obligations could be
materially higher than Patriot has predicted if its actual
experience differs from the underlying
assumptions.
Patriot provides postretirement health and life insurance
benefits to eligible union and non-union employees. Patriot
calculated the total accumulated postretirement benefit
obligation according to the guidance provided by
SFAS No. 106. Patriot estimated the present value of
the obligation to be $554.7 million as of December 31,2007. Patriot has estimated these unfunded obligations based on
assumptions described in the notes to its consolidated financial
statements. If Patriot’s assumptions do not materialize as
expected, cash expenditures and costs that it incurs could be
materially higher. For a discussion of postretirement benefit
costs and obligations, including related sensitivity analysis,
see “Management’s Discussion & Analysis
of Financial Condition and Results of Operations of
Patriot — Critical Accounting Policies and
Estimates — Employee-Related Liabilities.”
Patriot
could be liable for certain retiree healthcare obligations to be
assumed by Peabody in connection with the
spin-off.
In connection with the spin-off, a Peabody subsidiary assumed
certain retiree healthcare obligations of Patriot and its
subsidiaries having a present value of $603.4 million as of
December 31, 2007. These obligations arise under the Coal
Act, the Natural Bituminous Coal Wage Agreement of 2007, which
we refer to as the 2007 NBCWA, and predecessor agreements and a
subsidiary’s salaried retiree healthcare plan.
Although the Peabody subsidiary will be obligated to pay such
obligations, certain Patriot subsidiaries will also remain
jointly and severally liable for the Coal Act obligations, and
secondarily liable for the assumed 2007 NBCWA obligations and
retiree healthcare obligations for certain participants under a
subsidiary’s retiree healthcare plan. As a consequence,
Patriot’s recorded retiree healthcare obligations and
related cash costs could increase substantially if the Peabody
subsidiary fails to perform its obligations under the liability
assumption agreements. These additional liabilities and costs,
if incurred, could have a material adverse effect on
Patriot’s results of operations, cash flows and financial
condition.
Due to
Patriot’s participation in multi-employer pension plans,
Patriot may have exposure that extends beyond what its
obligations would be with respect to its
employees.
Certain of Patriot’s subsidiaries participate in two
defined benefit multi-employer pension funds that were
established as a result of collective bargaining with the UMWA
pursuant to the 2007 NBCWA as periodically negotiated. These
plans provide pension and disability pension benefits to
qualifying represented employees retiring from a participating
employer where the employee last worked prior to January 1,
1976, in the case of the UMWA 1950 Pension Plan, or after
December 31, 1975, in the case of the UMWA 1974 Pension
Plan. In December 2006, the 2007 NBCWA was signed, which
required funding of the 1974 Pension Plan through
2011 under a phased funding schedule. The funding is based on an
hourly rate for active UMWA workers. Under the labor contract,
the per hour funding rate increased from zero to $2.00 in 2007
and will increase each year thereafter until reaching $5.50 in
2011. Patriot’s subsidiaries with UMWA-represented
employees are required to contribute to the 1974 Pension Plan at
the new hourly rates.
Contributions to these funds could increase as a result of
future collective bargaining with the UMWA, a shrinking
contribution base as a result of the insolvency of other coal
companies who currently contribute to these funds, lower than
expected returns on pension fund assets or other funding
deficiencies.
Patriot’s
exposure to statutory retiree healthcare costs could be
significantly higher than Patriot has estimated.
The 2006 Act authorized $490 million in general fund
revenues to pay for certain benefits, including the healthcare
costs under the Combined Fund, 1992 Benefit Plan and 1993
Benefit Plan (each as described under “Business of
Patriot — Certain Liabilities — Retiree
Healthcare”) for “orphans” who are retirees
and their dependents. Under the 2006 Act, these orphan benefits
will be the responsibility of the federal government on a
phased-in basis through 2012. If Congress were to amend or
repeal the 2006 Act or if the $490 million authorization
were insufficient to pay for these healthcare costs, certain of
Patriot’s subsidiaries, along with other contributing
employers and their affiliates, would be responsible for the
excess costs. Patriot’s aggregate cash payments to the
Combined Fund, 1992 Benefit Plan and 1993 Benefit Plan were
$21.4 million and $15.2 million during 2007 and 2006,
respectively.
Concerns
about the environmental impacts of coal combustion, such as
impacts on global climate change, are resulting in increased
regulation of coal combustion and could significantly affect
demand for Patriot’s products.
Widely publicized scientific reports in 2007, such as the Fourth
Assessment Report of the Intergovernmental Panel on Climate
Change, have engendered widespread concern about the impacts of
human activity, especially fossil fuel combustion, on global
climate change. As a result, considerable and increasing
government attention in the United States is being paid to
reducing greenhouse gas emissions, particularly from coal
combustion by power plants. Further, due to the
U.S. Supreme Court’s recent decision in
Massachusetts v. Environmental Protection Agency,
the Environmental Protection Agency, which we refer to as the
EPA, is considering regulating greenhouse gas emissions.
Legislation is also currently pending in Congress, and a growing
number of states in the United States have taken or are
considering taking steps to reduce greenhouse gas emissions,
including by requiring reductions on carbon dioxide emissions
from coal-fired power plants. These legislative efforts, as well
as similar developments in other countries where Patriot sells
coal, may have an adverse impact on Patriot’s business. For
example, enactment of laws
and/or the
passage of regulations regarding greenhouse gas emissions, or
other actions to limit carbon dioxide emissions, could result in
Patriot having to incur increased costs to operate its business
and could result in electric generators reducing the amounts of
coal they use, changing the types of coal they use or switching
from coal to other fuel sources. The majority of Patriot’s
coal supply agreements contain provisions that allow a purchaser
to terminate its contract if legislation is passed that either
restricts the use or type of coal permissible at the
purchaser’s plant or results in specified increases in the
cost of coal or its use.
The EPA is also considering more stringent regulations to reduce
emissions of sulfur dioxide, nitrogen oxide and mercury. Certain
states have already independently established requirements that
are more stringent than the current EPA proposals. These
existing and likely future regulations could also adversely
affect demand for Patriot’s products. All of the above
existing, proposed and possible future developments in
connection with legislation, regulations or other limits on
greenhouse gas emissions and other environmental impacts from
coal combustion, both in the United States and in other
countries where Patriot sells coal, could have a material
adverse effect on its results of operations, cash flows and
financial condition.
Patriot
may be unable to obtain and renew permits necessary for its
operations, which would reduce its production, cash flows and
profitability.
Mining companies must obtain numerous permits and approvals that
impose strict regulations relating to environmental and safety
matters. These include permits issued by various federal and
state agencies and regulatory bodies. The permitting rules are
complex, change frequently and have tended to become more
stringent over time, making Patriot’s ability to comply
with the applicable requirements more difficult or even
unachievable, thereby precluding continuing or future mining
operations. Private individuals and the public have certain
rights to comment upon, submit objections to, and otherwise
engage in the permitting process, including through court
intervention. Some permit programs, such as the authorizations
issued under Section 404 of the Clean Water Act, or CWA,
have been subject to recent and significant legal challenges.
Section 404 of the CWA requires mining companies to obtain
U.S. Army Corps of Engineers, or ACOE, permits to place
material in streams for the purpose of creating slurry ponds,
water impoundments, refuse areas, valley fills or other mining
activities. The ACOE issues two types of permits pursuant to
Section 404, general (or “nationwide”) and
“individual” permits. Historically, the nationwide
permit program was designed to streamline the permitting process
for specific categories of filling activity. Due to multiple
recent court cases involving CWA permits issued to coal
companies, both nationwide and individual permits have become
more difficult to obtain. Thus, it now takes longer and costs
more to obtain permits necessary for Patriot’s operations.
The permits Patriot needs may not be issued, maintained or
renewed, may be subject to public challenge, may impose
burdensome conditions, and may not be issued or renewed in a
timely fashion. An inability to conduct Patriot’s mining
operations pursuant to applicable permits and approvals could
adversely affect its production, results of operations, cash
flows and financial condition.
Patriot’s
operations may impact the environment or cause exposure to
hazardous substances, and its properties may have environmental
contamination, which could result in material liabilities to
Patriot.
Certain of Patriot’s current and historical coal mining
operations have used hazardous materials and, to the extent that
such materials are not recycled, they could become hazardous
waste. Patriot may be subject to claims under federal and state
statutes
and/or
common law doctrines for toxic torts and other damages, as well
as for natural resource damages and the investigation and clean
up of soil, surface water, groundwater, and other media under
laws such as CERCLA, commonly known as Superfund. Such claims
may arise, for example, out of current or former conditions at
sites that Patriot owns or operates currently, as well as at
sites that it and companies it acquired owned or operated in the
past, and at contaminated sites that have always been owned or
operated by third parties. Liability may be without regard to
fault and may be strict, joint and several, so that Patriot may
be held responsible for more than its share of the contamination
or other damages, or even for the entire share.
Patriot maintains coal slurry impoundments at a number of its
mines. Such impoundments are subject to extensive regulation.
Structural failure of an impoundment can result in extensive
damage to the environment and natural resources, such as streams
or bodies of water and wildlife, as well as related personal
injuries and property damages which in turn can give rise to
extensive liability. Some of Patriot’s impoundments overlie
areas where some mining has occurred, which can pose a
heightened risk of failure and of damages arising out of
failure. If one of its impoundments were to fail, Patriot could
be subject to substantial claims for the resulting environmental
contamination and associated liability, as well as for fines and
penalties.
These and other similar unforeseen impacts that Patriot’s
operations may have on the environment, as well as exposures to
hazardous substances or wastes associated with Patriot’s
operations, could result in costs and liabilities that could
materially and adversely affect Patriot.
The
Clean Air Act and comparable state laws affect Patriot and its
customers, and could increase the cost of coal production and/or
reduce the demand for coal as a fuel source and thereby cause
sales and profitability to decline.
The Clean Air Act and comparable state laws regulate coal mining
operations both directly and indirectly. Direct impacts on coal
mining and processing operations may occur through air emission
permitting
requirements
and/or
emission control requirements, including requirements relating
to particulate matter. The Clean Air Act and comparable state
laws indirectly affect coal mining operations by extensively
regulating air emissions of particulate matter, including the
volume and size of particulate emitted, sulfur dioxide, or
SO2,
nitrogen oxide, or NOx, mercury and other compounds emitted by
coal-fired electricity generating plants. Public opposition has
been raised with respect to the proposed construction of certain
new coal-fired electricity generating plants due to the
potential air emissions that would result. Such regulation and
opposition could reduce the use of coal by power plants. Clean
Air Act and comparable state law requirements that may directly
or indirectly affect Patriot’s operations or those of its
electric utility customer base, and that could cause them to
reduce or otherwise alter their coal usage, include, without
limitation:
•
reduction of
SO2
emissions imposed by Title IV of the Clean Air Act;
•
reduction of
SO2,
NOx and ozone emissions under Federal National Ambient Air
Quality Standards;
•
reduction of NOx emissions under the NOx SIP Call program;
•
reduction of
SO2
and NOx emissions under the Clean Air Interstate Rule;
•
reduction of and permanent cap on mercury emissions from
coal-fired power plants under the Clean Air Mercury Rule;
•
potential reduction of carbon dioxide emissions; and
•
reduction requirements for regional haze around national parks
and national wilderness areas under EPA limitations.
The potential negative effects of these emissions and other
requirements on Patriot’s business include, without
limitation:
•
reduction in demand for Patriot’s coal by electric
utilities, Patriot’s largest customers, due to increased
compliance requirements, which could impose significant capital
expenditure burdens and costs on coal-fired electricity
generation;
•
reduction in demand for Patriot’s coal due to decisions by
Patriot’s customers to replace outdated coal plants with,
or to construct new plants using, alternative fuel technologies,
due to increased capital expenditure, cost, permitting
restrictions or public opposition; and
•
increased costs to Patriot of coal mining
and/or
processing due to permitting requirements
and/or
emission control requirements relating to particulate matter.
Any resulting decrease in the demand for Patriot’s coal
would adversely affect Patriot’s results of operations,
cash flows and financial condition.
Patriot’s
ability to operate the company effectively could be impaired if
it loses key personnel or fails to attract qualified
personnel.
Patriot manages its business with a number of key personnel, the
loss of a number of whom could have a material adverse effect on
it. In addition, as Patriot’s business develops and
expands, Patriot believes that its future success will depend
greatly on its continued ability to attract and retain highly
skilled and qualified personnel. Patriot cannot be certain that
key personnel will continue to be employed by it or that it will
be able to attract and retain qualified personnel in the future.
Patriot does not have “key person” life insurance to
cover its executive officers. Failure to retain or attract key
personnel could have a material adverse effect on it.
Terrorist
attacks and threats, escalation of military activity in response
to such attacks or acts of war may negatively affect
Patriot’s business, financial condition and results of
operations.
Terrorist attacks against U.S. targets, rumors or threats
of war, actual conflicts involving the United States or its
allies, or military or trade disruptions affecting
Patriot’s customers or the economy as a whole may
materially adversely affect Patriot’s operations or those
of its customers. As a result, there could be delays or losses
in transportation and deliveries of coal to Patriot’s
customers, decreased sales of its coal and extension
of time for payment of accounts receivable from its customers.
Strategic targets such as energy-related assets may be at
greater risk of future terrorist attacks than other targets in
the United States. In addition, disruption or significant
increases in energy prices could result in government-imposed
price controls. Any of these occurrences, or a combination of
them, could have a material adverse effect on Patriot’s
business, financial condition and results of operations.
You should carefully consider the risk factors relating to
Magnum set forth below, in addition to those risk factors
relating to Patriot that are also applicable to Magnum by virtue
of being an industry participant, under the sections captioned
“Risk Factors Relating to Patriot — A shortage
of skilled labor and qualified managers in Patriot’s
operating regions could pose a risk to achieving improved labor
productivity and competitive costs and could adversely affect
its profitability,”“— Patriot’s
ability to operate the company effectively could be impaired if
it loses key personnel or fails to attract qualified
personnel,”“— Patriot’s future success
depends upon its ability to develop its existing coal reserves
and to acquire additional reserves that are economically
recoverable,”“— Patriot’s coal mining
production and delivery are subject to conditions and events
beyond its control, which could result in higher operating
expenses
and/or
decreased production and sales and adversely affect its
operating results,”“— A decline in coal
prices could reduce Patriot’s revenues and the value of
Patriot’s coal reserves,”“— Inaccuracies in Patriot’s estimates of
economically recoverable coal reserves could result in lower
than expected revenues, higher than expected costs or decreased
profitability,”“— Defects in title of any
leasehold interests in Patriot’s properties could limit its
ability to mine these properties or result in significant
unanticipated costs,”“— Terrorist attacks
and threats, escalation of military activity in response to such
attacks or acts of war may negatively affect Patriot’s
business, financial condition and results of operations,”“— Patriot may be unable to obtain and renew
permits necessary for its operations, which would reduce its
production, cash flows and profitability,”“— Patriot’s mining operations are
extensively regulated, which imposes significant costs on it,
and future regulations and developments could increase those
costs or limit Patriot’s ability to produce and sell
coal,”“— The Clean Air Act and comparable
state laws affect Patriot and its customers, and could increase
the cost of coal production
and/or
reduce the demand for coal as a fuel source and thereby cause
sales and profitability to decline,”“— Concerns about the environmental impacts of
coal combustion, such as impacts on global climate change, are
resulting in increased regulation of coal combustion and could
significantly affect demand for Patriot’s
products.”
Magnum
is subject to certain operational concentration risks, most
notably at Panther, which could result in increased operating
expenses or decreased revenues.
Magnum’s operational results are highly dependent on
production at the Panther mining complex. Approximately 16% and
11% of Magnum’s production was derived from Panther in 2006
and 2007, respectively. The Panther mining complex experienced
difficult geologic conditions (sandstone intrusions on the face
of the longwall resulting in “hard cutting”)
commencing in late 2006 continuing through April of 2007. As a
result of the extended period of hard cutting in the longwall
panel mined in late 2006 and 2007, the mining equipment required
significant maintenance, impacting productivity. These
conditions had an adverse impact on production levels at the
Panther mining complex and, in turn, impacted Magnum’s
operating performance in 2006 and 2007. In late 2007, the
longwall equipment was moved to a new panel where the percentage
of “hard cutting” is expected to be lower than in the
previous panel. However, if such difficult conditions persist or
recur at Panther, they could disrupt operations and impact
production, which could have a material adverse impact on
Magnum’s financial results.
Magnum
is a relatively newly formed private company and has a limited
operating history.
Magnum was formed in October 2005. Some of the financial
information included in this proxy statement/prospectus is based
on management’s best estimates, derived from historical
data and assumptions, as to what revenues and costs would have
been had the Magnum acquired properties been operated on a stand-
alone basis for such periods. Accordingly, this information may
not reflect results of operations, financial position and cash
flows had the properties been operated on a stand-alone basis
for the periods presented, and should not be relied upon as
being indicative of the future performance or results of
operations. Magnum has only managed or operated all of its
mining complexes, properties and operations as an independent
company since the December 31, 2005 acquisition of the
Magnum acquired properties and the March 21, 2006 addition
of the Magnum contributed properties. As part of its formation
process, Magnum transitioned from the accounting and internal
control systems of its predecessors to a common platform to
enhance its internal controls over financial reporting. As a
private company, Magnum is not subject to the SEC regulations
applicable to public companies, as well as other laws or
regulations applicable to public companies, including those
relating to financial reporting or disclosure.
If
Magnum’s assumptions regarding its likely future expenses
related to employee benefit plans are incorrect, then
expenditures for these benefits could be materially higher than
Magnum has assumed.
Magnum’s operations are subject to long-term liabilities
under a variety of benefit plans and other arrangements with
current and former employees including post-retirement health
and life insurance benefits. The current and non-current accrued
portions of these long-term obligations as of December 31,2007, included $477.3 million of post-retirement
obligations and $15.1 million of benefits under the Coal
Industry Retiree Health Benefit Act of 1992, which we refer to
as the Coal Act. These obligations have been estimated based on
actuarial assumptions that are described in the notes to
Magnum’s consolidated financial statements included
elsewhere in this proxy statement/prospectus. However, if these
assumptions are incorrect, Magnum could be required to expend
greater amounts than anticipated. For a discussion of
postretirement benefit costs and workers’ compensation
obligations, including related sensitivity analysis, see
“Management’s Discussion & Analysis of
Financial Condition and Results of Operations of
Magnum — Critical Accounting Policies and
Estimates — Employee-Related Liabilities.”
Magnum contributes to multi-employer defined benefit pension
plans. Due to Magnum’s participation in multi-employer
pension plans, Magnum may have exposure under those plans that
extends beyond its obligation solely with respect to its
employees. In the event of a partial or complete withdrawal by
Magnum from any plan that is underfunded, Magnum would be liable
for a proportionate share of such plan’s unfunded vested
benefits. Based on the limited information available from plan
administrators, which Magnum cannot independently validate,
Magnum’s management believes that its portion of the
contingent liability in the case of a full withdrawal would be
material to Magnum’s financial position and results of
operations. In the event that any other contributing employer
withdraws from any plan that is underfunded, and such employer
(or any member in its controlled group) cannot satisfy its
obligations under the plan at the time of withdrawal, this would
increase the underfunding of the plan. Magnum, along with the
other remaining contributing employers, would be liable for its
proportionate share of such plan’s unfunded vested benefits
upon a withdrawal, which was estimated by Magnum to be
approximately $94.4 million at December 31, 2007. In
addition, if a multi-employer plan fails to satisfy the minimum
funding requirements, the Internal Revenue Service, pursuant to
Section 4971 of the Code, will impose an excise tax of 5%
on the amount of the accumulated funding deficiency. The Code
also requires contributing employers to make additional
contributions in order to reduce the deficiency to zero, which
may, along with the payment of the excise tax, have a material
adverse impact on Magnum’s financial results.
Magnum
may be subject to strikes, work stoppages and other
disruptions.
As of December 31, 2007, approximately 30% of Magnum’s
labor force was unionized. Hourly employees of Magnum’s
Hobet and Apogee mining complexes are members of the United Mine
Workers of America, which we refer to as the UMWA. Hobet and
Apogee are signatory to the National Bituminous Coal Wage
Agreement of 2007, which we refer to as the 2007 NBCWA, which
expires at the end of 2011. Apogee’s Guyan Surface Mine
also is signatory to a Memorandum of Understanding (MOU) that
modifies the 2007 NBCWA; the current MOU expires at the end of
June 2008 and the parties are in the process of finalizing a new
MOU that will expire at the end of 2011. If some or all of the
employees at any of Magnum’s mining operations strike or
take other work stoppage steps (as to which there can be no
assurances), productivity would be adversely affected, costs
would increase, profitability would be reduced and shipments of
coal to customers could be delayed or disrupted.
The National Labor Relations Act allows Magnum’s employees
to form or affiliate with a union. Additional unionization of
Magnum’s employees or of employees of contractors who mine
coal for Magnum could adversely affect the stability of
Magnum’s production and could increase costs or reduce
profitability.
Magnum’s
profitability may be adversely affected by the terms of, and its
commitments under, long-term coal supply agreements, and changes
in purchasing patterns in the coal industry may make it
difficult for Magnum to extend existing agreements or enter into
new long-term supply agreements.
Magnum sells coal through a combination of long-term and
short-term supply agreements. As of March 31, 2008,
approximately 96%, 65% and 32% of Magnum’s expected coal
production in 2008, 2009 and 2010, respectively, was committed
and priced under existing sales contracts. The price of coal
shipped under these agreements is typically fixed for the
initial year of the contract and may be subject to certain
adjustments in later years, and thus may be below the then
current market price for similar types of coal at any given
time, depending on the timeframe of contract execution or
commencement of deliveries.
Many of Magnum’s long-term supply agreements contain
provisions requiring Magnum to deliver coal meeting quality
thresholds for certain characteristics such as heat value,
sulfur content, ash content, hardness and ash fusion
temperature. Failure to meet these specifications could result
in economic penalties, including price adjustments, purchasing
replacement coal in the higher priced open market, the rejection
of deliveries or, in the extreme, termination of the contracts.
Many agreements also contain provisions that permit the parties
to adjust the contract price upward or downward for specific
events, including inflation or deflation, changes in the factors
affecting the cost of producing coal, such as taxes, fees,
royalties and changes in the law regulating the timing,
production, sale or use of coal. In a limited number of
contracts, failure of the parties to agree on a price under
those provisions may allow either party to terminate the
contract. Moreover, some of these agreements permit the customer
to terminate the contract if transportation costs, which are
typically borne by the customer, increase substantially or in
the event of changes in regulations affecting the coal industry
that increase the price of coal beyond specified amounts.
Magnum’s customers may decide not to extend existing
agreements or enter into new long-term contracts or, in the
absence of long-term contracts, may decide to purchase fewer
tons of coal than in the past or on different terms, including
under different pricing terms. Furthermore, uncertainty caused
by laws and regulations affecting electric utilities could deter
Magnum’s customers from entering into long-term coal supply
agreements. Some long-term contracts contain provisions for
termination due to environmental changes if these changes
prohibit utilities from burning the contracted coal. To the
degree that Magnum operates outside of long-term contracts, its
revenues are subject to pricing in the spot market that can be
significantly more volatile than the pricing structure
negotiated through a long-term coal supply agreement. This
volatility could adversely affect the profitability of
Magnum’s operations if spot market pricing for coal becomes
unfavorable.
The
loss of, or significant reduction in, purchases by Magnum’s
largest customers could adversely affect Magnum’s
revenues.
In 2007, Magnum’s top 10 customers accounted for 95% of its
coal sales by volume. The three customers that each accounted
for 10% or more of its 2007 coal sales were American Electric
Power (43% of 2007 volume), Progress Fuels Corporation (15% of
2007 volume) and The Dayton Power and Light Company (13% of 2007
volume). Magnum has approximately 7.9 million tons of
contracts expiring in 2008. If any of these customers
significantly reduce their purchases of coal, or if Magnum is
unable to sell coal to them in the future on terms as favorable
as the terms under current agreements, its financial condition
and results of operations could suffer.
Magnum
has stopped its participation in the production of
“synfuel” which has historically generated a portion
of Magnum’s revenue.
Historically, Magnum has generated revenue from sales of
synfuel, a solid fuel derived from coal that is typically
converted to synfuel with the application of a petroleum-based
product. Magnum stopped production of synfuel at the end of 2007
because the federal synfuel tax credit, also known as a
Section 29 credit (Section 29 of the Code was
redesignated as Section 45K of the Code effective as of
January 1, 2006), ended on December 31, 2007, thereby
eliminating the benefit to purchasers of buying synfuel.
If
Arch Coal fails to fulfill its indemnification obligations to
Magnum under the Arch purchase and sale agreement, or if Magnum
is required to indemnify Arch Coal thereunder, Magnum’s
liabilities could increase.
Pursuant to the Arch purchase and sale agreement, Arch Coal
agreed to indemnify Magnum for losses arising from breaches of
its representations, warranties, covenants and agreements in the
Arch purchase and sale agreement. The successful assertion of
third-party claims after the expiration of the applicable
survival period or in excess of the applicable indemnification
liability cap in the Arch purchase and sale agreement, or the
failure or inability of Arch Coal to satisfy its indemnification
obligations to Magnum, could have an adverse effect on
Magnum’s results of operations and financial position.
Also pursuant to the Arch purchase and sale agreement, Magnum
agreed to indemnify Arch Coal with respect to losses arising
from breaches of Magnum’s representations, warranties,
covenants and agreements thereunder. The assertion of claims by
Arch Coal with respect to breaches of Magnum’s
representations and warranties or other indemnifications Magnum
has provided to it under the Arch purchase and sale agreement
could have an adverse effect on Magnum’s results of
operations and financial position to the extent of the indemnity
thresholds contained therein and to the extent that the
applicable survival periods have not yet expired.
Increases
in the price of steel, petroleum products, tires and other
materials used in Magnum mining operations could impair
Magnum’s operating profitability.
Magnum’s coal mining operations use significant amounts of
steel, diesel fuel and tires. The price of steel, which is used
in making roof bolts that are required by the
room-and-pillar
method of mining, has risen significantly in recent years. Costs
of diesel fuel, explosives and tires have all risen
significantly to relatively high levels. Increases in the price
of steel, petroleum products, tires and other commodities could
have a negative impact on Magnum’s profitability.
Any
change in coal consumption patterns, in particular by U.S.
electric power generators, resulting in a decrease in the use of
coal could result in lower demand and therefore lower prices for
Magnum’s coal, which would reduce Magnum’s revenue and
adversely impact earnings and the value of Magnum’s coal
reserves.
Steam coal accounted for virtually all of Magnum’s coal
sales volume in 2007. Most of the coal Magnum produced in 2007
was shipped to U.S. electric utilities and Magnum expects
that electric utilities will continue to remain the primary
users of Magnum’s coal. The amount of coal consumed for
U.S. electric power generation is affected primarily by the
overall demand for electricity; the location, availability,
quality and price of competing fuels for power such as natural
gas, nuclear, fuel oil and alternative energy sources such as
wind and hydroelectric power; technological developments
including those related to alternative energy sources; and
environmental and other governmental regulations. In addition,
the increasingly stringent requirements of the Clean Air Act and
other existing or potential laws regulating air emissions may
result in more electric power generators shifting from
coal-fueled generation, and building more non-coal power
electrical generating sources in the future. In addition,
weather patterns can affect energy demand and consequently
greatly affect electricity generation. Overall economic activity
and the associated demands for power by industrial users also
can have significant effects on overall electricity demand. In
the past, economic slowdowns have significantly reduced the
growth of electrical demand and, in some locations, resulted in
contraction of demand. Any downward pressure on coal prices,
whether due to increased use of alternative energy sources,
changes in weather patterns, decreases in overall demand or
otherwise, would likely cause Magnum’s profitability to
decline.
Fluctuations
in transportation costs, the availability or reliability of
transportation facilities and Magnum’s dependence on a
single rail carrier for transport from three of its mining
complexes could affect the demand for Magnum’s coal or
temporarily impair Magnum’s ability to supply coal to its
customers.
Increases in transportation costs, including increases resulting
from fluctuations in the price of diesel fuel, could make coal a
less competitive source of energy when compared to alternative
fuels such as natural gas, or could make Central Appalachian
coal production less competitive than coal produced in other
regions of the United States or abroad. On the other hand,
significant decreases in transportation costs could result in
increased competition from coal producers in other parts of the
country and from abroad. For instance, coordination of the many
eastern loading facilities, the large number of small shipments,
terrain and labor issues all combine to make shipments
originating in the Eastern United States inherently more
expensive on a per
ton-mile
basis than shipments originating in the Western United States.
Historically, coal transportation rates from the western coal
producing areas into Central Appalachian markets limited the use
of western coal in those markets. However, a decrease in rail
rates from the western coal producing areas to markets served by
eastern U.S. producers could create major competitive
challenges for eastern producers. Increased competition due to
changing transportation costs could have an adverse effect on
Magnum’s business, financial condition and results of
operations.
Magnum depends upon barge, rail and truck transportation systems
to deliver coal to its customers. Disruption of these
transportation services due to weather-related problems,
mechanical difficulties, strikes, lockouts, bottlenecks, and
other events could temporarily impair Magnum’s ability to
supply coal to its customers, resulting in decreased shipments.
Decreased performance levels over longer periods of time could
cause customers to look to other sources for their coal needs,
negatively affecting Magnum’s revenue and profitability.
Coal produced at Magnum’s Jupiter, Hobet and Apogee mining
complexes is transported to its customers by a single rail
carrier, CSX Transportation. If there are significant
disruptions in the rail services provided by CSX Transportation
or if the rates charged by CSX Transportation rise
significantly, then costs of transportation for coal produced by
Magnum could increase substantially.
Additionally, if there are disruptions of the transportation
services provided by the railroad and Magnum is unable to find
alternative transportation providers to ship its coal, its
business and profitability could be adversely affected.
Failure
to obtain or renew surety bonds in a timely manner and on
acceptable terms could affect Magnum’s ability to secure
reclamation, coal lease obligations and employee related
obligations which could adversely affect Magnum’s ability
to mine or lease coal.
U.S. federal and state laws require Magnum to obtain surety
bonds to secure payment of certain long-term obligations such as
mine closure or reclamation costs, federal and state
workers’ compensation costs, coal leases and other
obligations. Surety bond issuers and holders may not continue to
renew the bonds or may demand additional collateral or other
less favorable terms upon renewal. Magnum’s failure to
maintain, or inability to acquire, surety bonds or to provide a
suitable alternative would have a material adverse effect on it.
That failure could result from a variety of factors including
lack of availability, higher expense or unfavorable market terms
of new surety bonds, restrictions on the availability of
collateral for current and future third-party surety bond
issuers under the terms of Magnum’s existing credit
facilities, the exercise by third-party surety bond issuers of
their right to refuse to renew the surety, and insufficient
borrowing capacity under Magnum’s existing credit
facilities for additional letters of credit.
As of December 31, 2007, Magnum had posted
$26.3 million of surety bonds to secure reclamation
obligations backed by $17.2 million in letters of credit to
honor these requirements. Arch Coal currently
guarantees $94.1 million of reclamation obligation bonds
under the Arch purchase and sale agreement. If Magnum cannot
obtain a release of the Arch Coal guarantees related to
reclamation bonds by September 30, 2008, Magnum will be
required to post a letter of credit in Arch Coal’s favor in
the amount of the portion of the reclamation bonds guaranteed by
Arch Coal that is reflected as a liability on Magnum’s
balance sheet. Alternatively, if Magnum enters into a merger
with a publicly traded coal company such as Patriot prior to
September 30, 2008, and prior to the closing of such a
transaction, Magnum has not obtained the release of the Arch
Coal guarantees outstanding, Magnum will be required to post
letters of credit in Arch Coal’s favor in accordance with a
specific schedule after the closing of such a merger. This
requirement applies to the merger. Following the termination of
Arch Coal’s guarantee, or earlier in the event that Arch
Coal has defaulted on its guarantee, Magnum could be subject to
increased costs to maintain the surety bonds or be unable to
obtain replacement surety bonds. In either case, Magnum’s
ability to mine or lease coal could be adversely affected by an
inability to post surety bonds.
If
Magnum’s business does not generate sufficient cash for
operations, it may not be able to repay borrowings under its
credit facility or fund other liquidity needs.
Magnum is dependent on its ability to generate cash flows from
operations or utilize borrowings under its credit facility to
provide the necessary liquidity to maintain and expand its
business. There can be no assurance that Magnum will be able to
generate sufficient cash flows to meet such needs, which could
result in insufficient liquidity to operate the business or a
default by Magnum under its existing credit facility.
Increased
competition within the coal industry, including competition from
alternative fuel providers, may adversely affect Magnum’s
ability to sell coal, and any excess production capacity in the
industry could put downward pressure on coal
prices.
The coal industry is intensely competitive both within the
industry and with respect to other fuels. The most important
factors on which Magnum competes are price, coal quality and
characteristics, transportation costs from the mine to the
customer and reliability of supply. Magnum’s principal
competitors include Alpha Natural Resources, Inc., Arch Coal,
Foundation Coal Holdings, Inc., International Coal Group, Inc.,
James River Coal Company, Massey Energy Company and, prior to
the merger described in this proxy statement/prospectus,
Patriot. Magnum also competes directly with all other Central
Appalachian coal producers, as well as producers from other
basins including Northern and Southern Appalachia, the Western
United States and the Interior United States, and foreign
countries, including Colombia and Venezuela. Increases in coal
prices could encourage the development of expanded coal
producing capacity in the United States and abroad. Any
resulting overcapacity from existing or new competitors could
reduce coal prices and, therefore, Magnum’s revenue.
Depending on the strength of the U.S. dollar relative to
currencies of other coal-producing countries, coal from such
origins could enjoy cost advantages that Magnum does not have.
Several domestic coal-producing regions have lower-cost
production than Central Appalachia, including the Powder River
Basin in Wyoming.
Magnum also faces competition from alternative fuel providers.
Should alternative fuels that are viewed as more environmentally
friendly become more competitively priced and sought after as an
energy substitute for fossil fuels, the demand for such fuels
may adversely impact the demand for coal.
Judicial
rulings that restrict the issuance of permits pursuant to the
Clean Water Act could significantly increase Magnum’s
operating costs, discourage customers from purchasing
Magnum’s coal and materially harm Magnum’s financial
condition and operating results.
As is the case with other coal mining companies, Magnum often
needs to construct fills and impoundments in channels that may
constitute “waters of the United States,” as defined
under the CWA. To do so lawfully, it must, in the normal course
of its mining operations, obtain permits pursuant to
Section 404 of the CWA. The Army Corps of Engineer, which
we refer to as the ACOE, issues two types of permits pursuant to
Section 404 of the CWA: general (or “nationwide”)
and “individual” permits. Magnum often applies for
authorizations pursuant to (i) Nationwide Permit 21, which
is issued by the ACOE in relation to surface coal
mining operations; (ii) Nationwide Permit 50, which is
issued by the ACOE in relation to underground coal mining; and
(iii) Nationwide Permit 49, which is issued by the ACOE in
relation to its remaining operations. Applications for
individual permits typically are submitted for valley fills and
impoundments at large surface coal mining operations.
During the last few years, lawsuits challenging the ACOE’s
authority generally to issue nationwide and individual permits
to various companies have been instituted by certain
environmental groups and, in some instances, environmental
groups have also sought to enjoin the use of specific permits
issued by the ACOE. Two such cases that remain pending or on
appellate review are Ohio Valley Environmental
Coalition v. Colonel Dana Hurst, U.S. Army Corp of
Engineers, Civil Action
No. No. 3:03-2281
(S.D. W.Va.) and Ohio Valley Environmental Coalition v.
U.S. Army Corps of Engineers, Civil Action
No. 3:05-0784
(S.D. W.Va.). In the first of these cases filed against the ACOE
involving nationwide permits, a claimant sought a preliminary
injunction to enjoin the use of a permit already issued by the
ACOE to Apogee, a Magnum subsidiary. However, on May 23,2007, the claimant agreed to withdraw its motion for preliminary
injunction and mining under the permit has proceeded. In March
2007, in the second lawsuit, the District Court for the Southern
District of West Virginia rescinded individual permits issued to
one of Magnum’s competitors in the coal industry.
Subsequently on October 11, 2007, the district court in the
same suit issued a temporary restraining order and preliminary
injunction against the Callisto Surface Mine of Jupiter Holdings
LLC, another Magnum subsidiary, whereby the ACOE was enjoined
from granting a valley fill permit to the Callisto Surface Mine,
resulting in the cessation of mining activities. The
court’s March 2007 decision in the second case currently is
under appeal to the Court of Appeals for the Fourth Circuit and
will be heard in September 2008. To date, no similar challenges
attacking the ACOE’s permitting under the CWA have survived
appellate review, but lower court decisions in favor of groups
opposing coal mining have been routine.
There can be no assurance that similar claims or motions will
not be filed or that future judicial rulings will neither
interfere with the ACOE’s issuance of permits pursuant to
the CWA nor enjoin Magnum’s use of any permits issued by
the ACOE. If mining methods are limited or prohibited as a
result of future judicial rulings, it could significantly
increase Magnum’s operational costs, make it more difficult
to economically recover a significant portion of its reserves
and have a material adverse effect on Magnum’s financial
condition and results of operations. Magnum may not be able to
increase the price it charges for coal to cover higher
production costs without reducing customer demand for
Magnum’s coal.
Magnum
has significant reclamation and mine closure obligations. If the
assumptions underlying Magnum’s accruals are materially
inaccurate, Magnum could be required to expend greater amounts
than anticipated.
The Surface Mining Control and Reclamation Act of 1977, or
SMCRA, establishes operational, reclamation and closure
standards for all aspects of surface mining as well as most
aspects of deep mining. Estimates of Magnum’s total
reclamation and mine-closing liabilities are based upon permit
requirements and Magnum’s engineering expertise related to
these requirements. As of December 31, 2007, Magnum had
accrued reserves of $55.5 million for reclamation
liabilities and mine closures and an additional
$6.7 million for medical benefits for employees due to mine
closure. The estimate of ultimate reclamation liability is
reviewed periodically by Magnum’s management and engineers.
The estimated liability can change significantly if actual costs
vary from assumptions or if governmental regulations change
significantly. Statement of Financial Accounting Standard
No. 143, “Accounting for Asset Retirement
Obligations,” or Statement No. 143 requires that
retirement obligations be recorded as a liability based on fair
value, which is calculated as the present value of the estimated
future cash flows. In estimating future cash flows, Magnum
considered the estimated current cost of reclamation and applied
inflation rates and a third-party profit, as necessary. The
third-party profit is an estimate of the approximate markup that
would be charged by contractors for work performed on a
company’s behalf. However, due to the nature of the coal
mining reclamation work, Magnum’s management believes that
it is impractical for external parties to agree on a fixed price
today. Therefore, a market risk premium has not been included in
reclamation liability. Magnum’s resulting liability could
change significantly if actual costs differ from Magnum’s
estimates. See also “Risk Factors Relating to
Magnum — Failure to obtain or renew surety bonds in a
timely manner and on
acceptable terms could affect Magnum’s ability to secure
reclamation, coal lease obligations and employee related
obligations which could adversely affect Magnum’s ability
to mine or lease coal.”
Magnum’s
operations may impact the environment or cause exposure to
hazardous materials, and its properties may have environmental
contamination, which could result in material
liabilities.
Certain of Magnum’s current and historical coal mining
operations have used materials considered to be hazardous
materials and, to the extent that such materials have not been
recycled, they could become hazardous waste. Magnum may be
subject to claims under federal and state statutes
and/or
common law doctrines for toxic torts and other damages, as well
as for natural resource damages and the investigation and clean
up of soil, surface water, groundwater, and other media under
laws such as CERCLA, commonly known as Superfund. Such claims
may arise, for example, out of current or former conditions at
sites that Magnum owns or operates currently, as well as at
sites that it and companies it acquired owned or operated in the
past, and at contaminated sites that have always been owned or
operated by third parties. Liability may be without regard to
fault and may be strict, joint and several, so that Magnum may
be held responsible for more than its share of the contamination
or other damages, or even for the entire share.
Magnum maintains extensive coal refuse areas and coal slurry
impoundments at a number of its mining complexes. Such areas and
impoundments are subject to extensive regulation. Slurry
impoundments maintained by other coal mining operations have
been known to fail, releasing large volumes of coal slurry into
the surrounding environment. Structural failure of an
impoundment can result in extensive damage to the environment
and natural resources, such as bodies of water that the coal
slurry reaches, as well as liability for related personal
injuries and property damages, and injuries to wildlife, which
in turn can give rise to extensive liability. Some of
Magnum’s impoundments overlie mined out areas, which can
pose a heightened risk of failure and of damages arising out of
failure. If one of these impoundments were to fail, Magnum could
be subject to substantial claims for the resulting environmental
contamination and associated liability, as well as for fines and
penalties.
Drainage flowing from or caused by mining activities can be
acidic with elevated levels of dissolved metals; a condition
referred to as “acid mine drainage,” or AMD. The
treatment of AMD can be costly. Although Magnum does not
currently face material costs associated with AMD, it is
possible that Magnum could incur significant costs in the future.
These and other similar unforeseen impacts that Magnum’s
operations may have on the environment, as well as exposures to
hazardous substances or wastes associated with Magnum’s
operations, could result in costs and liabilities that could
materially and adversely affect Magnum.
Environmental
litigation could result in delays in Magnum’s efforts to
obtain new permits, and in certain cases new permits may not be
issued.
In 2007, Magnum was sued in state court in Boone County, West
Virginia, by the West Virginia Department of Environmental
Protection, which we refer to as the WVDEP. In 2007 and 2008,
Magnum was sued in the U.S. District Court for the Southern
District of West Virginia by the Ohio Valley Environmental
Coalition, which we refer to as OVEC, and another environmental
group (pursuant to citizen suit provisions), which we refer to
as the Federal OVEC Case. The lawsuits each allege that Magnum
has violated certain water discharge limits set forth in a
number of its National Pollutant Discharge Elimination System
permits. The lawsuits are seeking fines and penalties as well as
injunctions prohibiting Magnum from further violating laws and
its permits.
Some of the alleged violations relate to exceedances of
selenium. There is currently no reasonably available technology
that has been proven to effectively address selenium exceedances
in permitted water discharges, and as a result the WVDEP
deferred the obligations (of Magnum and other companies) to
comply with the current selenium discharge limit obligations in
those permits. However, many of those deferrals are themselves
the subject of an administrative appeal and other challenges by
environmental groups. On May 28, 2008 the judge in the
Federal OVEC Case determined that the attempted deferral of the
selenium discharge limits set forth in one Apogee permit failed
to meet certain procedural requirements, and as a result has
ordered Apogee to develop a treatment plan within thirty days,
and to implement that plan within ninety days or to show cause
of its inability to do so. Magnum is actively engaged in
studying potential solutions to controlling selenium discharges,
and has submitted a proposed treatment plan to the WVDEP in
March of 2008 and is awaiting WVDEP’s final approval.
The federal Environmental Protection Agency, which we refer to
as the EPA, is currently considering revisions to the selenium
standards that would increase the permissible levels. However,
there can be no assurance that the standards will be changed.
In addition, the EPA has recently issued a request for
information to Magnum which seeks extensive information
regarding its water discharges, and may in the future institute
a regulatory proceeding that could ultimately seek similar or
additional remedies to those requested by the lawsuits described
above.
As a result of the litigation, the process of applying for new
permits has become more time-consuming and complex, the review
and approval process is taking longer, and in certain cases new
permits may not be issued. If such litigation is determined
adversely to Magnum, or if Magnum is unable to comply with
enforceable legal requirements or judicial decisions, Magnum
could incur significant and material fines and penalties, could
be required to incur material costs to modify operations, could
potentially be required to shut-down some operations, and could
otherwise be materially adversely affected.
Magnum
is involved in legal proceedings that if determined adversely to
Magnum, could significantly impact its profitability, financial
position or liquidity.
Magnum is involved in various legal proceedings that arise in
the ordinary course of its business. Some of the lawsuits seek
damages in very large amounts, or seek to restrict the
company’s business activities. In addition to the lawsuits
described under the section captioned “Business of
Magnum — Legal Proceedings”, Apogee, a
subsidiary of Magnum, has been sued, along with eight other
defendants, including Monsanto Company, Pharmacia Corporation
and Akzo Nobel Chemicals, Inc. by certain plaintiffs in state
court in Putnam County, West Virginia. The lawsuits were filed
in October 2007, but not served on Apogee until February 2008,
and each are identical except for the named plaintiff. They each
allege personal injury occasioned by exposure to dioxin
generated by a plant owned and operated by certain of the other
defendants during production of a chemical, 2,4,5-T, from
1949-1969.
Apogee is alleged to be liable as the successor to the
liabilities of a company that owned and /or controlled a dump
site known as the Manila Creek landfill, which allegedly
received and incinerated dioxin-contaminated waste from the
plant. The lawsuits seek class action certification as well as
compensatory and punitive damages for personal injury. The
ultimate resolution of these lawsuits cannot be determined at
this time, but Magnum will represent its interests vigorously in
all of the proceedings that it is defending or prosecuting. Any
liabilities resulting from such proceedings may be material, and
if ultimately determined adversely to Magnum, could have a
material adverse effect on Magnum.
This proxy statement/prospectus is being mailed to Patriot
stockholders on or about June 20, 2008 in connection with
the solicitation of proxies by the board of directors of Patriot
for use at the special meeting of Patriot stockholders to be
held on July 22, 2008 at 10:00 a.m., local time, at
the Donald Danforth Plant Science Center at 975 North Warson
Road, St. Louis, MO63132, and at any properly reconvened
meeting following an adjournment or postponement thereof.
Stockholders will consider and vote upon the proposal to approve
the issuance of Patriot common stock to the holders of Magnum
common stock pursuant to the merger agreement and to transact
such other business as may properly come before the meeting or
any properly reconvened meeting following an adjournment or
postponement thereof.
The board of directors of Patriot has determined that the
issuance of Patriot common stock to the holders of Magnum common
stock pursuant to the merger agreement is advisable and in the
best interests of Patriot’s stockholders. The board of
directors of Patriot recommends that stockholders vote
“FOR” approving the issuance of Patriot common stock
to the holders of Magnum common stock pursuant to the merger
agreement.
The close of business on June 16, 2008 has been fixed as
the record date for the determination of stockholders entitled
to notice of, and to vote at, the special meeting and at any
properly reconvened meeting following an adjournment or
postponement thereof. At the close of business on the record
date, there were outstanding approximately
26,755,877 shares of Patriot common stock.
The approval of the issuance of Patriot common stock to the
holders of Magnum common stock pursuant to the merger agreement
requires the affirmative vote of a majority of the votes cast by
all stockholders at the special meeting where the total vote
cast represents over fifty percent in interest of the Patriot
common stock entitled to vote on the issuance. Stockholders will
be entitled to one vote for each share of Patriot common stock
that they owned on the record date on all matters submitted for
a vote at the special meeting.
The presence at the special meeting, in person or by proxy, of
stockholders entitled to cast at least a majority of the votes
that all stockholders are entitled to cast at the special
meeting will constitute a quorum, which is necessary to hold the
special meeting. Abstentions and broker non-votes are counted in
determining whether a quorum is present. A broker non-vote
occurs when a broker or other nominee holding shares for a
beneficial owner does not receive voting instructions from the
beneficial owner. Abstentions and broker non-votes, because they
are not treated as votes cast, will have no effect on whether
the proposal to approve the issuance of Patriot common stock to
the holders of Magnum common stock pursuant to the merger
agreement receives a majority of the votes cast but will not be
treated as a vote cast at the special meeting for purposes of
determining whether the vote cast represents over fifty percent
in interest of the Patriot common stock entitled to vote on the
issuance.
At the close of business on the record date, directors and
executive officers of Patriot beneficially owned and were
entitled to vote, in the aggregate, approximately
325,073 shares of Patriot common stock, which represented
approximately 1.215% of the shares of Patriot common stock
outstanding on that date. The directors and executive officers
of Patriot have informed Patriot that they intend to vote all of
their shares of Patriot common stock “FOR”approving the issuance of Patriot common stock to the
holders of Magnum common stock pursuant to the merger agreement.
This proxy statement/prospectus is being sent to Patriot
stockholders on behalf of the board of directors of Patriot for
the purpose of requesting that you allow your shares of Patriot
common stock to be represented by the persons named in the
enclosed proxy card. All shares of Patriot common stock
represented at the special meeting by properly executed proxy
cards will be voted in accordance with the instructions
indicated on that proxy. If you sign and return a proxy card
without giving voting instructions, your shares will be voted
“FOR”the approval of the issuance of Patriot
common stock to the holders of Magnum common stock pursuant to
the merger agreement, as recommended by the board of directors
of Patriot.
You can also authorize the voting of your shares via the
Internet by visiting the websitewww.voteproxy.com and
following the instructions provided or by telephone from the
United States, Canada or Puerto Rico, by dialing 1-800-PROXIES
and following the recorded instructions. The telephone and
Internet voting facilities for the stockholders of record of all
shares, other than those held in the Patriot Coal Corporation
401(k) Retirement Plan, close at 10:59 p.m. Central
Time on July 21, 2008. The Internet and telephone voting
procedures are designed to authenticate stockholders by use of a
control number and to allow you to confirm your instructions
have been properly recorded. If you hold Patriot shares through
the Patriot Coal Corporation 401(k) Retirement Plan or in
“street name” through a broker, see the discussion
below.
If you hold shares of record as a registered stockholder, please
follow the voting instructions included on the enclosed proxy
card.
If you hold shares of Patriot common stock in the Patriot Coal
Corporation 401(k) Retirement Plan, you will receive a single
proxy/voting instruction card with respect to all shares
registered in your name, whether inside or outside of the plan.
If your accounts inside and outside of the plan are not
registered in the same name, you will receive a separate
proxy/voting instruction card with respect to the shares
credited in your plan account. Voting instructions regarding
plan shares must be received by 10:59 p.m. Central
Time on July 21, 2008, and all telephone and Internet
voting facilities with respect to plan shares will close at that
time. Your proxy will serve as voting instructions to
Vanguard Fiduciary Trust Company, trustee of the plan. If
you submit a proxy and do not indicate how you wish to vote, the
trustee of the plan will vote your shares in favor of the
issuance of Patriot common stock pursuant to the merger
agreement. If you do not submit a valid proxy by
10:59 p.m. Central Time on July 21, 2008, your
shares held through the Patriot Coal Corporation 401(k)
Retirement Plan will be voted in the same proportion as those
shares in the Patriot Coal Corporation 401(k) Retirement Plan
for which voting instructions have been received.
If your shares are held in “street name,” which means
your shares are held of record by a broker, you will need to
obtain instructions from the institution that holds your shares
and follow the instructions included on that form regarding how
to instruct your broker to vote your shares. Many such firms
make telephone
and/or
Internet voting available, but the specific processes available
will depend on those firms’ individual arrangements. If you
do not provide your broker with instructions on how to vote your
shares, your shares will not be voted and will have no effect on
the vote for the proposal to approve the issuance of Patriot
common stock pursuant to the merger agreement and will not be
treated as a vote cast at the special meeting for purposes of
determining whether the vote cast represents over fifty percent
in interest of the Patriot common stock entitled to vote on the
issuance.
Even if you plan to attend the special meeting, Patriot
recommends that you submit your proxy so that your vote will be
counted should you later decide not to attend the meeting. If
you own shares in “street name” and you wish to vote
at the special meeting in person, you will need to ask your bank
or broker for an admission card in the form of a confirmation of
beneficial ownership. You will need to bring a confirmation of
beneficial ownership with you to vote at the special meeting. If
you do not receive your confirmation of beneficial ownership in
time, bring your most recent brokerage statement with you to the
special meeting. We can use that to verify your ownership of
Patriot common stock and admit you to the meeting; however, you
will not be able to vote your shares at the meeting without a
confirmation of beneficial ownership.
Patriot does not expect that any matter other than the proposal
to approve the issuance of Patriot common stock to the holders
of Magnum common stock pursuant to the merger agreement will be
brought before the special meeting. If, however, any other
matter is properly presented at the special meeting or any
properly reconvened meeting following an adjournment or
postponement of the special meeting, the persons named as
proxies in the proxy card will use their own judgment to
determine how to vote your shares.
You may revoke your proxy at any time prior to the time the vote
is taken at the special meeting. To revoke your proxy, you must
either submit a signed notice of revocation to Patriot’s
Corporate Secretary at the address set forth on
page Q-3,
submit a later-dated proxy or attend the special meeting and
vote your shares in person. Attendance at the special meeting
does not by itself constitute revocation of a proxy. If you hold
shares through the Patriot Coal Corporation 401(k) Retirement
Plan, you may change your voting instructions to the plan
trustee by submitting a new valid proxy bearing a later date by
the Internet, telephone or mail. To allow sufficient time for
voting by the plan trustee, any changes in your voting
instructions must be received by 10:59 p.m., Central Time,
July 21, 2008. If your shares are held in “street
name,” you may change your vote by submitting new voting
instructions to your broker in accordance with the procedures
established by it. Please contact your broker and follow its
directions in order to change your vote.
Patriot will pay all fees and expenses incurred in relation to
the printing, filing and distribution of this proxy
statement/prospectus and the proxy cards to Patriot
stockholders. Copies of solicitation materials will be furnished
to banks, brokerage houses, fiduciaries and custodians holding
in their names shares of Patriot common stock beneficially owned
by others to forward to such beneficial owners. Persons
representing beneficial owners of Patriot common stock may be
reimbursed for their costs of forwarding solicitation materials
to such beneficial owners. In addition to soliciting proxies by
mail, directors, officers or employees of Patriot and Magnum may
solicit proxies personally and by telephone, email or otherwise.
None of these persons will receive additional or special
compensation for soliciting proxies.
Patriot has retained Georgeson Inc. to assist in the
solicitation of proxies for the special meeting and to verify
the records relating to the solicitations. Georgeson Inc. will
be paid a retainer fee of $9,500 and additional fees based upon
actual services provided, plus reimbursement of its
out-of-pocket expenses.
Patriot Coal Corporation, a Delaware corporation, is a leading
producer and marketer of coal in the eastern United States, with
ten company-operated mines and numerous contractor-operated
mines in Appalachia and the Illinois Basin. Patriot ships to
electric utilities, industrial users and metallurgical coal
customers, and controls approximately 1.3 billion tons of
proven and probable coal reserves. Patriot’s common stock
trades on the New York Stock Exchange under the symbol PCX.
Patriot’s executive offices are located at 12312 Olive
Boulevard, Suite 400, St. Louis, Missouri63141. Its
telephone number is
(314) 275-3600.
Magnum Coal Company, a Delaware corporation, is one of the
largest coal producers in Central Appalachia based on 2007
production. As of January 1, 2008, Magnum controlled proven
and probable
reserves of 606.6 million tons of coal. Based on 2007
production of 16.1 million tons, Magnum’s reserve base
could support similar levels of production for more than
30 years.
Magnum was incorporated under the laws of the State of Delaware
on October 5, 2005 under the name Magnum Coal Company.
Magnum’s principal executive offices are located at 500 Lee
Street East, Suite 900, Charleston, West Virginia25301 and
Magnum’s telephone number is
(304) 380-0200.
Colt Merger Corporation is a Delaware corporation and a wholly
owned subsidiary of Patriot. Colt Merger Corporation was
organized on March 5, 2008 solely for the purpose of
effecting the merger with Magnum. Colt Merger Corporation has
not carried on any activities other than in connection with the
merger agreement. Colt Merger Corporation’s executive
offices are located at 12312 Olive Boulevard, Suite 400,
St. Louis, Missouri63141. Its telephone is
(314) 275-3600.
Patriot completed its spin-off from Peabody on October 31,2007 and began trading as an independent public company on the
New York Stock Exchange on November 1, 2007. Prior to the
spin-off, Peabody and Magnum had held preliminary inconclusive
discussions about a possible acquisition of Magnum by Peabody.
In early November 2007, Mr. Paul H. Vining, President and
Chief Executive Officer of Magnum, contacted Mr. Richard M.
Whiting, President and Chief Executive Officer of Patriot, to
discuss the possibility of an acquisition of Magnum by Patriot.
Mr. Whiting informed Patriot’s board of directors of
the acquisition opportunity and was authorized by the Patriot
board to conduct preliminary discussions with Magnum regarding
the possible transaction. On November 5 and November 6,2007, Mr. Whiting and Irl F. Engelhardt, chairman of
Patriot’s board of directors, met with Mr. Vining and
Robb E. Turner, a representative of the ArcLight Funds, to
further discuss the possibility of an acquisition by Patriot of
Magnum.
Following these preliminary discussions, on November 8,2007, Patriot and Magnum entered into customary confidentiality
agreements and began their respective due diligence
investigations. On November 14, 2007, Patriot retained
Lehman Brothers to provide financial advisory services to
Patriot in connection with the possible acquisition of Magnum.
Between mid-November and mid-December 2007, Patriot’s
senior management and Lehman Brothers conducted preliminary
financial due diligence on Magnum with the assistance of
Magnum’s senior management and Magnum’s financial
advisor, Citigroup Global Markets Inc.
On December 14, 2007, at a regular meeting of
Patriot’s board of directors, Mr. Whiting and other
members of Patriot’s senior management updated the board
regarding discussions with Magnum and its preliminary due
diligence. At the conclusion of the meeting, Patriot’s
board authorized management, subject to further board approval,
to continue to explore the possibility of an acquisition of
Magnum in exchange for shares of Patriot common stock that would
value Magnum within a specified range, to develop and negotiate
the terms of the acquisition, to engage key transaction
advisors, to commence detailed due diligence regarding the
potential acquisition and to explore long-term capital structure
alternatives in connection with the potential acquisition.
Following the Patriot board meeting, and during the remainder of
December 2007 and into early January 2008, Patriot’s senior
management and its financial advisor conducted several
discussions regarding financial due diligence, synergies,
business philosophy and other matters with representatives of
Magnum, its financial advisor and representatives of the
ArcLight Funds. Following these discussions, between January 5
and January 7, 2008, Messrs. Whiting and Vining
discussed the financial parameters of a possible acquisition of
Magnum with consideration payable to Magnum stockholders in
Patriot common stock that would value Magnum at 26% of Patriot
on a pro forma basis for the acquisition, subject to
approval of Patriot’s board of directors, the completion of
due diligence, putting in place appropriate financing
arrangements (including matters related to Patriot’s
existing credit facility), and the negotiation of definitive
documentation. The value of 26% of Patriot on a pro forma
basis equated to approximately 9.4 million shares of
Patriot common stock. The parties also discussed adding to the
Patriot board of directors up to two additional members
designated by Magnum’s stockholders.
On January 8, 2008, Patriot provided an initial draft of a
preliminary non-binding term sheet and exclusivity letter to
Magnum reflecting discussions to date.
On January 10, 2008, a special meeting of Patriot’s
board of directors was held. At the meeting, Mr. Whiting
and other members of Patriot’s senior management updated
the board regarding continued discussions with Magnum and the
ArcLight Funds regarding the potential acquisition. After
discussion, Patriot’s board of directors authorized
Patriot’s management to finalize a preliminary non-binding
term sheet for an acquisition of Magnum that would value Magnum
at 26% of Patriot on a pro forma basis for the
acquisition and to commence negotiation of definitive
transaction agreements, subject to final board approval of the
transaction.
Between January 10 and January 20, 2008, representatives of
Patriot and Magnum and their respective outside legal counsel
conducted discussions regarding the proposed non-binding term
sheet and exclusivity letter. During this period, Patriot and
Magnum agreed to proceed to negotiation of definitive agreements
in lieu of a term sheet, and Patriot instructed its outside
counsel, Davis Polk & Wardwell, to commence
preparation of draft definitive agreements for the transaction.
From mid-January 2008 until shortly before the merger agreement
was executed on April 2, 2008, Patriot, its outside
counsel, including environmental and real estate counsel, and
other advisors conducted business, legal and other due diligence
of Magnum, and Magnum and its outside counsel and other advisors
conducted business, legal and other due diligence of Patriot. In
addition, in mid-January 2008, representatives of Patriot
commenced discussions with representatives of Patriot’s
lenders under Patriot’s existing credit facility to discuss
modifications that would be necessary to the facility to permit
an acquisition of Magnum. Discussions and negotiations with
representatives of Patriot’s lenders and their counsel
continued throughout the course of the process until the consent
was obtained from the lenders on April 2, 2008, as
described below.
On January 22, 2008, representatives of Patriot met with
representatives of certain of the large Magnum stockholders to
discuss the potential merits of a combination of Patriot and
Magnum.
On January 27, 2008, Patriot provided Magnum with an
initial draft of a merger agreement for the transaction and
subsequently provided initial drafts of the ancillary
transaction agreements to Magnum. On January 29, 2008, at a
regular meeting of Patriot’s board of directors, senior
management of Patriot provided a transaction update to the board.
Between February 1, 2008 and February 3, 2008,
representatives of Patriot, Davis Polk, Magnum, Freshfields
Bruckhaus Deringer US LLP, counsel to Magnum, and a
representative of the ArcLight Funds met at the offices of Davis
Polk to conduct initial discussions regarding the draft merger
agreement and the ancillary agreements. During these
discussions, Magnum and the ArcLight Funds made it clear to
Patriot that they would not be willing to enter into a
transaction that included a condition relating to Patriot
obtaining third party financing for the transaction. Patriot
indicated, on the other hand, that it was not willing to enter
into a transaction that entailed any meaningful financing risk
without a financing condition. Therefore, the parties agreed to
explore financing arrangements that would eliminate the
financing risk.
Between February 4, 2008 and April 2, 2008,
representatives of Patriot and Magnum and their respective legal
counsel, the ArcLight Funds and Skadden, Arps, Slate,
Meagher & Flom LLP, counsel to the ArcLight Funds,
negotiated and exchanged numerous drafts of the merger agreement
and the ancillary agreements, including the voting agreement,
the support agreements and the Patriot rights plan amendment.
In January and February 2008, representatives of Patriot and
Magnum commenced discussions with Magnum’s existing lender
and various other potential lenders regarding financing
alternatives with respect to Magnum’s existing indebtedness.
On February 6, 2008, Patriot retained Duff &
Phelps as an additional financial advisor in connection with the
transaction.
On February 12, 2008, Mr. Whiting and Mr. John F.
Erhard, a representative of the ArcLight Funds, discussed the
possibility of Magnum’s existing stockholders party to the
Magnum stockholders agreement providing $100 million of
convertible debt financing to Magnum, with the proceeds being
used to repay $100 million of Magnum’s existing
indebtedness. If the merger occurred, the Magnum convertible
debt would convert into shares of Patriot common stock in the
merger. Messrs. Whiting and Erhard reached a preliminary
agreement, subject to approval by Patriot’s board of
directors, Magnum’s board of directors and the Magnum
stockholders party to the Magnum stockholders agreement, that
Magnum should explore such a convertible debt financing with the
Magnum stockholders party to the Magnum stockholders agreement,
and that if the merger occurred, the convertible debt would
convert into 2.5 million shares of Patriot common stock.
In late February, Messrs. Engelhardt and Turner conducted
discussions regarding the individuals who might be designated by
Magnum’s stockholders to join the board of directors of
Patriot upon consummation of the merger. Mr. Engelhardt
agreed that Messrs. Turner and Erhard would be submitted to
Patriot’s board of
directors for consideration as additional board members, subject
to satisfactory completion of Patriot’s evaluation process
of potential board nominees.
In connection with Patriot’s ongoing discussions with its
lenders and others regarding financing alternatives,
representatives of the ArcLight Funds proposed to Patriot in
mid-February 2008 that the ArcLight Funds would be willing to
provide a bridge financing facility to permit Patriot to repay
Magnum’s remaining existing indebtedness if an acquisition
of Magnum were to be completed. On February 26, 2008, the
ArcLight Funds provided Patriot with a draft commitment letter
and related documentation relating to a proposed
$150 million bridge financing by the ArcLight Funds. On
March 3, 2008, the ArcLight Funds provided Patriot with a
draft of an intercreditor agreement that would be required
between the ArcLight Funds and Patriot’s existing lenders
in order to permit the proposed bridge financing. Patriot, the
ArcLight Funds, Patriot’s lenders and their respective
counsel negotiated the terms of these arrangements over the
following weeks through April 2, 2008. During the course of
the negotiations regarding the terms of the bridge financing,
Patriot, Magnum and the ArcLight Funds agreed that
Patriot’s obligation to complete the merger would be
subject to a limited condition relating to the consummation of
the ArcLight financing or an alternative financing (subject to a
capped expense reimbursement to Magnum in limited circumstances
if the condition is not satisfied).
On March 7, 2008, a special meeting of Patriot’s board
of directors was held. A representative of Davis Polk reviewed
with the board its fiduciary duties in considering and
evaluating the proposed transaction. Mr. Whiting then
updated the board regarding continued discussions with Magnum
and the ArcLight Funds regarding the potential acquisition and
related financing arrangements, including the proposed Magnum
convertible debt financing and the related increase in the
Patriot common stock that would be issued in the transaction to
a total of approximately 11.9 million shares. Joseph W.
Bean, Patriot’s senior vice president, general counsel and
corporate secretary, and a representative of Davis Polk
summarized the terms of the merger agreement and the ancillary
agreements. Charles A. Ebetino, Jr., Patriot’s senior
vice president of corporate development, summarized
Magnum’s operations, the valuation analysis, the benefits
of the transaction and the due diligence findings. A
representative of Dinsmore & Shohl LLP, Patriot’s
environmental counsel, described the environmental due diligence
review and findings. Mark N. Schroeder, Patriot’s senior
vice president and chief financial officer, explained the
financing plan for the transaction. Representatives of Lehman
Brothers and Duff & Phelps each summarized their
respective valuation analyses. Representatives of
Ernst & Young LLP reported that based on the
information reviewed to date, Ernst & Young LLP was
prepared to issue an opinion to the effect that the issuance of
the Patriot common stock pursuant to the merger agreement should
not result in an acquisition of a fifty percent or greater
interest in Patriot within the meaning of
Sections 355(d)(4) and (e)(4)(A) of the Code. After
discussion, Patriot’s board of directors instructed
Patriot’s management to continue working on finalizing
definitive agreements for the acquisition and the bridge
financing and obtaining the necessary lender consents to approve
an amendment to Patriot’s existing credit facility.
During March 2008, representatives of Patriot and the ArcLight
Funds and their respective legal counsel held discussions and
negotiations with respect to the terms of the ArcLight
financing, and representatives of the ArcLight Funds and
Patriot’s existing lenders and their respective legal
counsel held discussions and negotiations with respect to the
terms of the intercreditor agreement. Representatives of Patriot
and its existing lenders and their respective legal counsel
concurrently held discussions and negotiations with respect to
the terms of an amendment to Patriot’s existing credit
facility.
Also during March 2008, representatives of Patriot, Magnum, the
ArcLight Funds and their respective counsel continued to
negotiate the terms of the merger agreement and the ancillary
agreements. During the course of these negotiations, Magnum
informed Patriot that, based on terms required by the proposed
purchasers of the Magnum convertible debt, the terms of the
proposed Magnum convertible debt had been proposed to be
modified, so that: (i) the Magnum convertible debt would,
immediately prior to the merger, be converted into shares of
Magnum common stock in accordance with a formula agreed upon by
Magnum and the proposed purchasers of the convertible debt,
(ii) the newly issued Magnum common stock would be treated
the same as the other Magnum common stock in the merger and
(iii) a total of approximately 11.9 million shares of
Patriot common stock would be issued in the merger in respect of
all of the Magnum common stock (the sum of the approximately
9.4 million shares of Patriot common stock representing 26%
of
Patriot on a pro forma basis and the 2.5 million
shares of Patriot common stock originally proposed to be issued
in respect of the Magnum convertible debt). Patriot indicated
that this change in structure would be acceptable.
On March 14, 2008, a meeting was held between
representatives of Patriot, Magnum and Patriot’s lenders
during which Patriot and the lenders discussed the Magnum
transaction and the terms of an amendment to Patriot’s
existing credit facility.
On March 25, 2008, Patriot and the ArcLight Funds agreed to
terms with respect to the ArcLight financing. On March 28,2008, representatives of Patriot and Patriot’s lenders
reached preliminary agreement on the terms of an amendment to
Patriot’s existing credit facility, and the proposed
amendment was sent to Patriot’s lenders for consideration.
On April 1, 2008, Magnum’s board of directors approved
the merger agreement and the merger and recommended that its
stockholders adopt the merger agreement.
On April 2, 2008, Patriot obtained the consent of its
existing lenders to the terms of the amendment to Patriot’s
existing credit facility to permit the transaction and the
related financing.
Also on April 2, 2008, a special meeting of Patriot’s
board of directors was held. A representative of Davis Polk
again reviewed with the board its fiduciary duties in
considering and evaluating the proposed transaction.
Mr. Whiting updated the board regarding the conclusion of
discussions relating to the merger agreement, the ArcLight
financing and the amendment to Patriot’s credit agreement.
Mr. Bean summarized for the board the principal terms of
the merger agreement and ancillary agreements. Mr. Ebetino
provided a valuation update. Mr. Schroeder described the
financing arrangements and plans. Representatives of Lehman
Brothers then presented a summary of its financial analysis of
the proposed transaction and delivered its opinion that, as of
that date, the consideration to be paid by Patriot in the merger
was fair, from a financial point of view, to Patriot.
Representatives of Duff & Phelps then presented a
summary of its financial analysis of the proposed transaction
and delivered its opinion that, as of that date, the
consideration to be paid by Patriot in the merger was fair, from
a financial point of view, to Patriot. A representative of
Ernst & Young delivered an opinion to the effect that,
as of that date, the issuance of Patriot common stock pursuant
to the merger agreement should not result in an acquisition of a
fifty percent or greater interest in Patriot within the meaning
of Sections 355(d)(4) and (e)(4)(A) of the Code. Following
further discussion and deliberations, the members of the board
unanimously approved and adopted the merger agreement and the
merger and the other transactions contemplated by the merger
agreement and resolved to recommend that the stockholders of
Patriot vote to approve the issuance of Patriot common stock
contemplated by the merger agreement.
Following approval by the Patriot board, Patriot and American
Stock Transfer & Trust Company, the rights agent
under the Patriot rights agreement, executed the rights
agreement amendment, and thereafter the relevant parties
executed the merger agreement, the ancillary agreements dated
the date of the merger agreement, the amendment to
Patriot’s existing credit facility and the commitment
letter for the ArcLight financing. Immediately following the
execution of the merger agreement, Magnum stockholders
representing approximately 99% of the issued and outstanding
common stock of Magnum approved the merger by written consent.
Shortly thereafter, Patriot issued a press release announcing
the transaction after the close of trading on the New York Stock
Exchange on April 2, 2008.
The board of directors of Patriot consulted with Patriot’s
senior management and its financial advisors and legal counsel
in reaching its decision to approve and adopt the merger
agreement and the merger and to recommend that Patriot
stockholders vote “FOR”approving the issuance
of Patriot common stock to the holders of Magnum common stock
pursuant to the merger agreement.
In reaching its decision to approve and adopt the merger
agreement and the merger, and to recommend that Patriot
stockholders vote to approve the issuance of Patriot common
stock to the holders of Magnum
common stock pursuant to the merger agreement, the board of
directors of Patriot considered a number of factors, including
the following:
•
the familiarity of the board of directors with, and
presentations by Patriot’s senior management regarding, the
business, operations, financial condition, competitive position,
business strategy, growth opportunities and prospects of Patriot
and Magnum (as well as the risks involved in achieving those
opportunities and prospects);
•
Patriot’s previously stated objectives of seeking
value-enhancing growth opportunities through synergistic,
accretive acquisitions in the Central Appalachian region;
•
the fact that Magnum’s assets and operations will increase
Patriot’s metallurgical coal position, will expand
Patriot’s thermal coal presence in the Central Appalachian
region and provide both current production and reserves for
future expansion;
•
the fact that an acquisition of Magnum is expected to be
accretive within the first year after consummation of the merger;
•
the expected synergies of the acquisition, including an expanded
resource base and infrastructure;
•
the fact that Magnum’s significant surface mining
operations will allow Patriot to have a more balanced production
mix between underground and surface mining;
•
the ability to optimize mining operations and coal sales
portfolios as a result of the acquisition;
•
the fact that Magnum maintains a strong emphasis on the safety
of its miners;
•
the risks relating to the merger described under “Risk
Factors — Risks Relating to the Merger”.
•
the risks relating to Magnum’s business, including legacy
liabilities, indebtedness, capital expenditure requirements,
environmental liabilities and the other risks described under
“Risk Factors — Risk Factors Relating to
Magnum”;
•
the financial presentation of Lehman Brothers, including the
oral and written opinion of Lehman Brothers that, as of the date
of the merger agreement and based on and subject to various
assumptions made, matters considered and limitations set forth
in the opinion, the consideration to be paid by Patriot pursuant
to the merger agreement is fair, from a financial point of view,
to Patriot;
•
the financial presentation of Duff & Phelps, including
the oral and written opinion of Duff & Phelps that, as
of the date of the merger agreement and based on and subject to
various assumptions made, matters considered and limitations set
forth in the opinion, the consideration to be paid by Patriot
pursuant to the merger agreement is fair, from a financial point
of view, to Patriot;
•
the results of financial, legal and operational due diligence on
Magnum performed by Patriot’s senior management and its
financial advisors and legal counsel;
•
the terms of the merger agreement, including the conditions to
closing and the indemnification rights available to Patriot for
breaches of representations, warranties and covenants by Magnum;
•
the terms of the merger agreement regarding the circumstances
under which Patriot may be obligated to reimburse Magnum for its
fees and expenses incurred in connection with the transaction,
up to a maximum reimbursement of $5 million;
•
the likelihood and anticipated timing of the receipt of required
regulatory approvals for the merger and the completion of the
merger;
•
the terms and conditions of the $150 million ArcLight
financing, and the potential opportunity for Patriot to obtain
alternative financing in lieu of the ArcLight financing;
•
the fact that the ArcLight Funds will hold approximately 16.9%
of Patriot common stock outstanding as of the date of the merger
agreement on a pro forma basis for the issuance in the merger
and will be Patriot’s largest stockholder; and
the terms and conditions of the voting agreement, which provides
for, among other things:
•
the Patriot board of directors to be expanded from seven to nine
and for Magnum stockholders party to the voting agreement,
acting through the stockholder representative, to receive the
right to appoint up to two members to the board of directors;
•
the agreement by certain Magnum stockholders party to the voting
agreement to vote their shares of Patriot common stock as
directed by Patriot’s board of directors in certain matters;
•
the agreement by certain Magnum stockholders party to the voting
agreement to be subject to certain “standstill”
limitations with respect to their shares of Patriot common
stock; and
•
the agreement by the Magnum stockholders party to the voting
agreement to be subject to certain transfer restrictions for up
to one year after the effective time of the merger.
The foregoing discussion of the information and factors
considered by the board of directors of Patriot is not
exhaustive. In view of the wide variety of factors, both
positive and negative, considered by the board of directors of
Patriot, the board did not consider it practical to, nor did it
attempt to, quantify, rank or otherwise seek to assign relative
weights to the specific factors that it considered in reaching
its determination that the issuance of Patriot common stock to
the holders of Magnum common stock pursuant to the merger
agreement is advisable and in the best interests of
Patriot’s stockholders. Rather, the board of directors of
Patriot viewed its determinations as being based upon the
judgment of its members, in light of the totality of the
information presented and considered, including the knowledge of
such directors of Patriot’s business, financial condition
and prospects and the advice of management and its financial
advisor and legal counsel. In considering the factors described
above, individual members of the board of directors of Patriot
may have given different weights to different factors and may
have applied different analyses to each of the material factors
considered by the Patriot board of directors.
After careful consideration, the board of directors of
Patriot has determined that the issuance of Patriot common stock
issuable to the holders of Magnum common stock pursuant to the
merger agreement is advisable and in the best interests of
Patriot stockholders and recommends that Patriot stockholders
vote “FOR” approving the issuance of Patriot common
stock issuable to the holders of Magnum common stock pursuant to
the merger agreement.
In entering into the merger agreement, Magnum considered a
number of factors, including the following:
•
the fact that the merger was supported by Magnum stockholders
owning more than 98.5% of the issued and outstanding shares of
Magnum common stock, by virtue of such stockholders entering
into support agreements concurrently with the execution and
delivery of the merger agreement;
•
the aggregate amount of Patriot common stock to be received by
Magnum stockholders in the merger;
•
Magnum’s ongoing capital needs and its potential need for
additional financing in the current credit environment;
•
the fact that the merger consideration is payable in Patriot
common stock, providing Magnum stockholders the opportunity to
participate in the long-term appreciation of the combined
Patriot-Magnum entity;
•
the fact that the Patriot common stock to be issued to the
Magnum stockholders in the merger will be registered on
Form S-4
and will be (subject to the contractual
lock-up
agreements discussed under “Ancillary Transaction
Agreements — Voting Agreement — Transfer
Restrictions”) able to be sold without restriction on
the New York Stock Exchange by Magnum stockholders who are
non-affiliates of Patriot, and the fact that Patriot’s
market capitalization and the trading volume would provide
Magnum stockholders with the liquidity necessary to sell their
Patriot common stock to be received in the merger, if desired;
the strategic fit between Patriot and Magnum, including the
expected commercial and operational synergies, enhancements to
the combined company’s product line, a more diverse mining
operation and a broader customer base;
•
the terms and conditions of the merger agreement and related
transaction documents that Magnum is a party to, including the
limited circumstances in which the board of directors of Patriot
is permitted to modify or withdraw its recommendation of the
transaction, and the merger agreement expense reimbursement
obligations upon certain termination events;
•
the likelihood that the merger will be consummated on a timely
basis, including the likelihood that the merger will receive all
necessary regulatory approvals;
•
the anticipated tax-free nature of the transaction to
Magnum’s stockholders with respect to the receipt of
Patriot common stock;
•
the results of financial, legal and operational due diligence on
Patriot;
•
the possible alternatives to the merger (including potential
business combinations and strategic alliances with other
companies or remaining an independent company) and the likely
value to Magnum stockholders in such alternatives;
•
the lack of a “collar” related to Patriot common stock
to be issued in the merger, thereby not providing any guarantee
of the value of Patriot common stock to be received by Magnum
stockholders in the merger;
•
the fact that, subject to certain limitations, consummation of
the merger would be subject to the consummation of the ArcLight
financing or the receipt by Patriot of financing from an
alternate source in an amount not less than the amount of the
ArcLight financing;
•
the risk that the benefits sought to be achieved in the merger
will not be realized;
•
the fact that Patriot was recently spun-off from Peabody and has
operated as an independent company only for a short period of
time;
•
the lack of a long-term trading history of the Patriot common
stock, and the volatility of the price of Patriot common stock
since it commenced trading in the fourth quarter of 2007, and
the likelihood that the Patriot stock price would continue, both
before and after the completion of the merger, to be volatile;
•
the risk that the merger might not be consummated and the
potential adverse effect of the public announcement of the
merger on Magnum’s business reputation and ability to
obtain financing in the future;
•
the inherent challenges in combining the business of Magnum and
Patriot and the attendant risk that management resources may be
diverted from other strategic opportunities and operational
matters for the period of time required to consummate the
merger; and
•
the other risks connected with the merger and with the business
of Patriot described in the sections captioned “Risk
Factors” in this proxy statement/prospectus.
The preceding discussion is not intended to be exhaustive, but
includes all the material factors considered by Magnum in
determining to enter into the merger agreement. In view of the
variety of factors considered in connection with its evaluation
of the merger agreement and the proposed merger, Magnum did not
quantify or otherwise attempt to assign relative weights to the
specific factors considered.
During November 2007, Patriot management engaged Lehman Brothers
to act as a financial advisor with respect to the proposed
acquisition of Magnum and to render to Patriot a fairness
opinion in this regard. On April 2, 2008, Lehman Brothers
delivered its oral opinion (subsequently confirmed in writing)
to the Patriot
board of directors that, as of such date and, based upon and
subject to the matters stated in its opinion, from a financial
point of view, the consideration to be paid by Patriot in the
merger is fair to Patriot.
The full text of Lehman Brothers’ written opinion, dated
April 2, 2008, is attached as Annex C to this
document. Stockholders are encouraged to read Lehman
Brothers’ opinion carefully in its entirety for a
description of the assumptions made, procedures followed,
factors considered and limitations upon the review undertaken by
Lehman Brothers in rendering its opinion. Lehman Brothers’
opinion is not intended to be and does not constitute a
recommendation to any stockholder as to how that stockholder
should vote or act with respect to the proposed merger or any
other matters described in this document. The following is a
summary of Lehman Brothers’ opinion and the methodology
that Lehman Brothers used to render its opinion. This summary is
qualified in its entirety by reference to the full text of the
opinion. Lehman Brothers was requested by the board of directors
of Patriot to render its opinion with respect to the fairness,
from a financial point of view, to Patriot of the consideration
to be paid by Patriot in the merger.
Lehman Brothers was not requested to opine as to, and its
opinion does not in any manner address, Patriot’s
underlying business decision to proceed with or effect the
merger. In addition, Lehman Brothers expressed no opinion on,
and its opinion does not in any manner address, the fairness of
the amount or the nature of any compensation to any officers,
directors or employees of any parties to the merger agreement,
or any class of such persons, relative to the consideration paid
in the merger or otherwise. In arriving at its opinion, Lehman
Brothers reviewed and analyzed, among other things:
•
the draft merger agreement dated March 25, 2008 and the
specific terms of the proposed transaction;
•
publicly available information concerning Patriot and Magnum
that Lehman Brothers believed to be relevant to its analysis,
including, without limitation, the Annual Report on
Form 10-K
for the year ended December 31, 2007 for Patriot;
•
financial and operating information with respect to the
business, operations and prospects of Magnum furnished to Lehman
Brothers by Magnum and Patriot, including (i) financial
projections of Magnum prepared by management of Magnum and
(ii) financial projections of Magnum prepared by management
of Patriot;
•
financial and operating information with respect to the
business, operations and prospects of Patriot furnished to
Lehman Brothers by Patriot, including (i) financial
projections of Patriot prepared by management of Patriot and
(ii) the amount and timing of the cost savings and
operating synergies expected by the management of Patriot to
result from the proposed transaction (the “Expected
Synergies”);
•
a comparison of the historical financial results and present
financial condition of Patriot and Magnum with each other and
with those of other companies that Lehman Brothers deemed
relevant;
•
a comparison of the financial terms of the proposed transaction
with the financial terms of certain other transactions that
Lehman Brothers deemed relevant;
•
the potential pro forma impact of the proposed transaction on
the current financial condition and future financial performance
of Patriot, including the Expected Synergies; and
•
estimates of certain proved and probable reserves of Magnum
conducted by third party reserve engineers dated
February 29, 2008 (the “Reserve Report”).
In addition, Lehman Brothers had discussions with the
managements of Patriot and Magnum concerning their respective
businesses, operations, assets, liabilities, financial condition
and prospects and the potential strategic benefits expected by
the management of Patriot to result from the combination of the
businesses of Patriot and Magnum. Furthermore, Lehman Brothers
also undertook such other studies, analyses and investigations
as it deemed appropriate.
In arriving at its opinion, Lehman Brothers assumed and relied
upon the accuracy and completeness of the financial and other
information provided by Patriot without any independent
verification of such
information. Lehman Brothers further relied upon the assurances
of the management of Patriot that they were not aware of any
facts or circumstances that would make such information
inaccurate or misleading. With respect to Patriot’s
projections of Magnum’s financial and operating
performance, Lehman Brothers assumed that such projections were
reasonably prepared on a basis reflecting the best currently
available estimates and judgments of the management of Patriot
as to the future financial performance of Magnum and that Magnum
would perform substantially in accordance with such projections.
With respect to the financial projections of Patriot, upon
advice of Patriot, Lehman Brothers has assumed that such
projections have been reasonably prepared on a basis reflecting
the best currently available estimates and judgments of the
management of Patriot as to the future financial performance of
Patriot and that Patriot will perform substantially in
accordance with such projections. With respect to the Expected
Synergies, Lehman Brothers assumed that the amount and timing of
the Expected Synergies are reasonable and, upon the advice of
Patriot, Lehman Brothers has also assumed that the Expected
Synergies will be realized substantially in accordance with such
estimates. With respect to the Reserve Report, Lehman Brothers
discussed the Reserve Report with the management of Patriot and
upon advice of Patriot, Lehman Brothers assumed that the Reserve
Report was a reasonable basis upon which to evaluate the proved
and probable reserve levels of Magnum as of such date. Upon
advice of Patriot, Lehman Brothers assumed that the final terms
of the definitive Merger Agreement did not differ in any
material respects from the draft thereof furnished to and
reviewed by Lehman Brothers. In arriving at its opinion, Lehman
Brothers did not conduct a physical inspection of the properties
and facilities of Magnum and did not make or obtain any
evaluations or appraisals of the assets or liabilities of
Magnum. Lehman Brothers’ opinion necessarily is based upon
market, economic and other conditions as they existed on, and
could be evaluated as of, April 2, 2008.
Lehman Brothers is an internationally recognized investment
banking firm and, as part of its investment banking activities,
is regularly engaged in the valuation of businesses and their
securities in connection with mergers and acquisitions,
negotiated underwritings, competitive bids, secondary
distributions of listed and unlisted securities, private
placements and valuations for corporate and other purposes.
Patriot’s management and board of directors selected Lehman
Brothers because of its expertise, reputation and familiarity
with Patriot and the coal industry generally, and because its
investment banking professionals have substantial experience in
transactions comparable to the merger.
The following is a summary of the material financial analyses
used by Lehman Brothers in connection with providing its opinion
to Patriot’s board of directors. The financial analyses
summarized below include information presented in tabular
format. In order to fully understand the financial analyses used
by Lehman Brothers, the tables must be read together with the
text of each summary. Considering any portion of such analyses
and of the factors considered, without considering all analyses
and factors, could create a misleading or incomplete view of the
process underlying Lehman Brothers’ opinion.
Comparable
Company Analysis
In order to assess how the public market values shares of
similar companies which are publicly traded, Lehman Brothers,
based on its experience with companies in the coal industry,
reviewed and compared specific financial and operating data
relating to Magnum with coal companies that Lehman Brothers
deemed comparable to Magnum, including:
These companies were designated either Tier I or
Tier II comparables based on how closely their operating
characteristics matched those of Magnum, with Tier I
comparables deemed those companies whose operations were most
comparable to Magnum’s.
As part of its selected comparable company analysis, Lehman
Brothers calculated and analyzed each company’s ratio of
enterprise value to estimated earnings before interest, taxes,
depreciation and amortization, or EBITDA. The enterprise value
of each company was obtained by adding its short and long-term
debt to the sum of the market value of its common equity, the
value of any preferred stock (at liquidation value) and the book
value of any minority interest, and subtracting its cash and
cash equivalents. For the comparable companies, these
calculations were performed based on publicly available
financial data (including Wall Street consensus estimates per
the Institutional Broker Estimate System, or “IBES,”
database) using closing prices as of March 31, 2008, the
last practicable trading date for which information was
available prior to the delivery of Lehman Brothers’
opinion. To calculate Magnum’s implied enterprise value,
Lehman Brothers applied a range of multiples based on the
trading values of the comparable companies to Magnum’s
relevant EBITDA. The following table sets forth information
relating to this analysis:
Lehman Brothers selected the comparable companies above because
their businesses and operating profiles are reasonably similar
to those of Magnum. However, because of the inherent differences
between the business, operations and prospects of Magnum and the
businesses, operations and prospects of the selected comparable
companies, no company is exactly comparable to Magnum.
Therefore, Lehman Brothers believed that it was inappropriate
to, and therefore did not, rely solely on the quantitative
results of the comparable company analysis. Accordingly, Lehman
Brothers also made qualitative judgments concerning differences
between the financial and operating characteristics and
prospects of Magnum and the companies included in the comparable
company analysis that would affect the public trading values of
each in order to provide a context in which to consider the
results of the quantitative analysis. These qualitative
judgments related primarily to the differing sizes, growth
prospects, profitability levels and degree of operational risk
between Magnum and the companies included in the comparable
company analysis. Lehman Brothers’ qualitative judgments
resulted in the selection of a set of firms that most closely
matched the financial and operating characteristics of Magnum
used in determining the appropriate reference range for the
implied enterprise value of Magnum. Lehman Brothers also felt
that it was most appropriate to only consider the 2008 and 2009
calendar years. The reference range for the implied enterprise
value of Magnum was calculated by Lehman Brothers by reference
to these companies. Based on this analysis, Lehman Brothers
derived a reference range for the implied enterprise value of
Magnum of approximately $827 million to $1,328 million.
Comparable
Transaction Analysis
Using publicly available information, Lehman Brothers reviewed
and compared the purchase prices and financial multiples paid in
seven acquisitions or strategic mergers of companies that Lehman
Brothers, based on its experience with merger and acquisition
transactions, deemed relevant to arriving at its opinion. Lehman
Brothers chose the transactions used in the comparable
transaction analysis based on the similarity of the
target companies in the transactions to Magnum in terms of size,
location, operating profile and other characteristics of their
businesses. Lehman Brothers referenced the following
transactions:
• CONSOL Energy Inc.’s acquisition of AMVEST
Corporation;
• Cleveland — Cliffs Inc.’s
acquisition of PinnOak Resources LLC;
• Natural Resource Partners, L.P.’s acquisition
of Dingesss-Rum Properties, Inc.;
• Alpha Natural Resources, Inc.’s acquisition of
Nicewonder Coal Group;
• James River Coal Co.’s acquisition of Triad
Mining;
• Consortium led by First Reserve’s acquisition
of RAG American Coal Holding; and
• Peabody Energy Corporation’s acquisition of RAG
Australia Coal Pty Limited.
The ratio of enterprise value to trailing twelve month EBITDA
(or estimate thereof) in the transactions listed above ranged
from 3.6x to 7.5x with an average ratio of 5.3x. The reasons for
and the circumstances surrounding each of the selected precedent
transactions analyzed were diverse and there are inherent
differences in the business, operations, financial conditions
and prospects of Magnum and the companies included in the
selected precedent transaction analyses. Accordingly, Lehman
Brothers believed that a purely quantitative selected precedent
transaction analysis would not be particularly meaningful in the
context of considering the proposed transaction. Lehman Brothers
therefore made qualitative judgments concerning differences
between the characteristics of the selected precedent
transactions and the proposed transaction which would affect the
acquisition values of the selected target companies and Magnum.
Based upon these judgments, Lehman Brothers selected a range of
multiples of 5.0x to 6.5x calendar year 2007 EBITDA and applied
such range to Magnum’s EBITDA for the relevant period to
calculate a range of implied range of enterprise values for
Magnum. Lehman Brothers noted that on the basis of the selected
precedent transaction analysis, Magnum had an implied enterprise
value range of $207 million to $269 million. However,
because of recent changes in the expected profitability of coal
companies in the regions in which Magnum operates, and as a
result of certain operational difficulties of Magnum experienced
in 2007 that are estimated by Patriot management to be
non-recurring in nature, Lehman Brothers determined that
historical EBITDA does not reflect predicted future performance
and that forward-looking multiples and other valuation
methodologies are more relevant.
Magnum
Discounted Cash Flow Analysis
In order to estimate the present value of Magnum’s expected
cash flows, Lehman Brothers performed a discounted cash flow
analysis. A discounted cash flow analysis is a traditional
valuation methodology used to derive the valuation of an asset
by calculating the “present value” of estimated future
cash flows. “Present value” refers to the current
value of future cash flows and is obtained by discounting those
future cash flows by a discount rate that takes into account
macroeconomic assumptions and estimates of risk, the opportunity
cost of capital, expected returns and other appropriate factors.
To calculate the estimated enterprise value of Magnum using the
discounted cash flow method, Lehman Brothers added
(i) Magnum’s projected after-tax unlevered free cash
flows for fiscal years 2008 through 2012 based on management
projections to (ii) the “terminal value” of
Magnum as of December 31, 2012, and discounted such amount
to its present value using a range of selected discount rates.
The after-tax unlevered free cash flows were calculated by
taking the tax-affected earnings before interest, tax expense
and amortization (excluding amortization of contracts or
purchased intangibles) and subtracting, estimated taxes and
capital expenditures and adjusting for changes in working
capital. The residual value of Magnum at the end of the forecast
period, or “terminal value,” was estimated by
selecting a range of terminal value multiples based on 2012
projections. The range of after-tax discount rates of 12% to 14%
was selected based on an analysis of the weighted average cost
of capital of Magnum and the comparable companies and was
consistent with commonly used discount rates in the coal sector.
Lehman Brothers then calculated a range of implied enterprise
values of Magnum, both with and without the estimated synergies.
Lehman Brothers noted that on
the basis of the discounted cash flow analysis, the standalone
value for Magnum was $1,056 million to $1,474 million
excluding synergies, and several hundred million more including
synergies.
Relative
Valuation
Contribution
Analysis
In order to evaluate the fairness of the pro forma equity split
(based on the 11,901,729 new Patriot common shares issued as
consideration) between Patriot and Magnum stockholders
respectively, Lehman Brothers performed a relative contribution
analysis. This analysis assessed the relative contribution of
each party with regard to several key operational and financial
metrics including proven and probable reserves owned or leased,
tons of coal sold, and historical and forecast EBITDA. The
relative value of each contribution was based on the multiples
of each metric implied by Patriot’s enterprise and equity
values on March 31, 2008. The relative contribution of each
party was then adjusted by each party’s respective
estimated pro forma net debt to calculate relative equity
contributions. Based on the contribution analysis, the implied
range of Magnum pro forma equity ownership in Patriot was
approximately 24% to 43% based on the items identified below,
versus an actual pro forma equity ownership of Magnum
stockholders of approximately 31%.
Patriot Equity
Magnum Equity
Relative Equity Contribution Based on:
Contribution
Contribution
Proven and Probable Coal Reserves
72
%
28
%
Tons of Coal Sold
57
%
43
%
2007 EBITDA
76
%
24
%
2006-2007
Average EBITDA(1)
72
%
28
%
2005-2007
Average EBITDA(1)
71
%
29
%
2008 Estimated EBITDA
59
%
41
%
(1)
Historical EBITDA is pro forma for the acquisition of the Magnum
acquired properties and adjusted for any unusual items.
General
In connection with the review of the merger by Patriot’s
board of directors, Lehman Brothers performed a variety of
financial and comparative analyses for purposes of rendering its
opinion. The preparation of a fairness opinion is a complex
process and is not necessarily susceptible to partial analysis
or summary description. In arriving at its opinion, Lehman
Brothers considered the results of all of its analyses as a
whole and did not attribute any particular weight to any
analysis or factor considered by it. Furthermore, Lehman
Brothers believes that the summary provided and the analyses
described above must be considered as a whole and that selecting
any portion of its analyses, without considering all of them,
would create an incomplete view of the process underlying its
analyses and opinion. In addition, Lehman Brothers may have
given various analyses and factors more or less weight than
other analyses and factors and may have deemed various
assumptions more or less probable than other assumptions, so
that the ranges of valuations resulting from any particular
analysis described above should not be taken to be Lehman
Brothers’ view of the actual value of Patriot or Magnum.
The issuance of Lehman Brothers opinion was approved by Lehman
Brothers’ fairness opinion committee.
In performing its analyses, Lehman Brothers made numerous
assumptions with respect to industry risks associated with
operations, reserves, industry performance, general business and
economic conditions and other matters, many of which are beyond
the control of Patriot or Magnum. Any estimates contained in
Lehman Brothers’ analyses are not necessarily indicative of
future results or actual values, which may be significantly more
or less favorable than those suggested by such estimates. The
analyses performed were prepared solely as part of Lehman
Brothers’ analysis of the fairness from a financial point
of view to Patriot of the merger and were prepared in connection
with the written opinion by Lehman Brothers delivered on
April 2, 2008 to the Patriot board of directors. The
analyses do not purport to be appraisals or to reflect the
prices at which Patriot common stock might trade following
announcement of the mergers or the prices at which Patriot
common stock might trade following consummation of the merger.
The terms of the merger were determined through
arm’s-length negotiations between Patriot and Magnum and
were unanimously approved by Patriot and Magnum’s
respective boards of directors. Lehman Brothers did not
recommend any specific exchange ratio or form of consideration
to Patriot or that any specific exchange ratio or form of
consideration constituted the only appropriate consideration for
the merger.
Lehman Brothers’ opinion was one of the many factors taken
into consideration by Patriot’s board of directors in
making its determination to approve the merger agreement. Lehman
Brothers’ analyses summarized above should not be viewed as
determinative of the opinion of the Patriot board of directors
with respect to the value of Magnum or of whether the Patriot
board of directors would have been willing to agree to a
different amount or form of merger consideration.
Lehman Brothers is acting as financial advisor to Patriot in
connection with the merger. As compensation for its services in
connection with the proposed transaction, Patriot owed Lehman
Brothers $500,000 upon the delivery of Lehman Brothers’
opinion and $500,000 at the time the merger agreement was
executed. Additional compensation of up to $3 million is
payable at the closing of the merger. In addition, Patriot has
agreed to reimburse a portion of Lehman Brothers’ expenses
and indemnify Lehman Brothers for certain liabilities that may
arise out of Lehman Brothers’ engagement. Lehman Brothers
has performed various investment banking and financial services
for Patriot, Magnum and the ArcLight Funds in the past, and
expects to perform such services in the future. Lehman Brothers
has received, and expects to receive in the future, customary
fees for such services. Specifically, in the past two years,
Lehman Brothers has performed the following investment banking
and financial services: (i) acting as a lender under
Patriot’s $500 million credit facility and
(ii) acting as a lender and the lead arranger for
Magnum’s $260 million credit facility. In addition,
Lehman Brothers continues to act as administrative agent for
Magnum’s existing credit facility and receive customary
fees in connection therewith. Lehman Brothers also has provided
and continues to provide various investment banking services to
ArcLight Capital Partners, an affiliate of the ArcLight Funds.
In the ordinary course of its business, Lehman Brothers may
actively trade in the debt or equity securities and loans of
Patriot and the loans of Magnum for its own account and for the
accounts of its customers and, accordingly, may at any time hold
a long or short position in such securities or loans. In
addition, Neuberger Berman, an affiliate of Lehman Brothers,
owns approximately 5.4% of the outstanding stock of Patriot. See
“Security Ownership of Certain Beneficial Owners and
Management of Magnum.”
As described above, Lehman Brothers’ opinion to
Patriot’s board of directors was one of many factors taken
into consideration by Patriot’s board of directors in
making its determination to approve the mergers. The foregoing
summary does not purport to be a complete description of the
analyses performed by Lehman Brothers in connection with its
fairness opinion and is qualified in its entirety by reference
to the written opinion of Lehman Brothers attached as
Annex C to this proxy statement/prospectus.
Patriot engaged Duff & Phelps, LLC to render an
opinion to Patriot’s board of directors as to the fairness,
from a financial point of view, to Patriot, of the consideration
to be paid by Patriot in the merger. Patriot selected
Duff & Phelps because Duff & Phelps is a
leading independent financial advisory firm, offering a broad
range of valuation, investment banking and consulting services,
including fairness and solvency opinions, mergers and
acquisitions advisory, mergers and acquisitions due diligence
services, financial reporting and tax valuation, fixed asset and
real estate consulting, ESOP and ERISA advisory services, legal
business solutions, and dispute consulting. Duff &
Phelps is regularly engaged in the valuation of businesses and
securities and the preparation of fairness opinions in
connection with mergers, acquisitions and other strategic
transactions.
On April 2, 2008, Duff & Phelps rendered its oral
opinion to the Patriot board of directors, which was
subsequently confirmed in a written opinion, that, subject to
the limitations, exceptions, assumptions and
qualifications set forth therein, as of April 2, 2008, the
proposed consideration to be paid by Patriot in the merger
pursuant to the merger agreement was fair, from a financial
point of view, to Patriot.
The full text of the written opinion of Duff & Phelps,
which sets forth, among other things, assumptions made,
procedures followed, matters considered and qualifications and
limitations of the review undertaken in rendering the opinion,
is attached as Annex D to this proxy statement/prospectus.
Stockholders are urged to read the opinion carefully and in its
entirety.
The Duff & Phelps opinion is directed to the Patriot
board of directors and addresses only the fairness to Patriot,
from a financial point of view, of the consideration to be paid
by Patriot in the merger. The Duff & Phelps opinion is
not a recommendation as to how the board of directors, any
stockholder or any other person or entity should vote or act
with respect to any matters relating to the merger. Further, the
Duff & Phelps opinion does not in any manner address
Patriot’s underlying business decision to engage in the
merger or the relative merits of the merger as compared to any
alternative business transaction or strategy. The decision as to
whether to approve the merger or any related transaction may
depend on an assessment of factors unrelated to the financial
analysis on which the Duff & Phelps opinion is based.
Based upon the aggregate merger consideration of up to
11,901,729 shares of Patriot common stock and an assumed
value of Patriot’s common stock of approximately $46.97 per
share, which was the closing price of Patriot’s common
stock on March 31, 2008, Duff & Phelps noted that
the aggregate merger consideration implied a total equity value
of Magnum of approximately $559 million.
The following is a summary of the material analyses performed by
Duff & Phelps in connection with rendering its
opinion. Duff & Phelps noted that the basis and
methodology for the opinion have been designed specifically for
this purpose and may not translate to any other purposes. While
this summary describes the analysis and factors that
Duff & Phelps deemed material in its presentation and
opinion to Patriot’s board of directors, it does not
purport to be a comprehensive description of all analyses and
factors considered by Duff & Phelps. The opinion is
based on the comprehensive consideration of the various analyses
performed. This summary is qualified in its entirety by
reference to the full text of the opinion.
In arriving at its opinion, Duff & Phelps did not
attribute any particular weight to any particular analysis or
factor considered by it, but rather made qualitative judgments
as to the significance and relevance of each analysis and
factor. Several analytical methodologies were employed by
Duff & Phelps in its analyses, and no one single
method of analysis should be regarded as critical to the overall
conclusion reached by Duff & Phelps. Each analytical
technique has inherent strengths and weaknesses, and the nature
of the available information may further affect the value of
particular techniques. Accordingly, Duff & Phelps
believes that its analyses must be considered as a whole and
that selecting portions of its analyses and of the factors
considered by it, without considering all analyses and factors
in their entirety, could create a misleading or incomplete view
of the evaluation process underlying its opinion. The conclusion
reached by Duff & Phelps, therefore, is based on the
application of Duff & Phelps’ own experience and
judgment to all analyses and factors considered by
Duff & Phelps, taken as a whole.
In connection with preparing the opinion, Duff &
Phelps made such reviews, analyses and inquiries as
Duff & Phelps deemed necessary and appropriate under
the circumstances, including, but not limited to, the following:
•
A review of the following documents:
•
Certain publicly available financial statements and other
business and financial information of Patriot and the industries
in which it operates;
•
Certain internal financial statements and other financial and
operating data concerning Patriot and Magnum, respectively,
including, without limitation, that which Patriot and Magnum
have respectively identified as being the most current financial
statements available;
•
Certain financial forecasts, as well as information relating to
certain strategic, financial and operational benefits
anticipated from the merger, prepared by the management of
Patriot;
A discussion of the operations, financial conditions, future
prospects and projected operations and performance of Patriot
and Magnum with the management of Patriot, and a discussion of
the merger with the management of Patriot;
•
A review of the historical trading price and trading volume of
Patriot’s common stock and the publicly traded securities
of certain other companies that Duff & Phelps deemed
relevant;
•
A comparison of the financial performance of Patriot and Magnum
with that of certain other publicly traded companies that
Duff & Phelps deemed relevant;
•
A comparison of certain financial terms of the merger to
financial terms, to the extent publicly available, of certain
business combination transactions that Duff & Phelps
deemed relevant; and
•
An undertaking of such other analyses and consideration of such
other factors as Duff & Phelps deemed appropriate.
In its review and analysis, and in arriving at its opinion,
Duff & Phelps, with Patriot’s consent:
•
Relied upon the accuracy, completeness, and fair presentation of
all information, data and representations obtained from public
sources or provided to it from private sources, including
Patriot’s management, and did not independently verify such
information;
•
Assumed that any estimates, evaluations, forecasts and
projections (financial or otherwise) (including, without
limitation, as to the strategic, financial and operational
benefits anticipated from the merger, which we refer to as the
strategic benefits, and including, without limitation, as to
projections by Patriot’s management and industry sources as
to future coal prices) furnished to Duff & Phelps were
reasonably prepared and based upon the best currently available
information and good faith judgment of the person furnishing the
same, and Duff & Phelps has further assumed that the
strategic benefits will be realized at the times and in the
amounts projected by Patriot;
•
Assumed that the final versions of all documents reviewed by
Duff & Phelps in draft form conform in all material
respects to the drafts reviewed;
•
Assumed that information supplied to Duff & Phelps and
representations and warranties made in the merger agreement are
accurate in all material respects and that each party will
perform in all material respects all covenants and agreements
required to be performed by such party;
•
Assumed that all of the conditions required to implement the
merger will be satisfied and that the merger will be completed
in accordance with the merger agreement without any material
amendments thereto or any waivers of any terms or conditions
thereof;
•
Assumed that all governmental, regulatory or other consents and
approvals necessary for the consummation of the merger will be
obtained without any adverse effect on Patriot or the
contemplated benefits expected to be derived in the merger;
•
Assumed and relied upon, without verification, the accuracy and
adequacy of the legal advice given by counsel to Patriot on all
legal maters with respect to the merger;
•
Assumed all procedures required by law to be taken in connection
with the merger have been or will be taken duly, validly and
timely taken and that the merger will be consummated in a manner
that complies in all respects with the applicable provisions of
the Securities Act of 1933, as amended, the Securities Act of
1934, as amended, and all other applicable statutes, rules and
regulations;
•
Assumed that the merger will be treated as a tax-free
transaction for United States federal income tax purposes;
Relied upon, without independent verification, representations
by Patriot’s management and third-party estimates as to the
expenses and annual cash costs of certain liabilities of Patriot
and Magnum associated with (i) reclamation of mines,
(ii) health care benefits for past and present work force,
(iii) workers’ compensation claims for compensable
work-related injuries and occupational disease, and
(iv) federally mandated benefits for occupational disease
(collectively, the “Legacy
Liabilities”); and
•
Assumed that there would be no material change in regulations
governing the production of coal, regulations that would
restrict key users of coal (i.e., coal-fired power plants, etc.)
from utilizing coal as an input, or regulations that would
materially increase the expected cash obligations related to
Legacy Liabilities.
In its analysis and in connection with the preparation of its
opinion, Duff & Phelps made numerous assumptions with
respect to industry performance, general business, market and
economic conditions and other matters, many of which are beyond
the control of any party involved in the merger. To the extent
that any of the foregoing assumptions or any of the facts on
which the Duff & Phelps opinion is based proves to be
untrue in any material respect, Duff & Phelps has
advised Patriot’s board of directors that the
Duff & Phelps opinion cannot and should not be relied
upon. Duff & Phelps noted that neither Patriot’s
board of directors nor Patriot’s management placed any
limitation upon Duff & Phelps with respect to the
procedures followed or factors considered by Duff &
Phelps in rendering its opinion.
Duff & Phelps did not make any independent evaluation,
appraisal or physical inspection of Patriot’s solvency or
of any specific assets or liabilities (contingent or otherwise).
Duff & Phelps has not made, and assumes no
responsibility to make, any representation, or render any
opinion, as to any legal matter. The Duff & Phelps
opinion should not be construed as a valuation opinion, credit
rating, solvency opinion, an analysis of Patriot’s or
Magnum’s creditworthiness or otherwise as tax advice or as
accounting advice.
Duff & Phelps was not requested to and did not provide
advice concerning the structure, the specific amount of the
aggregate merger consideration or any other aspects of the
merger, or services other than the delivery of its opinion.
Duff & Phelps was not authorized to and did not
solicit any expressions of interest from any other parties with
respect to the merger, the assets, businesses or operations of
Patriot, or any alternative transaction. Duff & Phelps
did not participate in negotiations with respect to the terms of
the merger and related transactions. Consequently,
Duff & Phelps assumed that such terms are the most
beneficial terms from Patriot’s perspective that could
under the circumstances have been negotiated among the parties
to such transactions, and Duff & Phelps expressed no
opinion as to whether any alternative transaction might result
in terms and conditions more favorable to Patriot or
Patriot’s stockholders than those contemplated by the
merger agreement.
Duff & Phelps issued its opinion as of April 2,2008. The opinion was necessarily based upon market, economic,
financial and other conditions as they existed and could be
evaluated as of such date, and Duff & Phelps disclaims
any undertaking or obligation to advise any person of any change
in any fact or matter affecting its opinion coming or brought to
the attention of Duff & Phelps after the date of the
Duff & Phelps opinion or otherwise to update, revise
or reaffirm its opinion.
Summary
of Financial Analyses by Duff & Phelps
As part of its analysis to determine whether the merger
consideration to be paid by Patriot pursuant to the merger
agreement was fair, from a financial point of view, to Patriot,
Duff & Phelps took into consideration whether the
merger consideration to be paid by Patriot was not greater than
the fair market value of all of Magnum’s common stock by
estimating the fair market equity value of Magnum.
The following is a summary of the material financial analyses
used by Duff & Phelps in connection with providing its
opinion to Patriot’s board of directors. The financial
analyses summarized below include information presented in
tabular format. In order to fully understand the financial
analyses used by Duff & Phelps, the tables must be
read together with the text of each summary. The tables alone do
not constitute a complete description of the financial analyses.
Rather, the analyses listed in the tables and described below
must be considered as a whole; considering any portion of such
analyses and of the factors considered,
without considering all analyses and factors, could create a
misleading or incomplete view of the process underlying
Duff & Phelps’ opinion.
Discounted
Cash Flow Analysis
A discounted cash flow analysis is a traditional valuation
methodology used to derive a valuation of an asset by
calculating the “present value” of estimated future
cash flows of the asset. “Present value” refers to the
current value of future cash flows or amounts and is obtained by
discounting those future cash flows or amounts by a discount
rate that takes into account macro-economic assumptions and
estimates of risk, the opportunity cost of capital, expected
returns and other appropriate factors.
Duff & Phelps performed a discounted cash flow
analysis by adding (1) the present value of projected
“free cash flows” for Magnum for the fiscal years 2008
through 2017 to (2) the present value of the “terminal
value” for Magnum as of 2017. “Free cash flow” is
defined as cash that is available to either reinvest or to
distribute to securityholders and “terminal value”
refers to the value of all future cash flows from an asset at a
particular point in time. The projected free cash flows that
Duff & Phelps used in its analysis were based on
financial forecasts and estimates prepared by the management of
Magnum, as adjusted by Patriot’s management.
Duff & Phelps calculated a terminal value for Magnum
by capitalizing the expected cash flows after the projection
period based on long-term expected annual growth rates ranging
from 0.0% to 1.0%. Duff & Phelps discounted the
projected free cash flows and the terminal value for Magnum by
rates ranging from 12% to 13%.
The discounted cash flow analyses indicated a range of adjusted
enterprise values (enterprise value plus Legacy Liabilities
(“Adjusted Enterprise Value”)) for Magnum of
$1.64 billion to $1.87 billion and a range of equity
values for Magnum of $810 million to $1.04 billion.
Selected
Public Companies Analysis
Duff & Phelps compared certain financial information
and valuation ratios of Magnum to corresponding data and ratios
from eight publicly traded companies, including four publicly
traded companies focusing their operations in the eastern United
States and Appalachian region, including Alpha Natural
Resources, International Coal Group, Inc., James River Coal Co.
and Massey Energy Co. (the “East Region Group”
or “Tier I”). In addition to the East
Region Group, Duff & Phelps also considered four
additional publicly traded coal companies including Arch Coal
Inc., Consol Energy Inc., Foundation Coal Holdings Inc., and
Peabody Energy Corp. (“Tier II”).
Duff & Phelps used publicly available historical
financial data and Wall Street research estimates as reported by
Reuters. This analysis produced multiples of selected valuation
data which Duff & Phelps utilized to estimate the
value of Magnum and to compare to multiples for Magnum derived
from the implied value to be paid in the merger.
Duff & Phelps analyzed projected earnings before
interest, taxes, depreciation, amortization and asset retirement
obligations expense (“ARO”)
(“EBITDA”) and adjusted EBITDA for each of the
publicly traded companies. For purposes of the Duff &
Phelps analysis, “Adjusted EBITDA” is defined as
EBITDA, prior to expenses related to Legacy Liabilities.
Duff & Phelps then analyzed the peer group’s
trading multiples of enterprise value and Adjusted Enterprise
Value to their respective projected EBITDA and Adjusted EBITDA
figures. Duff & Phelps also considered multiples of
Adjusted Enterprise Value to coal reserves and equity to
earnings.
Selected Public Company Multiples as of March 31,2008:
VALUATION
MULTIPLES
Adj. EV /
Adj. EV /
Adj. EV /
EV / 2008
EV / 2009
2008 Adj.
2009 Adj.
Coal Reserves
Price / 2008
EBITDA
EBITDA
EBITDA
EBITDA
(mm tons)
EPS
East Region — Tier I
Low
7.1
x
4.8
x
7.3
x
5.3
x
1.47
x
18.5
x
High
9.9
x
6.6
x
9.9
x
6.5
x
5.54
x
31.3
x
Mean
8.7
x
5.9
x
8.8
x
6.0
x
2.84
x
24.9
x
Median
8.9
x
6.0
x
9.0
x
6.1
x
2.17
x
24.9
x
Tier II
Low
8.2
x
6.3
x
9.0
x
7.1
x
1.97
x
18.3
x
High
12.9
x
9.3
x
13.0
x
9.5
x
3.82
x
36.2
x
Mean
10.7
x
7.8
x
11.2
x
8.3
x
2.71
x
26.3
x
Median
10.9
x
7.7
x
11.4
x
8.3
x
2.52
x
25.5
x
Aggregate Group
Low
7.1
x
4.8
x
7.3
x
5.3
x
1.47
x
18.3
x
High
12.9
x
9.3
x
13.0
x
9.5
x
5.54
x
36.2
x
Mean
9.7
x
6.8
x
10.0
x
7.2
x
2.77
x
25.9
x
Median
9.4
x
6.5
x
9.6
x
6.8
x
2.43
x
25.5
x
Source: Bloomberg, Capital IQ, Reuters, SEC filings
Duff & Phelps selected valuation multiples of various
financial metrics for Magnum based on the historical and
projected financial performance of Magnum as compared to the
selected public companies in order to produce a range of
Adjusted Enterprise Values for Magnum. In particular,
Duff & Phelps noted that Magnum was considered to be
most similar to the East Region public companies and should be
valued as such.
Duff & Phelps’ assessment of the ranges of
Adjusted Enterprise Values implied by its selection of valuation
multiples of Magnums 2008 and 2009 projected Adjusted EBITDA
indicated a range of Adjusted Enterprise Values for Magnum of
$1.37 billion to $1.66 billion and a range of equity
values from $540 million to $830 million.
None of the public companies utilized in the foregoing analysis
are, of course, identical to Magnum. Accordingly, a complete
valuation analysis cannot be limited to a quantitative review of
the selected companies and involves complex considerations and
judgments concerning differences in financial and operating
characteristics of such companies, as well as other factors that
could affect their value relative to that of Magnum.
Selected
M&A Transactions Analysis
Duff & Phelps compared Magnum to target companies
involved in merger and acquisition transactions.
Duff & Phelps selected twenty-three transactions for
purposes of its analysis. Duff & Phelps noted that it
did not derive a valuation estimate from the selected M&A
transaction analysis, but rather, the implied valuation
multiples for the targets in these transactions were considered
to check the reasonableness of Duff & Phelps’
selected multiples as part of the selected public company
analysis and the values implied by the discounted cash flow
analysis, described above. The selected M&A transactions
exhibited enterprise value to revenue multiples ranging from
0.73x to 7.39x with a mean of 2.78x and enterprise value to
EBITDA multiples ranging 4.3x to 18.4x with a mean of 5.8x.
70 million tons of coal reserves from Quadrant Corp.
Natural Resource Partners, LP
20 million tons of coal reserves from National Resources, Inc.
Natural Resource Partners, LP
49 million tons of coal reserves currently leased to Cline mining
Mechel Open Joint Stock Company
Moscow Coke and Gas Plant OAO (Moskoks)
Peabody Energy Corp.
Excel Coal Ltd.
Evergreen Energy, Inc., f/k/a KFx, Inc.
Buckeye Industrial Mining Company, Inc.
CEZ AS
Severoceske Doly AS
Alpha Natural Resources, Inc.
Nicewonder Contracting, Inc.
Penn Virginia Resource Partners, LP
Kentucky Emerald Land Co. — Certain coal reserves and
assets
Penn Virginia Resource Partners, LP
Coal Property in West Virginia
International Coal Group, Inc.
Anker Coal Group, Inc.
James River Coal Co.
Triad Mining, Inc.
Centennial Coal Co., Ltd.
Austral Coal Ltd.
Kiewit Mining Group, Inc.
Triton Coal Company, Buckskin Mine
Peabody Energy Corp.
RAG Australia Coal Pty Limited (from RAG Coal International AG)
Peabody Energy Corp.
RAG “Colorado properties” (from RAG Coal International
AG)
First Reserve Corporation, Blackstone Group, etc.
Foundation Coal Holdings, Inc.
Source: Capital IQ, Inc.
Contribution
Analysis
Duff & Phelps analyzed the expected contribution
percentages of each of Magnum and Patriot to the post-merger
combined equity value as implied by the enterprise value
(implied by the capitalization of several financial performance
metrics) of each of Magnum and Patriot less their respective net
debt. Financial metrics used to calculate implied equity value
contribution included projected EBITDA, projected EBITDA less
capital expenditures, projected coal tons sold, and proven and
probable coal reserves for the periods described below. These
expected contributions were based on, for Magnum, internal
historical performance for the year ended December 31, 2007
and internal financial projections for the calendar years ending
December 31, 2008 through 2012 as prepared by Magnum
management and adjusted by Patriot management. These expected
contributions were also based on Patriot’s historical
performance for the year ended December 31, 2007 and
internal financial projections for the calendar years ending
December 31, 2008 through 2012 as prepared by Patriot
management. The analysis did not take into consideration any
possible synergies that a combined Patriot and Magnum entity may
realize following the consummation of the merger.
Duff & Phelps noted that the merger would result in
pro forma ownership of the combined Patriot and Magnum entity of
approximately 69% for Patriot common stockholders. Based on the
contribution analysis, the implied range of Magnum
pro forma equity ownership in Patriot was approximately 24%
to 49%.
Summary
of Analyses
The range of equity values for Magnum that Duff &
Phelps derived from its discounted cash flow analysis was
$810 million to $1.04 billion, and the range of equity
values for Magnum that Duff & Phelps derived from its
selected public company analysis was $540 million to
$830 million. Duff & Phelps noted that the
$559 million aggregate consideration to be paid by Patriot
(as implied by the merger) to acquire Magnum was near the low
end of the range of equity value indications from
Duff & Phelps’ selected public company analysis
and below the range of equity value indications from
Duff & Phelps’ discounted cash flow analysis.
Duff & Phelps’ opinion and financial analyses
were only one of the many factors considered by Patriot’s
board of directors in its evaluation of the merger and should
not be viewed as determinative of the views of Patriot’s
board of directors.
Fees
and Expenses
The Duff & Phelps engagement letter with Patriot,
dated February 6, 2008, provides that, for its services,
Duff & Phelps is entitled to receive from Patriot a
fee of $600,000, which is due and payable as follows: $300,000
non-refundable retainer upon execution of the engagement letter
and $300,000 upon Duff & Phelps informing Patriot that
they are prepared to deliver their opinion. The engagement
letter also provides that Duff & Phelps will be paid
additional fees at its standard hourly rates for any time
incurred should Duff & Phelps be called upon to
support its findings subsequent to the delivery of the opinion.
In addition, Patriot has agreed to reimburse Duff &
Phelps for its reasonable out-of-pocket expenses and to
indemnify Duff & Phelps and certain related persons
against liabilities arising out of Duff & Phelps’
service as a financial advisor to Patriot’s board of
directors.
Other than the preparation of the opinion in connection with the
merger, during the two years preceding the date of such opinion,
Duff & Phelps has not had any material relationship
with any party to the merger for which compensation has been
received or is intended to be received, nor is any such material
relationship or related compensation mutually understood to be
contemplated, provided, however, it was noted that
Duff & Phelps provided a solvency opinion to the board
of directors of Peabody Energy Corporation related to the
October 31, 2007 spin-off of Patriot. Duff &
Phelps may provide valuation and financial advisory services to
Patriot or Patriot’s board of directors (or any committee
thereof) in the future.
Patriot’s officers and directors own Patriot common stock
and have been granted certain equity-based incentive awards,
none of which will vest or be adjusted or otherwise changed as a
result of the merger. Except for the interests inherent in the
ownership of Patriot common stock and these equity awards,
Patriot’s officers and directors do not have any material
interests that arise as a result of the merger.
Magnum’s
Officers, Directors and Affiliates
Magnum’s directors and executive officers may have
interests in the merger that differ from, or are in addition to,
their interests as holders of Magnum common stock.
Stock and
Convertible Note Ownership of Directors and Officers
As of the date of this proxy statement/prospectus, the members
of the board of directors of Magnum (and entities affiliated
with such board members and officers of Magnum) and the
executive officers of Magnum owned the following amounts of
Magnum common stock and Magnum convertible notes (which notes
are convertible into shares of Magnum common stock under certain
circumstances, including immediately prior to the consummation
of the merger, based upon the terms described in
“Certain Relationships and Related
Party Transactions of Magnum — Magnum Convertible
Notes”), shown together with the number of shares of
Patriot common stock to be received upon consummation of the
merger:
Total Amount of
Conversion of the Magnum Convertible Notes(1)
Common Stock of
Amount of
Principal
Magnum Post
Patriot Common
Amount of
Conversion of
Stock to Be
Magnum
Conversion
the Magnum
Received upon
Amount of Magnum
Convertible
Shares
Convertible
the Effective
Name
Common Stock Owned
Notes Owned
in Magnum
Notes
Time(2)
Board of Directors
Dan Revers(3)
27,144,002 (52.79
%)
$
63,214,596
8,690,427
35,834,429
6,544,345
Robb Turner(4)
27,144,002 (52.79
%)
$
63,214,596
8,690,427
35,834,429
6,544,345
Phil Messina(5)
27,144,002 (52.79
%)
$
63,214,596
8,690,427
35,834,429
6,544,345
Allyson Tucker(6)
0
$
0
0
0
0
Paul Vining
463,887 (0.90
%)
$
154,000
21,171
485,058
88,585
Larry Altenbaumer
12,000 (0.02
%)
$
0
0
12,000
2,192
All Directors (aggregate)
27,619,889 (53.71
%)
$
63,368,596
8,711,598
36,331,487
6,635,121
Officers
David Turnbull
111,112
20,000
2,750
113,862
20,794
Richard Verheij
191,750
25,000
3,437
195,187
35,646
Robert Bennett
209,975
0
0
209,975
38,347
Dwayne Francisco
335,629
0
0
335,629
61,295
Keith St. Clair
241,335
0
0
241,335
44,074
All Officers (aggregate)(6)
1,089,801 (2.12
%)
$
45,000
6,186
1,095,987
200,156
(1)
The conversion of the Magnum convertible notes assumes: (i) that
the volume-weighted average price of Patriot common stock during
the ten trading days immediately preceding the effective time of
the merger will not be below approximately $41 per share,
which would result in a conversion price of $7.50 per share of
Magnum common stock, and (ii) the closing of the merger on
July 15, 2008, which would result in the conversion of
111 days of accrued and unpaid interest on the Magnum
convertible notes, in addition to principal.
(2)
Assuming 11,901,729 shares of Patriot common stock are
issued to Magnum stockholders in the merger.
(3)
Mr. Revers is a managing director and member of ArcLight
Capital Holdings, LLC. 27,144,002 shares indicated as owned
by Mr. Revers are included because of Mr. Rever’s
affiliation with the ArcLight Funds. Mr. Revers disclaims
beneficial ownership of all shares owned by the ArcLight Funds
and neither the filing of this document nor any of its contents
shall be deemed to constitute an admission by Mr. Revers
that he is the beneficial owner of any of the securities
referred to herein for purposes of Section 13(d) of the
Securities Exchange Act of 1934, as amended, or for any other
purpose. Mr. Revers’ address is c/o ArcLight Capital
Partners, LLC, 200 Clarendon Street, 55th Floor, Boston, MA02117.
(4)
Mr. Turner is senior partner and member of ArcLight Capital
Holdings, LLC. 27,144,002 shares indicated as owned by
Mr. Turner are included because of Mr. Turner’s
affiliation with the ArcLight Funds. Mr. Turner disclaims
beneficial ownership of all shares owned by the ArcLight Funds
and neither the filing of this document nor any of its contents
shall be deemed to constitute an admission by Mr. Turner
that he is the beneficial owner of any of the securities
referred to herein for purposes of Section 13(d) of the
Securities Exchange Act of 1934, as amended, or for any other
purpose. Mr. Turner’s address is
c/o ArcLight
Capital Partners, LLC, 200 Clarendon Street, 55th Floor, Boston,
MA02117.
(5)
Mr. Messina is a principal of ArcLight Capital Holdings,
LLC. 27,144,002 shares indicated as owned by
Mr. Messina are included because of Mr. Messina’s
affiliation with the ArcLight Funds. Mr. Messina disclaims
beneficial ownership of all shares owned by the ArcLight Funds
and neither the filing of this document nor any of its contents
shall be deemed to constitute an admission by Mr. Messina
that he is the beneficial owner of any of the securities
referred to herein for purposes of Section 13(d) of the
Securities Exchange Act of 1934, as amended, or for any other
purpose. Mr. Messina’s address is
c/o ArcLight
Capital Partners, LLC, 200 Clarendon Street, 55th Floor, Boston,
MA02117.
In accordance with the terms of Magnum’s stock incentive
plan, all shares of Magnum common stock that have been awarded
in the form of restricted stock and have not vested (or are
subject to risk of forfeiture or other restrictions), will vest
in full and will, at the effective time of the merger, be
cancelled and converted into the right to receive a portion of
the 11,901,729 shares of Patriot common stock to be issued
as merger consideration on the same terms as the other
outstanding shares of Magnum common stock. On April 5,2006, Magnum awarded approximately 2.3 million shares of
restricted stock to its officers and employees. The restricted
stock awards generally vest in three years with one-third of the
shares vesting on each anniversary date of the award. As of the
date of this proxy statement/prospectus, members of the board of
directors of Magnum and officers of Magnum owned in the
aggregate 962,394 shares of unvested restricted stock that
will vest at the effective time of the merger. See
“Security Ownership of Certain Beneficial Owners and
Management of Magnum” for details of ownership of
restricted stock, including unvested restricted stock, by
certain executive officers of Magnum.
Magnum
Convertible Notes
On March 26, 2008, Magnum and certain of its stockholders
party to the Magnum stockholders agreement entered into a note
purchase agreement pursuant to which Magnum issued
$100 million in aggregate principal amount of senior
subordinated convertible notes due 2013. The principal amount of
the convertible notes, together with all unpaid principal and
accrued and unpaid interest thereon, will convert into Magnum
common stock immediately prior to the effective time of the
merger at a conversion price per share equal to the lesser of
(1) $7.50 and (2) (x) the positive difference of the
“Magnum Value” (as defined below) minus the
then unpaid principal of the convertible notes and all accrued
and unpaid interest thereon (calculated immediately prior to the
effective time of the merger), divided by (y) the
number of shares of Magnum common stock issued and outstanding
immediately prior to the effective time of the merger not
including those issuable on conversion of the Magnum convertible
notes (with the term “Magnum Value” meaning the
aggregate number of shares of Patriot common stock to be issued
to the holders of Magnum common stock in the merger (including
those issuable on conversion of the Magnum convertible notes)
multiplied by the volume weighted average price of the
Patriot common stock on the New York Stock Exchange for the ten
trading days immediately preceding the effective time of the
merger based on trading data as reported on Bloomberg Financial
Services, Inc.). Assuming that the merger closes on
July 15, 2008, which would result in the conversion of
111 days of accrued and unpaid interest on the Magnum
convertible notes in addition to principal, and assuming that
the volume-weighted average price of Patriot common stock during
the ten trading days immediately preceding the effective time of
the merger will not be below approximately $41 per share, which
would result in a conversion price of $7.50 per share, the
aggregate of all convertible notes would convert into
approximately 13.7 million shares of Magnum common stock
(representing approximately 21.1% of Magnum’s common stock
outstanding after such conversion, assuming
51,421,999 shares of Magnum common stock were issued and
outstanding (the amount issued and outstanding as of the date of
this proxy statement/prospectus) immediately before such
conversion). In addition, if the merger does not occur, the
convertible notes may be converted into Magnum stock under
certain other circumstances, including among others, an initial
public offering of Magnum or the occurrence of a change of
control with respect to Magnum.
Post-Closing
Patriot Board of Directors
Pursuant to the terms of the voting agreement, and subject to
the provisions thereof, following consummation of the merger,
Robb E. Turner and John F. Erhard will join the Patriot board of
directors. Mr. Turner is the Senior Partner and an owner
of, and Mr. Erhard is a Principal of, ArcLight Capital
Partners, LLC, an affiliate of the ArcLight Funds.
Directors
and Officers Indemnification and Insurance
Pursuant to the merger agreement, for a period of 6 years
following the closing of the merger, Patriot has agreed to
refrain from amending the provisions in Magnum’s charter
documents in a manner that would
diminish the indemnification rights of the officers and
directors of Magnum. In addition, prior to the closing of the
merger, Magnum will purchase a “tail” extension of its
existing directors’ and officers’ insurance policies
and its existing fiduciary liability insurance policies, for
acts or omissions occurring prior to the effective time of the
merger and for a claims reporting or discovery period of at
least six years from and after the effective time of the merger
(with terms, conditions, retentions and limits of liability that
are at least as favorable as Magnum’s existing policies).
Without the consent of Patriot, Magnum will not spend more than
$350,000 for such tail extension. If Magnum fails to acquire
such tail extension prior to the closing of the merger, Patriot
has agreed to use its commercially reasonably efforts to obtain
and maintain such a policy.
Severance
Payments
The following officers of Magnum are entitled to a severance
payment equal to two times their respective annual base salary
in the event of a termination following a change in control of
Magnum: Paul Vining, Richard Verheij, Keith St. Clair, David
Turnbull, Robert Bennett and Dwayne Francisco.
Employment
Agreement
On May 8, 2008, Patriot entered into an employment
agreement with Paul Vining under which Mr. Vining will
serve as Patriot’s President and Chief Operating Officer,
subject to the consummation of the merger. The employment
agreement will become effective only if the effective date of
the merger occurs on or before the later of September 30,2008, or such later date to which the end date is extended by
mutual agreement of the parties to the merger agreement.
Under his employment agreement, Mr. Vining will have an
initial employment term of three years, after which his
employment will be “at will” unless both parties elect
to extend the term. Mr. Vining’s employment agreement
provides for an annual base salary of $600,000. The employment
agreement also provides for an annual performance-based cash
bonus with a target amount of 100% of base salary (with a
maximum of no less than 175% of base salary), based on
achievement of performance targets established by the
compensation committee of Patriot. Mr. Vining will be
eligible to receive an annual bonus for calendar year 2008 as if
he had been employed by Patriot since January 1, 2008.
Mr. Vining’s employment agreement provides that
Mr. Vining will be granted a long-term incentive award on
the closing date of the merger with a value that is at least
equal to $3.9 million and will consist of stock options and
restricted stock units. In addition, Mr. Vining will
receive annual equity-based compensation incentive compensation
awards with a value at least equal to 200% of his base salary.
Mr. Vining’s annual long term incentive award for
calendar year 2008 will be made in the form of restricted stock
and will be granted on the closing date of the merger. Upon the
termination of Mr. Vining’s employment due to death or
disability, or upon the occurrence of a change in control (as
defined in the applicable equity-based plan or award) all
outstanding long term incentive awards and any other
equity-based awards granted to him by Patriot, other than any
performance units, which will be governed by the applicable plan
or award, will become immediately and fully vested. Under the
employment agreement, Patriot will pay to Mr. Vining a
retention award equal to $1 million, one-half of which will
be paid on the first anniversary of the date
Mr. Vining’s employment with Patriot commences,
provided that he remains employed by Patriot on such date, and
the remainder of which shall be paid on the second anniversary
of his commencement date, provided that he remains employed by
Patriot on such date.
The employment agreement provides that if Mr. Vining’s
employment is terminated for cause or he resigns without good
reason, the compensation due to him will only include accrued
but unpaid salary and bonus, incurred but not yet reimbursed
business expenses and payment of accrued and vested benefits and
unused vacation time. If his employment is terminated due to
death or disability, he will be entitled to receive accrued but
unpaid salary and bonus, incurred but not yet reimbursed
business expenses and payment of accrued and vested benefits and
unused vacation time and a pro-rated bonus for the year of
termination.
The employment agreement provides further that, if
Mr. Vining’s employment is terminated prior to the
third anniversary of his commencement date by Patriot without
cause or by Mr. Vining for good reason, Mr. Vining
will be entitled to an amount equal to two times his base
salary, plus an additional amount equal to two times the greater
of his target annual bonus for the calendar year of termination
or the annual average of
his actual annual bonus awards for the three calendar years
preceding the date of termination (or, if he has not been
employed by Patriot for three full calendar years, for the two
or one-year period, as applicable, for which he has been
employed and received an annual bonus), plus an additional
amount equal to two times six percent of his base salary. In
addition, if Mr. Vining’s employment is terminated by
Patriot without cause or by him for good reason and the
termination constitutes a “separation from service”
(as defined under Section 409A of the Code),
Mr. Vining will be entitled to a prorated bonus for the
calendar year of termination, calculated as the annual bonus
that he would have received in such year based on actual
performance. Patriot will also continue to provide
Mr. Vining life insurance, group health coverage,
accidental death and dismemberment coverage and a health care
flexible spending account for a period of two years following
his termination; provided that any such coverage will terminate
to the extent Mr. Vining is offered or obtains comparable
benefits from another employer.
The employment agreement also provides that to the extent that
excise taxes are incurred by Mr. Vining as a result of
“excess parachute payments” as defined by IRS
regulations, Patriot will pay additional amounts to him so that
he will be in the same financial position as if the excise taxes
were not incurred. The employment agreement contains standard
provisions concerning confidentiality, non-competition and
non-solicitation.
Under Mr. Vining’s employment agreement, “good
reason” is defined as (i) a reduction in his base
salary; (ii) a material reduction in the aggregate program
of employee benefits and perquisites to which he is entitled
(other than a reduction that generally affects all executives);
(iii) a material decline in his annual bonus or long term
incentive award opportunities (other than a decline that
generally affects all executives); (iv) relocation of his
primary office by more than 50 miles from the location of
his primary office in Charleston, West Virginia or secondary
office in Saint Louis, Missouri; or (v) any material
diminution or material adverse change in his title, duties,
responsibilities or reporting relationships.
Under Mr. Vining’s employment agreement,
“cause” is defined as (i) any material and
uncorrected breach by him of the terms of his employment
agreement, (ii) any willful fraud or dishonesty of his
involving the property or business of Patriot, (iii) a
deliberate or willful refusal or failure of his to comply with
any major corporate policy of Patriot which is communicated to
him in writing, or (iv) his conviction of, or plea of
nolo contendere to, any felony if such conviction or plea
results in his imprisonment; provided that, with respect to
clauses (i), (ii) and (iii) above, he will have thirty
(30) days following his receipt of written notice of the
conduct that is the basis for the potential termination for
cause within which to cure the conduct. In the event that
Mr. Vining is terminated for failure to meet performance
goals, as determined by the Patriot board of directors, such
termination shall be considered a termination for cause for all
purposes relating to his equity-based compensation awards, but
it will be considered a termination without cause for purposes
of his right to receive the severance benefits described above.
ArcLight
Financing
In connection with the execution of the merger agreement,
Patriot and the ArcLight Funds entered into a bridge facility
commitment letter, dated as of April 2, 2008, pursuant to
which the ArcLight Funds had agreed to provide Patriot with up
to $150 million of subordinated financing at the closing of
the merger, to be used to repay certain existing senior secured
indebtedness of Magnum and related fees and expenses. As
consideration for the commitment of the ArcLight Funds under the
commitment letter, Patriot and the ArcLight Funds entered into a
fee letter pursuant to which Patriot agreed to reimburse the
ArcLight Funds for certain expenses and to pay the ArcLight
Funds an upfront fee in an amount equal to $1.5 million
(paid on April 2, 2008), a commitment fee equal to the
greater of $3.0 million and 3% of the aggregate principal
amount drawn under the ArcLight financing (payable on the
drawdown date) and a ticking fee equal to 0.25% per annum on the
principal amount of the ArcLight financing for the period from
June 30, 2008 through the earliest of
(i) September 30, 2008, (ii) the drawdown date
under the ArcLight financing and (iii) termination of the
commitment to provide the ArcLight financing (payable in arrears
on the earliest to occur of the foregoing), with payment of the
ticking fee to offset (on a dollar-for-dollar basis), any
commitment fee described above. On May 30, 2008, Patriot
terminated the bridge facility commitment letter. Patriot paid
an aggregate of
$1.5 million in commitment fees to the ArcLight Funds in
connection with the financing commitment prior to its
termination.
Registration
Rights
Patriot has agreed to provide the ArcLight Funds with customary
registration rights with respect to the shares of Patriot common
stock issuable to the ArcLight Funds in the merger pursuant to a
registration rights agreement to be entered into at the
effective time of the merger. The ArcLight Funds are entitled to
three demand, and unlimited piggy-back, registration rights
under the agreement.
Royalty
Assignment to an Affiliate of the ArcLight Funds
RoyaltyCo, LLC, an affiliate of the ArcLight Funds, is entitled
to certain royalty proceeds from Magnum and its subsidiaries.
See “Certain Relationships and Related Party
Transactions of Magnum — Royalty Assignment to Major
Stockholders.”
Based on the number of shares of Patriot common stock
outstanding on the record date, we anticipate that the holders
of Magnum common stock, including holders of Magnum convertible
notes that will be converted into Magnum common stock
immediately prior to the merger, will own approximately 31% of
the outstanding shares of Patriot common stock outstanding as of
the date of the merger agreement on a pro forma basis for the
issuance in the merger.
The merger will become effective at such time as a certificate
of merger is filed with the Secretary of State of the State of
Delaware or at such later time as is agreed upon by Patriot and
Magnum and specified in the certificate of merger. The filing of
the certificate of merger will occur three business days after
satisfaction or waiver of the conditions to the completion of
the merger described in the merger agreement, or on such other
date as Patriot and Magnum mutually agree.
It is a condition to the completion of the merger that the
shares of Patriot common stock issuable to Magnum stockholders
in the merger have been approved for listing on the New York
Stock Exchange, subject to official notice of issuance.
The following is a discussion of the material United States
federal income tax consequences of the merger to Magnum
stockholders who receive the merger consideration in exchange
for their shares of Magnum common stock pursuant to the merger
and to Patriot stockholders. This discussion is based on the
Code, applicable Treasury regulations, and administrative
interpretations and court decisions as in effect as of the date
hereof, all of which are subject to change, possibly with
retroactive effect.
This discussion addresses only the consequences of the merger to
Magnum stockholders who hold their respective shares as capital
assets. It does not address all aspects of United States federal
income taxation that may be important to a stockholder in light
of that stockholder’s particular circumstances or to a
stockholder subject to special rules, such as:
a stockholder who holds Magnum common stock as part of a hedge,
appreciated financial position, straddle, or conversion or
integrated transaction; or
•
a stockholder who acquired Magnum common stock pursuant to the
exercise of compensatory options or otherwise as compensation.
If a partnership holds the Magnum common stock, the tax
treatment of a partner will generally depend upon the status of
the partner and the activities of the partnership.
This discussion of material United States federal income tax
consequences is not a complete analysis or description of all
potential tax consequences of the merger. This discussion does
not address income tax consequences that may vary with, or are
contingent on, individual circumstances. In addition, it does
not address any non-income tax or any foreign, state or local
tax consequences of the merger. Magnum stockholders should
consult their tax advisors regarding the foreign, United States
federal, state or local tax consequences of the merger.
Consequences
of the Merger to Patriot Stockholders
The merger will not result in any tax consequences to holders of
Patriot common stock. Patriot stockholders will continue to hold
their shares of Patriot common stock.
Consequences
of the Merger to Magnum Stockholders
For purposes of this discussion, a “United States
Holder”is a beneficial owner of Magnum common stock
that is for United States federal income tax purposes:
•
a citizen or resident of the United States;
•
a corporation, or other entity taxable as a corporation for
United States federal income tax purposes, created or organized
in or under the laws of the United States or of any political
subdivision thereof; or
•
an estate or trust the income of which is subject to United
States federal income taxation regardless of its source.
The merger has been structured and is intended to qualify as a
reorganization under Section 368(a) of the Code. Neither
Magnum nor Patriot has sought an opinion of counsel that the
merger will be treated as a reorganization within the meaning of
Section 368(a) or intends to request a ruling from the IRS
as to the United States federal income tax consequences of the
merger. Consequently, no assurance can be given that the IRS
will not assert, or that a court would not sustain, a position
contrary to any of those set forth below. It is assumed for
purposes of the remainder of this discussion that the merger
will qualify as a reorganization within the meaning of the Code.
Based upon this assumption, upon the exchange of Magnum common
stock for Patriot common stock, a United States Holder will
generally not recognize gain or loss except as described below
in “Cash in Lieu of Fractional Shares.”
Tax Basis and Holding Period. A United States
Holder’s aggregate tax basis in the shares of Patriot
common stock received in the merger, including any fractional
shares deemed received by the United States Holder as described
below, will equal its aggregate adjusted tax basis in the Magnum
common stock surrendered in the merger. The holding period for
the shares of Patriot common stock received in the merger,
including fractional shares, will include the holding period for
the shares of Magnum common stock surrendered in the merger.
Cash in Lieu of Fractional Shares. A United
States Holder who receives cash in lieu of fractional shares of
Patriot common stock will be treated as having received the
fractional shares of Patriot common stock pursuant to the merger
and then as having exchanged the fractional shares of Patriot
common stock for cash in a redemption by Patriot. A United
States Holder generally will recognize capital gain or loss
equal to the difference between the amount of cash received and
the portion of its aggregate basis in its Patriot common stock
received in the merger that is allocable, on a pro rata basis,
to its fractional shares. This capital gain or
loss generally will be long-term capital gain or loss if, as of
the effective date of the merger, the holding period for the
shares is greater than one year. The deductibility of capital
losses is subject to limitations.
Information
Reporting and Backup Withholding
Information returns will be filed with the IRS in connection
with cash paid and stock delivered pursuant to the merger.
Backup withholding may apply to payments made in connection with
the merger. Backup withholding will not apply, however, to a
stockholder who (1) furnishes a correct taxpayer
identification number and certifies that he or she is not
subject to backup withholding on the substitute
Form W-9
or successor form included in the letter of transmittal to be
delivered to stockholders following completion of the merger,
(2) provides a certification of foreign status on the
applicable
Form W-8
(typically
Form W-8BEN)
or appropriate successor form or (3) is otherwise exempt
from backup withholding. Any amount withheld under the backup
withholding rules will be allowed as a refund or a credit
against United States federal income tax liability, provided the
required information is furnished to the IRS. The IRS may impose
a penalty upon any taxpayer that fails to provide the correct
taxpayer identification number.
United States Antitrust. Under the HSR Act and
related rules, certain transactions, including the merger, may
not be completed until notifications have been given and
information furnished to the Antitrust Division of the
Department of Justice and the Federal Trade Commission and the
specified waiting period requirements have been satisfied.
Patriot and Magnum filed notification and report forms with the
Antitrust Division of the Department of Justice and the Federal
Trade Commission on April 30, 2008 in respect of the
acquisition of Magnum by Patriot. In addition, each of the
ArcLight Funds and the parent of Cascade Investment, L.L.C.,
similarly filed notification and report forms on April 30,2008 in respect of the acquisition by such Magnum stockholders
of Patriot common stock in the merger. On May 12, 2008, the
Federal Trade Commission granted early termination of the
HSR Act waiting period relating to the filings by each of
Patriot, Magnum, the ArcLight Funds and the parent of Cascade
Investment, L.L.C.
At any time before or after the effective time of the merger,
the Federal Trade Commission or others (including states and
private parties) could take action under the antitrust laws,
including seeking to prevent the merger, to rescind the merger
or to conditionally approve the merger upon the divestiture of
assets of Patriot or Magnum. There can be no assurance that a
challenge to the merger on antitrust grounds will not be made
or, if such a challenge is made, that it will not be successful.
General. Subject to the terms and conditions
of the merger agreement, Patriot and Magnum have agreed to use
their respective commercially reasonable efforts to take all
actions and to do all things necessary, proper or advisable
under applicable law to consummate the transactions contemplated
by the merger agreement, including preparing and making all
filings and notices with any applicable governmental authority
or third party in connection with the merger and obtaining all
approvals, consents and other confirmations required to be
obtained from any governmental authority or third party that are
necessary, proper or advisable to consummate the transactions
contemplated by the merger agreement. Neither Patriot nor Magnum
is required to enter into any settlement or agreement with any
governmental authority or to divest or hold separate any of its
businesses, assets or properties.
ArcLight
Financing; Issuance of Patriot Convertible Notes
In connection with the merger agreement, Patriot obtained a
subordinated bridge financing commitment of up to
$150 million from the ArcLight Funds to, at Patriot’s
election, provide Patriot with up to a $150 million
subordinated bridge loan facility to be used by Patriot at the
effective time of the merger to repay a portion of the senior
secured indebtedness of Magnum and to pay related fees and
expenses.
Under the merger agreement, Patriot may amend, modify or
terminate the commitment letter relating to the ArcLight
financing so long as (a) such action would not reasonably
be expected to delay or prevent the
consummation of the merger (subject to the terms of the merger
agreement) or (b) in the case of a termination of the
commitment letter relating to the ArcLight financing, Patriot
has previously entered into binding alternate financing
documents. On May 28, 2008, Patriot completed a private
offering of $200 million in aggregate principal amount of
3.25% Convertible Senior Notes due 2013, which we refer to
as the Patriot convertible notes. Following the consummation of
the offering of the Patriot convertible notes, Patriot
terminated the ArcLight Funds’ financing commitment on
May 30, 2008. Patriot paid an aggregate of
$1.5 million in commitment fees to the ArcLight Funds in
connection with the financing commitment. As a result of the
consummation of the offering of the Patriot convertible notes,
the closing condition relating to Patriot’s consummation of
the ArcLight financing or an alternate financing has been
satisfied.
The Patriot convertible notes are convertible at the option of
the holders (subject to certain conditions to conversion during
the period from May 28, 2008 to February 15,2013) into a combination of cash and shares of
Patriot’s common stock, unless Patriot elects to deliver
cash in lieu of the common stock portion. The number of shares
of Patriot’s common stock that it may deliver on conversion
will depend upon the price of its common stock during a
20-day
observation period related to the convertible notes, but will
increase as the common stock price increases above the
conversion price of $135.34 per share of common stock for each
day during the observation period. For example, if the stock
price is $200.00 for each day during the observation period, the
number of shares deliverable would be 477,782 shares.
However, the maximum number of shares that Patriot may deliver
is 1,477,780 shares, which represents approximately 3.8% of
the sum of (x) the number of outstanding shares of Patriot
common stock as of May 19, 2008, being
26,755,877 shares and (y) the number of shares of
Patriot common stock to be issued in the merger. The number of
shares of Patriot’s common stock deliverable on conversion,
however, is subject to adjustments for events having a dilutive
effect on the value of Patriot common stock, which may increase
the number of shares issuable upon conversion, including such
maximum amount. In addition, if certain fundamental changes
occur in respect of Patriot, the number of shares of Patriot
common stock deliverable on conversion will increase up to a
maximum amount of 2,068,894 shares (also subject to
adjustment for certain dilutive events).
For more information about the Patriot convertible notes, see
“Management’s Discussion and Analysis of Financial
Condition and Results of Operations of Patriot —
Liquidity and Capital Resources — Patriot Convertible
Debt Offering.”
The outstanding senior secured indebtedness of Magnum (other
than capital leases) at the effective time of the merger will be
repaid (or defeased, in the case of certain letters of credit)
with proceeds from the offering of Patriot convertible notes
and/or
unrestricted cash or cash equivalents of Magnum.
Patriot
Credit Agreement Amendments
In connection with Patriot’s entry into the merger
agreement and the commitment of the ArcLight Funds to provide
the ArcLight financing, Patriot entered into an amendment dated
as of April 2, 2008, to the Patriot Credit Agreement which
amends the Patriot Credit Agreement to, among other things,
(1) permit the merger and the transactions contemplated by
or in connection with the merger agreement, (2) increase
the rates of interest applicable to loans thereunder and
(3) modify certain covenants and related definitions to
allow for changes in permitted indebtedness, permitted liens,
permitted capital expenditures and other changes in respect of
Patriot and its subsidiaries in connection with the merger
(including, without limitation, the consent by the senior
lenders to the terms and conditions of the ArcLight financing
and certain terms and conditions of certain alternate
financings). We refer to this amendment to the Patriot Credit
Agreement as the first amendment to the Patriot Credit Agreement.
In connection with the offering of the Patriot convertible
notes, Patriot entered into an amendment dated as of
May 19, 2008, to the Patriot Credit Agreement to, among
other things, (i) clarify the intentions of Patriot and the
lenders party to the Credit Agreement with respect to certain
provisions of the first amendment to the Patriot Credit
Agreement, (ii) permit the offering of the Patriot
convertible notes prior to the closing of the merger and
(iii) modify certain covenants and definitions to
accommodate the issuance of permanent indebtedness and the
Patriot convertible notes. We refer to this amendment to the
Patriot Credit Agreement as the second amendment to the Patriot
Credit Agreement.
The first amendment to the Patriot Credit Agreement will be void
and cease to be effective if, without the consent of the
administrative agent acting on behalf of the required lenders,
certain conditions occur, including among others, the following:
the merger agreement is amended or modified in any manner that
is materially adverse to the interests of the lenders under the
Patriot Credit Agreement;
•
any representation, warranty or covenant in the merger agreement
is breached, unless Patriot certifies that such breach does not
give Patriot a right not to consummate the merger, whether or
not Patriot exercises or waives such right;
•
cash paid by Patriot to repay existing indebtedness of Magnum in
connection with the consummation of the merger is obtained from
sources other than the ArcLight financing or an alternate
financing as permitted by the amendment, subject to certain
exceptions relating to payment of fees and expenses and letters
of credit;
•
the intercreditor agreement is not executed and delivered on or
prior to the effective time of the merger, unless an alternate
financing will be consummated in lieu of the ArcLight financing;
•
Patriot has not delivered a certificate to the effect that as of
the effective time of the merger, no default exists or will
exist after giving effect to the merger; or
•
immediately prior to and after giving effect to the merger, the
aggregate of unused and available commitments under the Patriot
Credit Agreement and other free and unencumbered cash and cash
equivalents available to Patriot is less than a specified amount.
The second amendment to the Patriot Credit Agreement provides
that if the merger does not occur by September 30, 2008,
then any Patriot convertible notes outstanding after
September 30, 2008 shall be prepaid, purchased, redeemed,
converted or otherwise acquired by Patriot on or prior to
December 31, 2008, or such later date approved by the
administrative agent on behalf of the required lenders, for an
amount in cash up to the amount of principal of, and any
interest accrued on, the Patriot convertible notes and any
additional payment in the form of capital stock or indebtedness
permitted by the Patriot Credit Agreement.
Magnum
Convertible Notes Issuance
On March 26, 2008, Magnum issued $100 million in
aggregate principal amount of its 10% Senior Subordinated
Convertible Notes due 2013, which we refer to as the Magnum
convertible notes, to certain of its existing stockholders and
used the proceeds of such issuance to repay $100 million of
the senior secured indebtedness of Magnum. The Magnum
convertible notes, including any interest that has been added to
the principal thereof and any accrued and unpaid interest
thereon, will be converted into a number of shares of Magnum
common stock immediately prior to the effective time of the
merger. The 11,901,729 shares of Patriot common stock to be
issued to the holders of common stock of Magnum pursuant to the
merger agreement includes the shares of Patriot common stock to
be issued in respect of Magnum common stock issued upon the
conversion of the Magnum convertible notes immediately prior to
the effective time of the merger.
The conversion of the Magnum convertible notes into shares of
Magnum common stock will occur at a conversion price per share
equal to the lesser of (a) $7.50 and (b) (x) the
positive difference of the value of Magnum minus the then unpaid
principal of the Magnum convertible notes and all accrued and
unpaid interest thereon (calculated immediately prior to the
effective time of the merger) divided by (y) the number of
shares of Magnum common stock issued and outstanding immediately
prior to the effective time of the merger, not including those
issuable on conversion of the Magnum convertible notes. The
value of Magnum means, immediately prior to the effective time
of the merger, (a) the aggregate number of shares of
Patriot common stock to be issued to Magnum’s stockholders
as consideration for their Magnum common stock upon the
effective time of the merger, including the Magnum common stock
to be issued on conversion of the Magnum convertible notes,
multiplied by (b) the volume-weighted average price of
Patriot common stock on the New
York Stock Exchange for all trades executed during the ten
trading days immediately preceding the effective time of the
merger (based on trading data as reported on Bloomberg Financial
Services, Inc.).
As a result of the conversion price described above, the number
of shares of Magnum common stock into which the Magnum
convertible notes will be converted immediately prior to the
effective time will vary depending on the market price of
Patriot common stock prior to the conversion and the date on
which the effective time occurs. References in this proxy
statement/prospectus to the ownership of Patriot common stock by
holders of Magnum common stock (who will receive Patriot common
stock in the merger) on a pro forma basis for the issuance in
the merger are based upon the following assumptions:
(i) the volume-weighted average price of Patriot common
stock during the ten trading days immediately preceding the
effective time of the merger will not be below approximately $41
per share, which would result in a conversion price of $7.50 per
share of Magnum common stock, and (ii) the merger closes on
July 15, 2008, which would result in the conversion of
111 days of accrued and unpaid interest on the Magnum
convertible notes, in addition to the principal. Based on the
preceding assumptions, the aggregate of all convertible notes
would convert into approximately 13.7 million shares of
Magnum common stock (representing approximately 21.1% of
Magnum’s common stock outstanding after such conversion,
assuming 51,421,999 shares of Magnum common stock were
issued and outstanding (the amount issued and outstanding as of
the date of this proxy statement/prospectus) immediately before
such conversion). If the volume-weighted average price of
Patriot common stock during the ten trading days immediately
preceding the effective time of the merger is below
approximately $41 per share or the merger closes after
July 15, 2008, the holders of Magnum convertible notes will
receive a greater number of shares of Magnum common stock upon
conversion of their Magnum convertible notes, and therefore
receive more shares of Patriot common stock in the merger
relative to holders of Magnum common stock who do not own Magnum
convertible notes. Any modification to the number of shares of
Magnum common stock received upon conversion of the Magnum
convertible notes will not result in a change to the aggregate
number of shares of Patriot common stock issued in the merger,
which will remain at 11,901,729 shares of Patriot common
stock.
For additional details relating to the Magnum convertible notes,
see “Certain Relationships and Related Party
Transactions of Magnum — Magnum Convertible
Notes”.
Under Delaware law, holders of Patriot common stock are not
entitled to dissenters’ rights in connection with the
transaction. Holders of Magnum common stock who did not consent
to the approval and adoption of the merger agreement have the
right to seek appraisal of the fair value of their shares of
Magnum common stock as determined by the Delaware Court of
Chancery if the merger is completed, but only if they comply
with all requirements of Delaware law. Magnum will separately
provide holders of Magnum common stock who may be entitled to
exercise dissenters rights with information regarding their
rights and the related procedures.
This is a summary of the material provisions of the merger
agreement. The full text of the merger agreement is attached as
Annex A to this proxy statement/prospectus and is
incorporated herein by reference. You should read the merger
agreement carefully and in its entirety. The merger agreement
has been included to provide stockholders with information
regarding its terms. Except for its status as the contractual
document that establishes and governs the legal relations among
the parties to the merger agreement with respect to the merger,
it is not intended to be a source of factual, business or
operational information about the parties. The representations,
warranties and covenants made by the parties in the merger
agreement are qualified as described in the merger
agreement, including by information in disclosure
schedules that the parties exchanged in connection with the
execution of the merger agreement. Representations and
warranties may be used as a tool to allocate risks among the
parties, including where the parties do not have complete
knowledge of all facts. Stockholders are generally not
third-party beneficiaries under the merger agreement and should
not rely on the representations, warranties or covenants or any
descriptions as characterization of the actual state of facts or
condition of Patriot, Magnum or any of their respective
affiliates.
Subject to the terms and conditions of the merger agreement and
in accordance with Delaware law, at the effective time of the
merger Colt Merger Corporation, a wholly owned subsidiary of
Patriot, will merge with and into Magnum. Magnum will survive
the merger as a wholly owned subsidiary of Patriot.
Merger
Consideration; Escrow Shares
Subject to the next sentence, at the effective time of the
merger, the issued and outstanding shares of Magnum common stock
(including shares of Magnum restricted stock, whether vested or
unvested, and shares of Magnum common stock issued upon
conversion of the Magnum convertible notes immediately prior to
the effective time) will be converted into the right to receive
an aggregate of up to 11,901,729 shares of Patriot common
stock. To the extent that the transaction expenses incurred by
Magnum in connection with the transaction exceed the sum of
(1) $4 million and (2) the amount of fees and
expenses payable by Magnum to its financial advisor, the number
of shares of Patriot common stock issuable in the merger will be
decreased by a number of shares equal to the amount of such
excess divided by the market value of Patriot common stock. For
purposes of the foregoing calculation, the market value of
Patriot common stock means the average of the closing price of
Patriot common stock on the New York Stock Exchange for the 10
consecutive trading days immediately preceding the closing date
of the merger. We refer to the aggregate number of shares of
Patriot common stock issuable in the merger as the merger
consideration. Based on the 51,670,642 shares of Magnum
common stock outstanding as of the date of this proxy
statement/prospectus and assuming that (1) approximately
13.7 million shares of Magnum common stock are issued upon
conversion of the Magnum convertible notes (based upon the
assumptions set forth under “The Merger —
Financing Arrangements — Magnum Convertible Notes
Issuance”) and (2) the amount of transaction
expenses incurred by Magnum does not require a reduction in the
number of shares of Patriot common stock issuable in the merger,
each share of Magnum common stock outstanding at the effective
time of the merger will be converted into the right to receive
approximately 0.182 shares of Patriot common stock.
The merger agreement provides that the merger consideration will
be adjusted appropriately if, during the period between the date
of the merger agreement and the effective time of the merger,
the outstanding shares of Patriot common stock or Magnum common
stock are changed, including by reason of any reclassification,
recapitalization, stock split or combination, exchange or
readjustment of shares. Subject to any adjustments required by
the preceding sentence, Patriot will not be required to issue in
excess of 11,901,729 shares of Patriot common stock in the
merger. The merger consideration will not be adjusted for any
change in the outstanding shares of Patriot common stock
resulting from the exercise of stock options under compensation
plans existing on the date of the merger agreement or any bona
fide issuance of shares in which Patriot receives fair value (as
determined in good faith by Patriot’s board of directors).
At the effective time of the merger, ten percent of the shares
of Patriot common stock to be issued as merger consideration
will, in lieu of being delivered to certain Magnum stockholders,
be placed in an escrow account established to support the
indemnification obligations of certain designated stockholders
of Magnum under the merger agreement. For information regarding
indemnification under the merger agreement, see “The
Merger Agreement — Indemnification.”
Stockholders of Magnum will separately be provided with
information regarding the conversion of their shares of Magnum
common stock into shares of Patriot common stock pursuant to the
merger and the exchange of Magnum common stock certificates for
shares of Patriot common stock, including information related to
procedures associated with such conversion and the exchange of
stock certificates.
Conditions
to the Completion of the Merger
Conditions to the Obligations of Each
Party. The obligations of Patriot and Magnum to
consummate the merger are subject to the satisfaction of the
following conditions:
•
the issuance of Patriot common stock to the holders of Magnum
common stock pursuant to the merger agreement has been approved
by the affirmative vote of a majority of the votes cast by
Patriot stockholders at the special meeting where the total vote
cast represents over fifty percent in interest of the Patriot
common stock entitled to vote on the issuance;
•
no court order or injunction prohibits consummation of the
merger and no federal, state, local or foreign law, regulation
or other similar requirement has been enacted or applied by a
governmental authority that prohibits the consummation of the
merger;
•
the waiting period under the HSR Act applicable to the merger,
including any such waiting period relating to the issuance of
Patriot common stock in respect of any filing by the ArcLight
Funds and the parent of Cascade Investment, L.L.C., has expired
or has been terminated;
•
the registration statement relating to the issuance of Patriot
common stock in the merger, of which this proxy
statement/prospectus forms a part, has been declared effective
and no stop order suspending the effectiveness of the
registration statement is in effect, and no proceeding for that
purpose is pending before or threatened by the SEC; and
•
the shares of the Patriot common stock to be issued in the
merger have been approved for listing on the New York Stock
Exchange, subject to official notice of issuance.
Conditions to the Obligation of Patriot. The
obligation of Patriot to consummate the merger are subject to
the satisfaction of the following further conditions:
•
Magnum has performed in all material respects all of its
obligations under the merger agreement required to be performed
by Magnum at or prior to the effective time of the merger;
•
Magnum’s representations and warranties relating to:
•
corporate authorization;
•
capitalization, ownership of Magnum common stock and the Magnum
convertible notes;
•
investment banker and finders’ fees;
•
the receipt of an opinion from its financial advisor;
•
the inapplicability of antitakeover statutes to the merger
agreement and compliance with the Magnum stockholders
agreement; and
are true in all material respects at and as of the effective
time of the merger as if made at and as of such time, or if any
such representation and warranty expressly speaks as of an
earlier date, then as of such earlier date;
•
the representations and warranties of Magnum’s stockholders
in the voting agreement and the support agreements are true at
and as of the effective time of the merger as if made at and as
of such time, or if any such representation and warranty
expressly speaks as of an earlier date, then as of such earlier
date, with such exceptions as would not, in the aggregate,
adversely affect in any material respect any material right of,
benefit to or obligation of Patriot contained in those other
transaction documents;
•
the other representations and warranties of Magnum in the merger
agreement and in any certificate or other writing delivered by
Magnum pursuant to the merger agreement, disregarding any
qualifications in such representations and warranties as to
materiality or material adverse effect, shall be true at and as
of the effective time as if made at and as of such time, or if
any such representation and warranty expressly speaks as of an
earlier date, then as of such earlier date, except where the
failure of such representations and warranties to be true and
correct, in the aggregate, has not had and would not reasonably
be expected to have a Magnum material adverse effect;
•
there is no pending suit, action or proceeding by any
governmental authority (and no applicable law, injunction or
order shall have been proposed or enacted by a governmental
authority that could, directly or indirectly, reasonably be
expected to result in any of the following consequences):
•
seeking to restrain, prohibit or otherwise interfere with the
ownership or operation by Patriot of all or any material portion
of the business or assets of Magnum or of Patriot or to compel
Patriot to dispose of all or any material portion of the
business or assets of Magnum or of Patriot;
•
seeking to impose or confirm limitations on the ability of
Patriot to exercise full ownership rights of Magnum; or
•
seeking to require divestiture by Patriot of Magnum or any
material portion of Magnum’s or Patriot’s businesses
or assets,
•
each of the escrow agreement and registration rights agreement
has been executed and delivered and is in full force and effect;
•
each of the support agreements and the voting agreement is in
full force and effect, with no challenges to effectiveness by
any Magnum stockholders party thereto;
•
the consents to the merger of certain third parties have been
obtained and are in full force and effect;
•
Magnum has delivered to Patriot a certificate that sets forth
all transaction expenses of Magnum and certifies that all of
Magnum’s consultants and advisors have agreed to the
amounts set forth in such certificate;
•
the absence of a mining catastrophe suffered by Magnum that has
involved, or would be reasonably likely to involve, a loss of
lives;
•
Magnum has delivered to Patriot a certificate setting forth:
•
the number of shares of Magnum common stock outstanding
immediately prior to the effective time of the merger, including
the shares of Magnum common stock to be issued upon conversion
of the Magnum convertible notes;
•
the number of shares of Magnum common stock held by each
designated stockholder of Magnum immediately prior to the
effective time of the merger; and
•
the merger conversion price applicable to the Magnum convertible
notes pursuant to the note purchase agreement relating to the
Magnum convertible notes;
Patriot has either consummated the ArcLight financing or
consummated a financing of not less than $150 million from
an alternate source (which condition was satisfied upon
consummation of the offering of Patriot convertible notes); and
•
Patriot has received customary documents relating to the
existence of Magnum and its subsidiaries and the authority of
Magnum with respect to the merger agreement.
Conditions to the Obligation of Magnum. The
obligation of Magnum to consummate the merger are subject to the
satisfaction of the following further conditions:
•
Patriot has performed in all material respects all of its
obligations under the merger agreement required to be performed
by Patriot at or prior to the effective time of the merger;
•
Patriot’s representations and warranties relating to:
•
corporate authorization;
•
capitalization;
•
investment banker and finders’ fees;
•
the receipt of opinions from each of Lehman Brothers and
Duff & Phelps; and
•
the inapplicability antitakeover statutes to the merger
agreement and amendment to Patriot’s rights agreement;
are true in all material respects at and as of the effective
time of the merger as if made at and as of such time, or if any
such representation and warranty expressly speaks as of an
earlier date, then as of such earlier date;
•
the other representations and warranties of Patriot in the
merger agreement and in any certificate or other writing
delivered by Patriot pursuant to the merger agreement,
disregarding any qualifications in such representations and
warranties as to materiality or material adverse effect, are
true at and as of the effective time of the merger as if made at
and as of such time, or if such representation and warranty
expressly speaks as of an earlier date, then such representation
and warranty will be true as of such earlier date, except where
the failure of such representations and warranties to be true
and correct, in the aggregate, has not had and would not
reasonably be expected to have a Patriot material adverse effect;
•
each of the escrow agreement and the registration rights
agreement has been executed and delivered, and the Rights
Agreement has been amended, and each of the foregoing is in full
force and effect;
•
the absence of a mining catastrophe suffered by Patriot that has
involved, or would be reasonably likely to involve, a loss of
lives; and
•
Magnum has received customary documents relating to
Patriot’s existence and its authority with respect to the
merger agreement.
Magnum
Material Adverse Effect and Patriot Material Adverse
Effect
Certain representations and warranties of Magnum and Patriot,
and certain provisions in the merger agreement, are qualified by
references to either a “Magnum material adverse
effect” or a “Patriot material adverse effect.”
Magnum
Material Adverse Effect
The merger agreement provides that a “Magnum material
adverse effect” means a material adverse effect on
(a) Magnum’s ability to consummate the transactions
contemplated by the merger agreement without
material delay or (b) the condition (financial or
otherwise), business, assets, liabilities or results of
operations of Magnum, taken as a whole, excluding, for the
purposes of clause (b):
•
any adverse changes or developments affecting the industry in
which Magnum operates, the U.S. economy as a whole,
financial markets or the markets in which Magnum operates,
except to the extent, in any such case, disproportionately
impacting Magnum as compared to the other entities operating in
such industries or markets (and in such case, only the
disproportionate impact shall be taken into account in
determining if a Magnum material adverse effect has occurred);
•
any adverse changes or developments relating to changes in
accounting requirements or applicable law, except to the extent,
in either case, disproportionately impacting Magnum as compared
to the other entities operating in the industries in which
Magnum operates (and in such case, only the disproportionate
impact shall be taken into account in determining if a Magnum
material adverse effect has occurred);
•
any adverse changes or developments arising from Magnum’s
compliance with its obligations under the merger agreement or
other transaction documents; or
•
the breach of the merger agreement or any other transaction
document by Patriot or its affiliates.
For purposes of Patriot’s indemnification rights for
breaches of Magnum’s representations and warranties, the
term “Magnum material adverse effect” as used in
Magnum’s representations and warranties generally shall
include an adverse effect of $20,000,000 or more. For purposes
of the conditions to the obligation of Patriot to consummate the
merger, described under “The Merger
Agreement — Conditions to the Completion of the
Merger”above and for purposes of Patriot’s
indemnification rights for breaches of Magnum’s
representation and warranty regarding the overall accuracy of
its representations and warranties, the term “Magnum
material adverse effect” shall include an adverse effect of
$60,000,000 or more.
Patriot
Material Adverse Effect
The merger agreement provides that a “Patriot material
adverse effect” means a material adverse effect on
(a) Patriot’s ability to consummate the transactions
contemplated by the merger agreement without material delay or
(b) the condition (financial or otherwise), business,
assets, liabilities or results of operations of Patriot, taken
as a whole, excluding, for the purposes of clause (b):
•
any adverse changes or developments affecting the industry in
which Patriot operates, the U.S. economy as a whole,
financial markets or the markets in which Patriot operates,
except to the extent, in any such case, disproportionately
impacting Patriot as compared to the other entities operating in
such industries or markets (and in such case, only the
disproportionate impact shall be taken into account in
determining if a Patriot material adverse effect has occurred);
•
any adverse changes or developments relating to changes in
accounting requirements or applicable law, except to the extent,
in either case, disproportionately impacting Patriot as compared
to the other entities operating in the industries in which
Patriot operates (and in such case, only the disproportionate
impact shall be taken into account in determining if a Patriot
material adverse effect has occurred);
•
any adverse changes or developments arising from Patriot’s
compliance with its obligations under the merger agreement or
other transaction documents;
•
a decline in the price or trading volume of Patriot’s
common stock on the New York Stock Exchange (but any underlying
cause for any such change may be considered); or
•
the breach of the merger agreement or any other transaction
document by Magnum or its affiliates or stockholders.
For purposes of the indemnification rights of Magnum’s
designated stockholders for breaches of Patriot’s
representations and warranties, the term “Patriot material
adverse effect” as used in Patriot’s representations
and warranties generally shall include an adverse effect of
$50,000,000 or more. For purposes of the conditions to the
obligation of Magnum to consummate the merger, described under
“The Merger
Agreement — Conditions to the Completion of the
Merger” above and for purposes of the indemnification
rights of Magnum stockholders for breaches of Patriot’s
representation and warranty regarding the overall accuracy of
its representations and warranties, the term “Patriot
material adverse effect” shall include an adverse effect of
$150,000,000 or more.
Change in
Patriot Board Recommendation
The merger agreement provides that, except as required by
applicable law, Patriot’s board of directors may not
(1) withhold, withdraw, qualify, modify or amend (or
publicly propose or resolve to do any of the foregoing) its
recommendation that the Patriot stockholders approve the
issuance of the Patriot common stock issuable to the holders of
Magnum common stock in the merger or (2) approve or
recommend, or publicly propose to approve or recommend, any
agreement or transaction, or cause or permit Patriot to enter
into any agreement requiring Patriot to abandon, terminate or
fail to consummate the transactions contemplated by the merger
agreement or breach its obligations or resolve, propose or agree
to do any of the foregoing. Patriot’s board of directors is
required to submit the issuance of Patriot common stock pursuant
to the merger agreement to a vote of Patriot’s stockholders
notwithstanding any withholding, withdrawal, qualification,
modification or amendment of Patriot’s stockholder
recommendation.
Termination
of the Merger Agreement
The merger agreement may be terminated and the merger abandoned
at any time prior to the effective time, even after receipt of
the Patriot stockholder approval for the issuance of Patriot
common stock to the holders of Magnum common stock.
The merger agreement may be terminated:
•
by mutual written agreement of Patriot and Magnum;
•
by either Patriot or Magnum, if:
•
the merger is not consummated by September 30, 2008,
provided that this right to terminate will not be available to a
party if its breach of the merger agreement caused the failure
of the merger to be consummated by such time;
•
any applicable law or a final nonappealable injunction prohibits
consummation of the merger; or
•
Patriot stockholders do not approve the issuance of Patriot
common stock to the holders of Magnum common stock at the
Patriot stockholders meeting; or
•
by Patriot, if:
•
a breach of Magnum’s representations and warranties or
covenants would result in a failure to satisfy the closing
conditions and Magnum is not using commercially reasonably
efforts to cure such breach or failure or such condition would
not reasonably be expected to be satisfied by September 30,2008; or
•
Magnum has notified Patriot that the closing condition relating
to the accuracy of Magnum’s representations and warranties
except for such exceptions that would not have a Magnum material
adverse effect is not capable of being satisfied (see
“The Merger Agreement — Termination of the
Merger Agreement — Notice of Material Adverse
Effect”below); or
•
by Magnum, if:
•
Patriot’s board of directors fails to make, withdraws, or
modifies in a manner adverse to Magnum, its recommendation that
Patriot’s stockholders approve the issuance of Patriot
common stock to the holders of Magnum common stock pursuant to
the merger agreement and Patriot stockholder approval of the
issuance of Patriot common stock to the holders of Magnum common
stock has not occurred prior to termination;
a breach of Patriot’s representations and warranties or
covenants would result in a failure of the closing conditions to
be satisfied and Patriot is not using commercially reasonably
efforts to cure such breach or failure or such condition would
not reasonably be expected to be satisfied by September 30,2008;
•
Patriot enters into any agreement with respect to (1) a
merger, consolidation, share exchange, business combination,
reorganization, recapitalization, sale of all or substantially
all of its assets or other similar transaction that, in any such
case, requires the approval of Patriot stockholders under
Delaware law or (2) a transaction involving the issuance of
20% or more of Patriot common stock, and, in either such case,
the record date for the stockholder vote to approve such
transaction occurs prior to the merger’s closing
date; or
•
Patriot has notified Magnum that the closing condition relating
to the accuracy of Patriot’s representations and warranties
except for such exceptions that would not have a Patriot
material adverse effect is not capable of being satisfied (see
“The Merger Agreement — Termination of the
Merger Agreement — Notice of Material Adverse
Effect”below).
Notice
of Material Adverse Effect
The merger agreement provides that if the condition described in
the fourth bullet under “The Merger
Agreement — Conditions to the Completion of the
Merger — Conditions to the Obligation of Patriot”above is not capable of being satisfied prior to
September 30, 2008, then at any time prior to the fifth
business day before the date on which the merger would have been
expected to occur if such condition were satisfied, Magnum may
deliver a notice to Patriot explaining in reasonable detail why
such condition will not be satisfied. Patriot may elect to
terminate the merger agreement or waive such condition and
proceed with the merger, in which case Patriot will be deemed to
have waived claims for indemnification for damages reasonably
expected to arise from the matters described in such notice.
The merger agreement also provides that if the condition
described in the third bullet under “The Merger
Agreement — Conditions to the Completion of the
Merger — Conditions to the Obligation of Magnum”above is not capable of being satisfied prior to
September 30, 2008, then at any time prior to the fifth
business day before the date on which the merger would have been
expected to occur if such condition were satisfied, Patriot may
deliver a notice to Magnum explaining in reasonable detail why
such condition will not be satisfied. Magnum may elect to
terminate the merger agreement or waive such condition and
proceed with the merger, in which case Magnum and its
stockholders will be deemed to have waived claims for
indemnification for damages reasonably expected to arise from
the matters described in such notice.
Magnum
Expense Reimbursement
If the merger agreement is terminated because:
•
Patriot stockholders do not approve the issuance of Patriot
common stock to the holders of Magnum common stock at the
Patriot stockholders meeting; or
•
Patriot’s board of directors fails to make, withdraws, or
modifies in a manner adverse to Magnum, its recommendation that
Patriot’s stockholders approve the issuance of Patriot
common stock to the holders of Magnum common stock pursuant to
the merger agreement;
and in either case, certain of the other conditions to closing
have been satisfied or are capable of being satisfied reasonably
promptly; or
•
the merger has not been consummated by September 30, 2008
and at the time of termination, the closing condition related to
the ArcLight financing is not satisfied solely as a result of a
potential claim of default under the Patriot Credit Agreement
relating to the terms of the ArcLight financing, and all other
closing conditions have been satisfied or are immediately
capable of being satisfied or waived;
then Patriot will reimburse Magnum for its costs and expenses
incurred since January 1, 2008 in connection with the
transaction, subject to a reimbursement cap of $5 million.
If the reimbursement obligation arises, it will be Magnum’s
exclusive remedy.
Conduct
of Business Pending the Merger
Under the merger agreement, from the date of the merger
agreement until the effective time of the merger or the earlier
termination of the merger agreement, subject to certain
exceptions, Magnum and its subsidiaries are required to conduct
their business in the ordinary course consistent with past
practice and in compliance with applicable law and use all
commercially reasonable efforts to preserve intact their present
business organizations, maintain in effect all material
licenses, permits, consents, franchises, approvals and
authorizations, maintain satisfactory relationships with their
significant customers, lenders, suppliers and others having
significant business relationships with them, and continue to
make capital expenditures with respect to certain projects. In
addition, subject to certain exceptions, neither Magnum nor its
subsidiaries will, among other things, without Patriot’s
prior written consent (which consent will not be unreasonably
withheld, delayed or conditioned):
split, combine or reclassify any shares of its capital stock or
declare, set aside or pay any dividend or other distribution in
respect of its capital stock;
•
redeem, repurchase or otherwise acquire or offer to redeem,
repurchase, or otherwise acquire any of its securities, other
than repurchases required by Magnum’s stock incentive plan;
•
amend the terms of any securities or issue any securities, other
than the issuance of Magnum common stock upon conversion of the
Magnum convertible notes;
•
incur any capital expenditures or any obligations or liabilities
in respect of capital expenditures;
•
acquire any assets or properties, other than supplies in the
ordinary course of business, certain coal reserves, certain
permitted capital expenditures, and certain securities related
to reclamation obligations;
•
sell, lease or otherwise transfer, or incur any lien on, assets
or properties, other than certain permitted liens, sales of
inventory in the ordinary course of business and sales of
certain assets or properties;
•
make any loans, advances or capital contributions, other than
certain loans and advances made in the ordinary course of
business;
•
create, incur, assume or otherwise be indebted for borrowed
money, if after such action the aggregate principal amount of
indebtedness for borrowed money (excluding capital leases and
certain loans relating to letters of credit) of Magnum and its
subsidiaries would exceed $250,000,000 (after deducting up to
$25,000,000 in unrestricted cash or cash equivalents);
•
enter into any agreement or arrangement that would restrict
Magnum, Patriot or any of their respective affiliates from
engaging or competing in any line of business after the
effective time;
•
enter into certain contracts or amend, modify or terminate
certain contracts;
•
amend, grant or increase any compensation, severance or
termination benefits of any director, officer or employee or
enter into or amend any benefit plan or any employment or
similar agreement;
•
change accounting methods;
•
settle, or offer or propose to settle, certain types of
litigation, investigations, arbitrations, proceedings or other
claims;
•
take any action that would intentionally make any representation
or warranty of Magnum under the merger agreement inaccurate in
any material respect at, or as of any time before, the effective
time of the merger as if made as of the effective time;
permit its existing lessees or licensees to conduct exploration
or similar operations for natural resources in a manner that
will adversely affect any active coal mining operations on its
property in any material respect; or
•
agree, resolve or commit to do any of the foregoing.
Under the merger agreement, from the date of the merger
agreement until the effective time of the merger or the earlier
termination of the merger agreement, without Magnum’s prior
written consent (which consent will not be unreasonably
withheld, delayed or conditioned), Patriot will not:
declare, set aside or pay any dividend or other distribution in
respect of its capital stock; and
•
take any action, or permit its subsidiaries to take any action,
that would intentionally make any representation or warranty of
Patriot under the merger agreement inaccurate in any material
respect at, or as of any time prior to, the effective time of
the merger as if made as of the effective time.
Representations
and Warranties
The merger agreement contains representations and warranties
made by each of the parties regarding aspects of their
respective businesses, financial condition and structure, as
well as other facts pertinent to the merger. Each of Patriot and
Magnum has made representations and warranties to the other
party relating to, among other things:
•
corporate existence, power and good standing;
•
corporate power and authorization to execute, deliver and
perform the merger agreement, the other transaction documents,
and the transactions contemplated by the merger agreement and
the other transaction documents;
•
required consents, approvals and authorizations of governmental
authorities and third parties relating to the merger agreement
and the other transaction documents;
•
board approval of the merger agreement, the merger and the
related transactions;
Patriot has agreed to provide certain Magnum employees whose
employment is involuntarily terminated within six months after
the effective time of the merger (other than for cause) with
severance benefits to the extent such benefits are available to
such employees under certain existing Magnum severance plans.
Patriot has also agreed that for six months following the
effective time, subject to applicable law, it will provide
Magnum employees who remain employed with Patriot or Magnum with
employee benefits that are, at Patriot’s election,
substantially comparable in the aggregate to the benefits
provided to similarly situated employees of Patriot or the
benefits provided by Magnum immediately prior to the effective
time. In addition, as described under “Interests of
Certain Persons in the Transaction — Magnum’s
Officers, Directors and Affiliates — Severance
Payments,” certain Magnum employees participate in a
retention program that is designed to retain these employees
through a transitionary period of up to nine months after the
closing of a change of control transaction such as the merger.
Financing
The merger agreement provides that, subject to the terms and
conditions of the commitment letter relating to the ArcLight
financing, Patriot will use its commercially reasonable efforts
to complete the ArcLight financing at the effective time of the
merger on the terms and conditions described in the commitment
letter and such other terms and conditions as are necessary to
give effect to the terms and conditions described in the
commitment letter that are commercially reasonable, customary
for bridge loans of a similar size and type, and not less
favorable to Patriot than those set forth in the Patriot Credit
Agreement, provided that the consummation of the ArcLight
financing on such terms would not reasonably be expected to
result in any claim of default under the Patriot Credit
Agreement relating to the terms of the ArcLight financing.
Patriot is required to commence negotiation of definitive
agreements for the ArcLight financing by May 2, 2008.
The merger agreement provides that commencing no later than
May 17, 2008, Patriot will use its commercially reasonable
efforts to identify one or more alternate financings on terms
satisfactory to Patriot in its discretion and if so identified,
to negotiate the terms of and execute definitive documents with
respect to such alternate financing. The determination to cease
negotiating any alternate financing and to execute or not
execute definitive documentation related to any alternate
financing will, in each case, be in Patriot’s discretion.
As a result of the consummation of the offering of Patriot
convertible notes, Patriot satisfied all of its obligations
under the merger agreement relating to financing. For further
information relating to the offering of Patriot convertible
notes, see “The Merger — Financing
Arrangements — ArcLight Financing; Issuance of Patriot
Convertible Notes.”
The outstanding senior secured indebtedness of Magnum (other
than capital leases) at the effective time of the merger will be
repaid (or defeased, in the case of certain letters of credit)
with proceeds from the ArcLight financing
and/or the
alternate financing
and/or
unrestricted cash or cash equivalents of Magnum.
Survival
of Representations and Warranties; Indemnification
The representations and warranties of Patriot and Magnum in the
merger agreement generally survive the effective time of the
merger until the first anniversary of the effective time.
Certain representations and warranties of Patriot and Magnum
will survive the effective time of the merger until the third
anniversary of the effective time. Representations and
warranties of each party relating to corporate authorization for
the transaction, capitalization and antitakeover statutes, and
Magnum’s representation and warranty relating to its
affiliate transactions, will survive until the latest date
permitted by law.
Indemnification
of Patriot
From and after the effective time of the merger, certain
designated stockholders of Magnum, based on each designated
stockholder’s pro rata share of any applicable damages,
severally but not jointly indemnify Patriot and its affiliates,
including, Magnum and its subsidiaries, and their respective
successors and assigns against any and all damages incurred by
such person, arising out of any:
•
misrepresentation or breach of warranty or alleged
misrepresentation or breach of warranty made by Magnum pursuant
to the merger agreement or any other transaction document;
•
breach of covenant or agreement made by Magnum pursuant to the
merger agreement or any other transaction document;
•
demand for appraisal by a holder of Magnum common stock in
connection with the merger;
•
claim, suit, action or proceeding by any holder of:
•
Magnum capital stock, in connection with the merger or the other
transactions contemplated by the merger agreement, or relating
to its ownership of shares of Magnum common stock or the
issuance of the Magnum convertible notes; or
•
Magnum convertible notes, except for certain claims relating to
the conversion of the notes into Magnum common stock prior to
the effective time; or
•
transaction expenses (other than those resulting in an
adjustment to the number of shares of Patriot common stock
issued in the merger) in excess of the sum of $4 million
and the amounts paid to Magnum’s financial advisor with
respect to the merger.
Ten percent of the shares of Patriot common stock to be issued
in the merger will be placed in escrow for one year to secure
the designated stockholders’ indemnity obligations to
Patriot. See “Ancillary Transaction
Agreements — Escrow Agreement”. The shares of
Patriot common stock that will be placed in escrow will be
deducted from the shares otherwise issuable to the designated
stockholders. The designated stockholders own approximately 99%
of Magnum’s issued and outstanding common stock. Subject to
certain exceptions, indemnification for breaches of
Magnum’s representations and warranties is subject to a
$100,000 per claim de minimis exception and a
$6 million aggregate deductible.
Subject to certain limited exceptions, Patriot’s exclusive
remedy with respect to claims arising out of breaches of
Magnum’s representations and warranties and breaches of
Magnum’s covenants or agreements will be pursuant to an
indemnification claim against the then-available escrow property
pursuant to the escrow agreement. With respect to all other
indemnification claims, Patriot may make a claim against the
then available escrow property in the escrow account, the
designated stockholders or a combination of the
foregoing. The designated stockholders’ aggregate maximum
liability in respect of such claims is subject to a cap equal to
the net proceeds received by the designated stockholders in the
merger. Except for claims for breaches of certain limited
representations and warranties and claims related to actions
brought by Magnum stockholders or noteholders, Patriot may not
make a claim against the designated stockholders after the third
anniversary of the effective time.
Indemnification
by Patriot
From and after the effective time of the merger, Patriot will
indemnify each stockholder of Magnum and its affiliates against
any and all damages incurred by such person arising out of any:
•
misrepresentation or breach of warranty or alleged
misrepresentation or breach of warranty made by Patriot pursuant
to the merger agreement or any other transaction
document; or
•
breach of covenant or agreement made by Patriot pursuant to the
merger agreement or any other transaction document;
Subject to certain exceptions, indemnification for breaches of
Patriot’s representations and warranties is subject to a
$100,000 per claim de minimis exception, a
$6 million deductible and is capped at $54 million,
except that with respect to breaches of certain limited
representations and warranties, Patriot’s indemnification
obligations are capped at $534 million, the approximate
market value of Patriot common stock, as of the date of the
merger agreement, to be received by the designated stockholders
in the merger. With limited exceptions, the Magnum stockholders
will not be entitled to make a claim against Patriot for breach
of its representations or warranties after the third anniversary
of the effective time. The rights of Magnum stockholders to
pursue indemnity claims are subject to certain limitations,
including the requirement that all such claims must be brought
by the stockholder representative on behalf of the Magnum
stockholders.
In addition, Magnum’s stockholders have waived, to the
fullest extent permitted by law, any claims under any applicable
law relating to the sale or distribution of securities that they
might otherwise have by virtue of the transactions contemplated
by the merger agreement. If any such claim is brought by a
Magnum stockholder, such stockholder will not be entitled to
indemnification pursuant to the merger agreement and will be
required to refund to Patriot any damages previously paid by
Patriot to such stockholder.
Articles
of Incorporation and By-laws of the Surviving
Corporation
The merger agreement provides that at the effective time of the
merger, Magnum’s certificate of incorporation, as in effect
immediately prior to the effective time, will be amended to read
in its entirely as set forth in an exhibit to the merger
agreement, and, as so amended, will be the certificate of
incorporation of the surviving corporation, until changed or
amended as provided therein or by applicable law. The merger
agreement further provides that Magnum’s bylaws, as in
effect immediately prior to the effective time of the merger,
will be amended and restated to read in their entirety as set
forth in an exhibit to the merger agreement, and as so amended
and restated, shall be the bylaws of the surviving corporation,
until changed or amended as provided therein or by applicable
law.
Amendment;
Waiver
Any provision of the merger agreement may be amended or waived
prior to the effective time of the merger if, but only if, such
amendment or waiver is in writing and signed, in the case of an
amendment, by each party to the merger agreement or, in the case
of a waiver, by the party against whom the waiver is to be
effective.
Specific
Performance
The parties to the merger agreement have agreed that irreparable
damage would occur if any provision of the merger agreement is
not performed in accordance with its terms and that the parties
will be entitled (without being required to post bond) to an
injunction or injunctions to prevent breaches of the merger
agreement or to enforce specifically the performance of the
terms and provisions of the merger agreement in
any state court located in the State of Delaware, in addition to
any other remedy to which they are entitled at law or in equity.
Stockholder
Representative
The ArcLight Funds have agreed to jointly act as the
representative and attorney-in-fact and agent of Magnum’s
stockholders in connection with certain provisions of the merger
agreement and the related agreements.
Prior to the execution of the merger agreement, Patriot and
American Stock Transfer & Trust Company, as
rights agent, entered into a First Amendment to the Rights
Agreement dated as of October 22, 2007, between Patriot and
the rights agent. The amendment to the rights agreement
provides, among other things, that the separation of rights from
the shares of Patriot common stock under the rights agreement
will not be triggered as a result of the transactions
contemplated by the merger agreement, including the issuance of
Patriot common stock to holders of Magnum common stock. The
amendment to the rights agreement also provides that no
stockholder of Magnum or any of its affiliates or associates
will be deemed to be an acquiring person (as defined in the
rights agreement) solely as a result of the entry into the
merger agreement or the consummation of the transactions
contemplated by the merger agreement, including the issuance of
Patriot common stock.
In connection with the execution and delivery of the merger
agreement, Patriot and certain stockholders of Magnum entered
into a voting agreement and the support agreements. The full
text of the voting agreement is attached as Annex B to this
proxy statement/prospectus and is incorporated herein by
reference. You should read the voting agreement carefully and in
its entirety because it contains important terms affecting
Patriot after the effective time of the merger. In addition, at
the effective time of the merger, Patriot will enter into a
registration rights agreement and an escrow agreement. This is a
summary of the material provisions of the voting agreement, the
support agreements and the forms of the registration rights
agreement and escrow agreement. When this summary refers to one
or more holders of Magnum common stock, it is typically
referring to such holder or holders in the capacity as a
recipient of Patriot common stock in the merger.
Voting
Agreement
Board
of Directors of Patriot Following the Merger
Pursuant to the voting agreement, effective as of the effective
time of the merger, Patriot’s board of directors will be
expanded from seven to nine members and the board of directors
will appoint two nominees designated by certain holders of
Magnum common stock, acting through the ArcLight Funds as their
stockholder representative. One such nominee will serve as a
Class I director and the other nominee will serve as a
Class II director on Patriot’s board of directors. Any
board nominee or replacement selected by the stockholder
representative must be reasonably acceptable to the nominating
and governance committee of Patriot’s board of directors
and must, to the reasonable satisfaction of the nominating and
governance committee, be an “independent director”
under the New York Stock Exchange’s listing standards,
disregarding certain disclosed relationships. The nominees
initially designated by the stockholder representative for
appointment are Robb E. Turner and John F. Erhard, each of whom
is affiliated with the ArcLight Funds. The nominating and
governance committee of Patriot’s board of directors has
determined that as of the date of the voting agreement,
Messrs. Turner and Erhard would be “independent
directors” under the standard described above.
At such time as certain holders of Magnum common stock own less
than twenty percent (but at least ten percent) of the Patriot
common stock outstanding or the ArcLight Funds own less than ten
percent of the Patriot common stock outstanding, the stockholder
representative will be entitled to one board nominee only. At
such time as certain holders of Magnum common stock own less
than ten percent of the Patriot common stock outstanding, the
stockholder representative will not be entitled to any board
nominees.
For purposes of the determination of ownership of Patriot common
stock by the relevant holders of Magnum common stock for the
purposes of board nominee rights under the voting agreement,
(1) the number of shares of Patriot common stock
outstanding is deemed to be equal to the sum of the number of
shares of Patriot common stock outstanding on the date of the
merger agreement and the number of Patriot shares issued in the
merger, (2) Magnum stockholders who have agreed to a
“reduced standstill” (described below) will be deemed
to no longer own thirty percent of their shares of Patriot
common stock at any applicable time and (3) Magnum
stockholders who have agreed to a “limited standstill”
(described below) will be deemed to no longer own seventy
percent of their shares of Patriot common stock at any
applicable time. Once the Magnum stockholders have lost the
right to nominate one or both members of Patriot’s board of
directors, they will not regain such rights regardless of any
subsequent acquisitions of Patriot common stock or any change to
the outstanding Patriot common stock that results in their
ownership percentage exceeding the thresholds specified above.
Applying the foregoing bases for calculation of ownership, it is
anticipated that the relevant Magnum stockholders will own
approximately 23.4% of the Patriot common stock outstanding as
of the date of the merger agreement on a pro forma basis for the
issuance in the merger.
Voting
Obligations of Certain Magnum Stockholders
So long as the stockholder representative is entitled to
nominate any members to Patriot’s board of directors,
holders of Magnum common stock who are expected to hold
approximately 30.5% of the Patriot common stock outstanding as
of the date of the merger agreement on a pro forma basis for the
issuance in the
merger have agreed to vote all of their shares of Patriot common
stock in favor of the entire slate of directors recommended for
election by the Patriot board of directors to Patriot’s
stockholders.
In addition, so long as the stockholder representative is
entitled to nominate any members to Patriot’s board of
directors, holders of Magnum common stock who are expected to
hold approximately 25.5% of the Patriot common stock outstanding
as of the date of the merger agreement on a pro forma basis for
the issuance in the merger have agreed to vote all of their
shares of Patriot common stock as recommended by Patriot’s
board of directors in the case of (1) any stockholder
proposal submitted for a vote at any meeting of Patriot’s
stockholders and (2) any proposal submitted by Patriot for
a vote at any meeting of Patriot’s stockholders relating to
the appointment of Patriot’s accountants or a Patriot
equity compensation plan.
“Standstill”
Restrictions
The ArcLight Funds, which are expected to collectively hold
approximately 16.9% of the Patriot common stock outstanding as
of the date of the merger agreement on a pro forma basis for the
issuance in the merger, have agreed that unless invited to do so
on an unsolicited basis by Patriot’s board of directors,
neither the ArcLight Funds nor any of their affiliates will,
directly or indirectly:
•
acquire, offer, or propose or seek to acquire, any Patriot
securities or options to acquire Patriot securities;
•
enter into, agree, offer, propose or seek to enter into, or be
involved in, any acquisition transaction, merger or other
business combination relating to Patriot or all or substantially
all of Patriot’s assets or businesses;
•
make, or in any way participate in a solicitation of proxies to
vote, or seek to advise or influence any person with respect to
the voting of, any Patriot voting securities;
•
form, join or participate in a “group” with respect to
any Patriot voting securities;
•
seek, propose or otherwise act alone or in concert with others,
to influence or control Patriot’s management, policies, or
board of directors;
•
enter into any discussions or arrangements with any other person
with respect to any of the foregoing activities;
•
advise, assist, knowingly encourage, act as a financing source
for or invest in any other person in connection with any of the
foregoing activities; or
•
disclose any intention or plan inconsistent with any of the
foregoing.
The ArcLight Funds have also agreed that during the standstill
period, described below, they will not request that Patriot or
its representatives amend or waive the above listed provisions
or take any initiative which would reasonably be expected to
require Patriot to make a public announcement regarding any of
the activities specified above or the possibility of the
ArcLight Funds or any other person acquiring control of Patriot.
Subject to certain exceptions, the standstill restrictions set
forth above will not apply to the ArcLight Funds in the event
that (1) Patriot has entered into a definitive agreement
with a third party with respect to a business combination
transaction (as defined in the voting agreement) or (2) a
third party commences a tender offer which if consummated would
result in a business combination transaction and the board of
directors of Patriot has either recommended such offer or not
rejected such offer within ten business days after the
announcement. If any announced business combination transaction
or tender offer is terminated without being consummated, the
standstill restrictions will again be applicable to the ArcLight
Funds.
Certain Magnum stockholders, who are expected to collectively
hold approximately 8.0% of the Patriot common stock outstanding
as of the date of the merger agreement on a pro forma basis for
the issuance in the merger, have agreed to a “reduced
standstill” restriction. The “reduced standstill”
restrictions are similar in scope to the standstill restrictions
applicable to the ArcLight Funds, but are binding only on the
applicable Magnum stockholders and their “controlled”
affiliates and also permit those stockholders to take certain
actions in the ordinary course of business and not for the
purpose of circumventing the standstill restrictions. In
addition, certain other Magnum stockholders, who are expected to
collectively hold approximately 3.0% of the Patriot common stock
outstanding as of the date of the merger agreement on a pro
forma basis for the issuance in the merger, have agreed to a
“limited standstill” restriction. The “limited
standstill” restrictions are similar in scope to the
“reduced standstill” restrictions but permit certain
additional actions in the ordinary course of business and not
for the purpose of circumventing the standstill restrictions.
The standstill obligations applicable to the ArcLight Funds and
the Magnum stockholders that have agreed to the “reduced
standstill” and “limited standstill” will apply
for the period from the effective time of the merger until the
later to occur of (1) the stockholder representative no
longer being entitled to nominate any members of Patriot’s
board of directors or (2) nine months after the time that
the ArcLight Funds and the Magnum stockholders that have agreed
to the “reduced standstill” and “limited
standstill” and their respective affiliates in the
aggregate own less than 7.5% of the outstanding shares of
Patriot common stock.
Transfer
Restrictions
Certain Magnum stockholders, who are expected to collectively
hold approximately 30.5% of the Patriot common stock outstanding
as of the date of the merger agreement on a pro forma basis for
the issuance in the merger, will be subject to certain
restrictions on their ability to transfer shares of Patriot
(including a transaction that changes the economic benefits or
risks of ownership) as follows:
•
no transfers will be permitted for 180 days following the
effective time of the merger;
•
between 180 days after the effective time and 270 days
after the effective time, up to fifty percent of their shares
may be transferred;
•
between 270 days after the effective time and 360 days
after the effective time, up to seventy-five percent of their
shares may be transferred; and
•
no restrictions will apply after 360 days after the
effective time.
Amendments
and Waivers
Any provision of the voting agreement may be amended or waived
if, but only if, such amendment or waiver is in writing and is
signed, in the case of an amendment, by Patriot, the stockholder
representative and a number of Magnum stockholders owning at
least
662/3%
of the Patriot common stock owned by all Magnum stockholders
party to the voting agreement at the applicable time, or in the
case of a waiver, by the party against whom the waiver is to be
effective. Amendments to the provisions relating to voting
obligations, standstill restrictions, transfer restrictions and
amendments to the voting agreement, and any amendment that is
adverse to a stockholder party to the voting agreement, require
the consent of each stockholder party against whom the amendment
is to be effective.
Effectiveness
and Termination
The voting agreement will be effective at the effective time of
the merger. After the effective time, the voting agreement will
terminate on the earlier of (1) the written agreement of
Patriot and the stockholder representative and (2) the
date, if any, of the termination of the standstill period
described above.
Support
Agreements
Concurrently with the execution and delivery of the merger
agreement, Patriot and stockholders of Magnum representing
approximately 99% of the outstanding common stock of Magnum as
of the date of the merger agreement executed and delivered
Support Agreements dated as of April 2, 2008. Pursuant to
the support agreements, immediately after the execution and
delivery of the merger agreement, the Magnum stockholders party
to the support agreements executed written consents approving
the merger agreement and the merger. As a result of the
execution of these written consents, no further vote or approval
of the stockholders of Magnum is required in connection with the
consummation of the merger.
In addition, pursuant to the support agreements, the Magnum
stockholders executing the support agreements confirmed the
appointment of the ArcLight Funds as the stockholder
representative under the merger agreement and the escrow
agreement and acknowledged and agreed to be bound by certain
provisions of the merger agreement, including provisions
relating to the payment of merger consideration and the escrow
of shares of Patriot common stock, the indemnification
obligations of the designated stockholders of Magnum and the
rights and limitations of the indemnification available to the
Magnum stockholders pursuant to the merger agreement. The
support agreements also provide for a customary release,
effective as of the effective time of the merger, by each Magnum
stockholder that is party to a support agreement of claims it
may have against Patriot, Magnum and their respective affiliates
relating to matters arising prior to the effective time.
At the effective time of the merger, Patriot and the ArcLight
Funds will enter into a registration rights agreement which
provides the ArcLight Funds with customary registration rights
with respect to the shares of Patriot common stock to be issued
to the ArcLight Funds in the merger. The ArcLight Funds are
entitled to three “demand” and unlimited
“piggy-back” registration rights under the agreement.
Subject to customary restrictions and limitations, the
registration rights agreement provides that the ArcLight Funds
are entitled to require Patriot to effect up to three separate
demand registrations. In addition, no registration request may
be made prior to 180 days after the effective time of the
merger, no registration statement will be required to be filed
pursuant to a demand registration request prior to
November 1, 2008 and the aggregate proceeds expected to be
received from the sale of the securities requested to be
included in a demand registration must be at least
$50 million.
Escrow
Agreement
At the effective time of the merger, Patriot, the ArcLight
Funds, as stockholder representative, and an escrow agent
mutually selected by Patriot and Magnum, will enter into an
escrow agreement pursuant to which ten percent of the shares of
Patriot common stock to be issued in the merger will be placed
in escrow for one year to secure the indemnification obligations
of the designated stockholders of Magnum. Indemnity claims
payable to Patriot will be paid based on the market value (as
defined in the merger agreement) at the time of payment of the
Patriot common stock being delivered. To the extent Patriot has
made claims against the escrow that are still pending on the
first anniversary of the effective time, a portion of the
Patriot common stock sufficient to cover payment of those claims
will be retained in the escrow account until the claims are
resolved. With respect to any matter on which Patriot
stockholders have voting rights, shares held in the escrow
account will be voted by the stockholder representative subject
to the terms of the voting agreement described above.
The following unaudited pro forma condensed combined financial
information is based upon the historical consolidated financial
information of Patriot and Magnum included in this proxy
statement/prospectus and has been prepared to reflect the merger
based on the purchase method of accounting. The unaudited pro
forma condensed combined balance sheet as of March 31, 2008
is presented as if the merger and related financing had occurred
on that date. The unaudited pro forma condensed combined
statement of operations for the year ended December 31,2007 and for the three months ended March 31, 2008 assume
that the merger had occurred on January 1, 2007. The
historical consolidated financial information has been adjusted
to give effect to estimated pro forma events that are directly
attributable to the merger and factually supportable. Certain
amounts in the historical consolidated Magnum financial
information have been reclassified to conform to Patriot’s
financial statement presentation.
The unaudited pro forma condensed combined financial statements
should be read in conjunction with Patriot’s historical
audited financial statements included in Annex E to this
proxy statement/prospectus, Magnum’s historical audited
financial statements included in Annex F to this proxy
statement/ prospectus, Patriot’s unaudited financial
statements as of and for the period ended March 31, 2008
included in Annex G to this proxy statement/prospectus,
Magnum’s unaudited financial statements as of and for the
period ended March 31, 2008 included in Annex H to
this proxy statement/prospectus, “Management’s
Discussion and Analysis of Financial Condition and Results of
Operations of Patriot,”“Management’s Discussion
and Analysis of Financial Condition and Results of Operations of
Magnum” and “Management’s Discussion and Analysis
of Pro Forma Results of Operations of Magnum.”Patriot’s historical financial statements have been
adjusted to present the results as if the spin-off from Peabody
occurred on January 1, 2007 instead of October 31,2007.
For purposes of this unaudited pro forma condensed combined
financial information, Patriot has made a preliminary allocation
of the estimated purchase price to the tangible and intangible
assets acquired and liabilities assumed based on various
estimates of their fair value. The purchase consideration,
including certain acquisition and closing costs, will be
allocated amongst the relative fair values of the assets
acquired and liabilities assumed based on their estimated fair
values as of the date of merger. This allocation is dependent
upon certain valuations and other analyses which cannot be
completed prior to the merger and are required to make a
definitive allocation. The actual amounts recorded at the
completion of the merger may differ materially from the
information presented in these unaudited pro forma condensed
combined financial statements. The unaudited pro forma condensed
combined financial information does not give effect to any
potential cost savings or other operating efficiencies that
could result from the merger.
The unaudited pro forma condensed combined financial information
has been prepared for illustrative purposes only and is not
necessarily indicative of the consolidated financial position or
results of operations in future periods or the results that
actually would have been realized had Patriot and Magnum been a
combined company during the specified periods. The pro forma
adjustments are based on the preliminary information available
at the time of the preparation of this document.
NOTES TO
UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL
INFORMATION
1.
Basis of
Presentation
On April 2, 2008, Patriot entered into the merger agreement
with Magnum, Colt Merger Corporation, a wholly owned subsidiary
of Patriot, and the ArcLight Funds, acting jointly as the
stockholder representative. Upon the terms and conditions set
forth in the merger agreement, Magnum stockholders will receive
up to 11,901,729 shares of Patriot common stock on the date
of the merger. The Patriot common stock issuable pursuant to the
merger agreement represents approximately 31% of Patriot’s
outstanding common stock as of the date of the merger agreement
on a pro forma basis for the issuance in the merger. The
11,901,729 shares of Patriot common stock to be issued to
the holders of common stock of Magnum pursuant to the merger
agreement include the shares of Patriot common stock to be
issued in respect of the Magnum common stock issued upon the
conversion of the Magnum convertible notes.
Patriot will account for the merger as a purchase in accordance
with United States generally accepted accounting principles.
Under the purchase method of accounting, the assets and
liabilities of Magnum will be recorded as of the acquisition
date at their respective fair values.
The merger is intended to qualify as a tax-free reorganization
under the provisions of Section 368(a) of the Code. The
merger is subject to certain regulatory approvals and customary
closing conditions. The issuance of common stock is subject to
approval by the Patriot stockholders. Subject to these
conditions, it is anticipated that the merger will be completed
in the second or third quarter of 2008.
2.
Purchase
Price
At the closing date of the merger, all outstanding shares of
Magnum capital stock will automatically be canceled and holders
of outstanding shares of Magnum capital stock will receive a
total of up to 11,901,729 shares of Patriot common stock,
subject to reduction in certain limited circumstances.
As of March 31, 2008, the preliminary estimated total
purchase price of the proposed transaction, net of Magnum cash,
based on the average Patriot stock price for the five business
days surrounding and including the merger announcement date of
$50.57 is as follows (in thousands):
Fair value of Patriot common stock
$
601,870
Assumption of Magnum debt
136,139
Estimated Patriot transaction costs
9,600
Magnum cash
(33,357
)
Total preliminary estimated purchase price
$
714,252
3.
Patriot
Pro Forma Adjustments
Patriot’s historical financial statements have been
adjusted for the spin-off from Peabody. Pro Forma adjustments
related to the spin-off include the following:
(1) Reflects an increase to revenues (and related royalties
and taxes) related to the repricing of a coal supply agreement
to increase the price paid to Patriot to be more reflective of
the then current market pricing for similar quality coal at the
time of the spin-off.
(2) Reflects a decrease to operating costs and expenses for
the impact of Peabody’s agreement to assume certain of
Patriot’s retiree healthcare liabilities which totaled
$603.4 million as of December 31, 2007.
(3) Reflects reversal of historical expense related to
pension benefit obligations that were not assumed by Patriot.
(4) Reflects the non-cash transfer to Peabody of an
intangible asset related to a purchased contract right recorded
on Patriot’s historical financial statements in Investments
and Other Assets and historically
NOTES TO
UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL
INFORMATION — (Continued)
sourced from Patriot mining operations. As part of the spin-off,
Peabody retained the coal supply contract with the ultimate
customer.
(5) Reflects adjustment for estimated selling and
administrative costs for Patriot’s stand-alone management
and administrative structure and functions. Prior to the
spin-off, these services were provided by Peabody under various
agreements between Peabody and its subsidiaries, and the
historical amount was the result of an allocation of
Peabody’s overall selling and administrative costs. The
allocation of these Peabody costs was not deemed reasonable for
Patriot on a stand-alone basis and a pro forma amount was
estimated based on a detailed
build-up of
expected support costs by function for the Patriot operations as
a stand-alone business. The costs allocated to Patriot by
Peabody were higher than Patriot’s pro forma estimate
because the Peabody allocation reflected higher costs compared
to Patriot’s stand-alone estimate for areas such as
government relations, information systems development, office
space, executive incentive compensation and support departments
such as accounting, law, engineering and human resources. In
addition, the Peabody allocation included costs for major
strategy and growth initiatives, most of which did not directly
impact the Patriot operations.
(6) Reflects higher costs for surety bonds and letters of
credit based on anticipated rates for these instruments and on
Patriot’s requirements to secure financial obligations for
reclamation, workers’ compensation and post retirement
benefits. The historical financial statements reflect an
allocation of Peabody’s fees related to these guarantees.
(7) Reflects the reversal of the interest expense related
to the intercompany note payable to Peabody.
(8) Reflects tax impact of pro forma adjustments based on
the statutory rate adjusted for tax accounting as follows:
Expected tax statutory
$
30,877
State income tax
2,719
Percentage depletion
(11,845
)
Valuation allowance
(15,784
)
Pro forma tax impact
$
5,967
(9) The pro forma basic earnings per share are based on the
number of shares of common stock outstanding at the spin-off
(assuming the spin-off occurs on January 1, 2007) plus
shares issued in relation to an employee stock purchase plan in
the first half of the year.
4.
Patriot
and Magnum Combined Pro Forma Adjustments
Adjustments to Patriot and Magnum historical financial
statements included in the columns under the heading “Pro
Forma Adjustments” in the Condensed Combined Balance Sheet
and the Condensed Combined Statement of Operations relate to the
following:
(a) Reflects $200.0 million in aggregate principal
amount of 3.25% convertible senior notes due 2013 issued by
Patriot. See “The Merger — Financing
Arrangements — ArcLight Financing; Issuance of Patriot
Convertible Notes.” The proceeds from the notes will be
utilized to repay Magnum’s senior secured indebtedness
through the purchase transaction as well as to pay for related
fees and expenses (estimated at $9.9 million) and other
general corporate purposes. Magnum’s senior secured debt
was $136.1 million as of March 31, 2008.
NOTES TO
UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL
INFORMATION — (Continued)
(b) The estimated purchase price has been allocated to the
net tangible and intangible assets and liabilities acquired on a
preliminary basis as follows (in thousands):
Estimated purchase price:
$
714,252
Current assets
139,719
Property, plant, equipment and mine development
1,835,371
Other assets
5,077
Current below market coal sales supply contracts acquired
Magnum has certain actuarially-determined liabilities that will
be fair valued as part of purchase accounting based on
applicable assumptions at the date of the merger transaction.
Based on the current interest rate environment, the discount
rate utilized as part of the fair value assessment could be
significantly lower than the rate utilized at December 31,2007 thus creating a larger liability and higher expenses for
subsequent periods.
(c) Reflects transaction costs incurred in relation to the
merger and the registration of the equity securities.
Magnum’s transaction costs are partially based upon the
Patriot stock price and accordingly may change from the estimate
included in this pro forma information. Additionally, Patriot
incurred an upfront fee of $1.5 million in relation to the
ArcLight financing that was executed in connection with the
merger agreement but later terminated following completion of
the Patriot convertible note offering. See “TheMerger — Financing Arrangements — ArcLight
financing; Issuance of Patriot Convertible Notes.”
(d) Reflects the adjustment for accelerated vesting of
approximately 2.0 million Magnum stock awards upon
acquisition. Based on the assumption that participants will
elect the option of exchanging shares of Magnum common stock in
lieu of paying taxes due upon vesting, a portion of the
adjustment was recorded to accrued expenses for the tax
liability.
(e) Reflects the conversion of $100.0 million in
aggregate principal amount of the Magnum convertible notes into
shares of Magnum common stock immediately prior to the effective
time of the merger, based on a defined conversion price formula.
This conversion will result in an estimated additional
13.3 million shares of outstanding Magnum common stock. The
maximum of 11,901,729 shares of Patriot common stock to be
issued to Magnum stockholders pursuant to the merger agreement
includes the shares of Patriot common stock to be issued in
respect of the Magnum common stock issued upon the conversion of
the Magnum convertible notes.
(f) Reflects the elimination of certain income and expenses
related to transactions occurring between Patriot and Magnum,
including the reversal of a Patriot gain associated with the
sale of a coal purchase contract (and related elimination of a
receivable and deferred revenue) during the three months ended
March 31, 2008, the reversal of Patriot’s gain on sale
of certain coal reserves during the year ended December 31,2007, the elimination of coal sales and purchases, and the
elimination of royalty income.
(g) Reflects the write-off of Magnum’s deferred
longwall expenses to conform to Patriot’s accounting policy.
(h) Reflects the accretion resulting from adjustment of
coal sales supply contracts to fair value, which was determined
utilizing current market conditions, and the reversal of a gain
recognized on the restructuring of some of these coal supply
contracts.
NOTES TO
UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL
INFORMATION — (Continued)
(i) Reflects the increase in depreciation, depletion and
amortization in relation to the allocation of a portion of the
purchase price to long-lived assets.
(j) Reflects the reversal of Magnum’s historical
interest expense and amortization of deferred financing costs in
relation to borrowings under its credit facility.
(k) Reflects the pro forma interest expense on
Patriot’s 3.25% convertible senior notes due 2013 and the
amortization of deferred financing costs related to these
borrowings.
(l) Reflects adjustment to provision for income taxes on
combined Patriot and Magnum pro forma financials. The increase
in combined pro forma provision is primarily attributable to
Alternative Minimum Tax (AMT) resulting from IRC
Section 382 limitations on Magnum’s existing AMT net
operating losses. In addition, because the combined entity is in
a net deferred tax asset position, offset by a full valuation
allowance, there is no deferred tax provision reflected in the
unaudited pro forma condensed combined financial statements.
(m) Certain amounts in Magnum’s historical financial
statements have been reclassified to conform to Patriot’s
presentation.
(n) Pro forma basic earnings per share take into
consideration the 11,901,729 shares of Patriot common stock
to be issued to the Magnum stockholders in the merger.
(o) Pro forma diluted earnings per share take into
consideration the 11,901,729 shares of Patriot common stock
to be issued to the Magnum stockholders in the merger plus the
dilutive impact of restricted stock and restricted stock units
issued at spin-off and estimated participation in an employee
stock purchase plan. Stock options were assumed to have been
issued with a strike price equal to the estimated closing price
on the grant date (spin-off date) with a constant stock price
throughout the duration of the reporting period, and therefore
assumed to have no impact on diluted earnings per share. These
shares were anti-dilutive for Patriot stand-alone pro forma
calculations due to the net loss from continuing operations.
The merger will be accounted for by Patriot using the purchase
method of accounting. Under this method of accounting, the
purchase price will be allocated to the fair value of the net
assets acquired. The excess purchase price over the fair value
of the assets acquired, if any, will be allocated to goodwill.
Patriot common stock is listed for trading on the New York Stock
Exchange under the trading symbol “PCX.”No
public trading market exists for Magnum common stock. The
following table sets forth, for the periods indicated, the high
and low sales prices per share of Patriot common stock as
reported by the New York Stock Exchange Composite
Transaction Tape. Patriot did not declare any dividends on its
common stock for the periods indicated. For current price
information, Patriot stockholders are urged to consult publicly
available sources.
Patriot commenced trading on the New York Stock Exchange on
November 1, 2007. Prior to such date, no public trading
market existed for Patriot common stock.
The following table sets forth the high, low and closing prices
per share of Patriot common stock as reported by the New York
Stock Exchange Composite Transaction Tape on April 1, 2008,
the last full trading day prior to the public announcement of
the merger, and June 16, 2008, the latest practicable date
prior to the date of this proxy statement/prospectus.
Stockholders are urged to obtain current market quotations for
shares of Patriot common stock prior to making any decision with
respect to the approval of the issuance of shares of Patriot
common stock to the holders of Magnum common stock pursuant to
the merger agreement. No assurance can be given as to the market
prices of Patriot common stock at the closing of the merger. As
of the date of this proxy
statement/prospectus,
Patriot does not anticipate declaring any dividends in the near
term. The declaration and amount of future dividends, if any,
will be determined by Patriot’s board of directors and will
depend on its financial condition, earnings, capital
requirements, financial covenants, regulatory constraints,
industry practice and other factors its board of directors deems
relevant.
The following table sets forth information as of June 11,2008 with respect to persons or entities who are known to
beneficially own more than 5% of Patriot’s outstanding
common stock, each director of Patriot, each named executive
officer of Patriot, and all directors and executive officers of
Patriot as a group.
Amount and
Nature
of Beneficial
Percent of
Name and Address of Beneficial Owners
Ownership(1)
Class(2)
Chilton Investment Company, LLC(3)
3,966,032
14.823
%
FMR LLC
1,525,981
(4)
5.703
%
Neuberger Berman, LLC
1,441,974
(5)
5.389
%
Capital World Investors
1,398,360
(6)
5.226
%
J. Joe Adorjan
1,500
*
Joseph W. Bean
8,711
*
B.R. Brown
719
*
Charles A. Ebetino, Jr.
16,852
*
Irl F. Engelhardt
157,715
(7)
*
John E. Lushefski
—
Jiri Nemec
21,284
*
Michael M. Scharf
—
Mark N. Schroeder
18,506
*
Robert O. Viets
3,100
*
Richard M. Whiting
90,712
*
All directors and executive officers as a group (12 people)
325,073
1.215
%
(1)
Amounts shown are based on the latest available filings on
Form 13G or other relevant filings made with the SEC.
Beneficial ownership is determined in accordance with the rules
of the SEC and includes voting and investment power with respect
to shares. Unless otherwise indicated, the persons named in the
table have sole voting and sole investment control with respect
to all shares beneficially owned; includes shares of restricted
stock that remain unvested as of June 11, 2008 as follows:
Mr. Joseph W. Bean, 5,500 shares; Mr. Charles A.
Ebetino, Jr., 12,000 shares; Mr. Irl F. Engelhardt,
17,996 shares; Mr. Jiri Nemec, 17,500 shares;
Mr. Mark N. Schroeder, 12,000 shares; Mr. Richard
M. Whiting, 46,667 shares.
(2)
An asterisk (*) indicates that the applicable person
beneficially owns less than one percent of the
outstanding shares.
(3)
Chilton Investment Company, LLC is located at 1266 East Main
St., 7 Floor, Stamford, CT06902.
(4)
FMR LLC, with an address at 82 Devonshire St., Boston, MA02109,
has the sole power to vote 474 shares and the sole power to
dispose 1,525,981 shares.
(5)
Neuberger Berman Inc. and affiliated entities, with an address
at 605 Third Avenue, New York, NY10158, reported sole and
shared voting and dispositive power as follows: Neuberger Berman
Inc., sole voting power with respect to 1,176,447 shares,
shared power to dispose with respect to 1,441,974 shares;
and Neuberger Berman LLC, sole voting power with respect to
1,176,447 shares, shared power to dispose with respect to
1,441,974 shares.
(6)
Capital World Investors, with an address at 333 South Hope St.,
Los Angeles, CA90071, has the sole power to vote
265,300 shares and the sole power to dispose
1,398,360 shares.
(7)
Includes 1,952 shares of Common Stock held in Mr. Irl
F. Engelhardt’s 401(k) plan and 440 shares of Common
Stock held by Mr. Irl F. Engelhardt’s spouse.
The following table sets forth information as of June 11,2008 with respect to persons or entities who are known to
beneficially own more than 5% of Patriot’s outstanding
common stock, each director of Patriot, each named executive
officer of Patriot, and all directors and executive officers of
Patriot as a group, and indicates the percentage ownership of
each such person after giving effect to the issuance of Patriot
common stock to the holders of Magnum common stock pursuant to
the merger agreement.
Amount and
Nature
of Beneficial
Percent of
Name and Address of Beneficial Owners
Ownership(1)
Class(2)(8)
Chilton Investment Company, LLC(3)
3,966,032
10.258
%
FMR LLC
1,525,981
(4)
3.947
%
Neuberger Berman, LLC
1,441,974
(5)
3.730
%
Capital World Investors
1,398,360
(6)
3.617
%
J. Joe Adorjan
1,500
*
Joseph W. Bean
8,711
*
B.R. Brown
719
*
Charles A. Ebetino, Jr.
16,852
*
Irl F. Engelhardt
157,715
(7)
*
John E. Lushefski
—
Jiri Nemec
21,284
*
Michael M. Scharf
—
Mark N. Schroeder
18,506
*
Robert O. Viets
3,100
*
Richard M. Whiting
90,712
*
All directors and executive officers as a group (12 people)
325,073
0.841
%
(1)
Amounts shown are based on the latest available filings on
Form 13G or other relevant filings made with the SEC.
Beneficial ownership is determined in accordance with the rules
of the SEC and includes voting and investment power with respect
to shares. Unless otherwise indicated, the persons named in the
table have sole voting and sole investment control with respect
to all shares beneficially owned; includes shares of restricted
stock that remain unvested as of June 11, 2008 as follows:
Mr. Joseph W. Bean, 5,500 shares; Mr. Charles A.
Ebetino, Jr., 12,000 shares; Mr. Irl F. Engelhardt,
17,996 shares; Mr. Jiri Nemec, 17,500 shares;
Mr. Mark N. Schroeder, 12,000 shares; Mr. Richard
M. Whiting, 46,667 shares.
(2)
An asterisk (*) indicates that the applicable person
beneficially owns less than one percent of the outstanding
shares.
(3)
Chilton Investment Company, LLC is located at 1266 East Main
St., 7 Floor, Stamford, CT06902.
(4)
FMR LLC, with an address at 82 Devonshire St., Boston, MA02109,
has the sole power to vote 474 shares and the sole power to
dispose 1,525,981 shares.
(5)
Neuberger Berman Inc. and affiliated entities, with an address
at 605 Third Avenue, New York, NY10158, reported sole and
shared voting and dispositive power as follows: Neuberger Berman
Inc., sole voting power with respect to 1,176,447 shares,
shared power to dispose with respect to 1,441,974 shares;
and Neuberger Berman LLC, sole voting power with respect to
1,176,447 shares, shared power to dispose with respect to
1,441,974 shares.
(6)
Capital World Investors, with an address at 333 South Hope St.,
Los Angeles, CA90071, has the sole power to vote
265,300 shares and the sole power to dispose
1,398,360 shares.
(7)
Includes 1,952 shares of Common Stock held in Mr. Irl
F. Engelhardt’s 401(k) plan and 440 shares of Common
Stock held by Mr. Irl F. Engelhardt’s spouse.
Percentage of class based on an aggregate of
38,662,106 shares of Patriot common stock outstanding as of
immediately after consummation of the merger (representing the
sum of 26,760,377 shares of Patriot common stock
outstanding as of the date of the merger agreement and
11,901,729 shares of Patriot common stock issued pursuant
to the merger agreement).
Set forth below are the names, ages as of May 29, 2008 and
current positions of Patriot’s executive officers and
directors. Executive officers are appointed by, and hold office
at, the discretion of Patriot’s board of directors.
Name
Age
Positions
Executive Officers
Richard M. Whiting
53
President, Chief Executive Officer & Director
Irl F. Engelhardt
61
Chairman of the Board of Directors, Executive Advisor and
Director
Mark N. Schroeder
51
Senior Vice President & Chief Financial Officer
Jiri Nemec
53
Senior Vice President & Chief Operating Officer
Charles A. Ebetino, Jr.
55
Senior Vice President — Corporate Development
Joseph W. Bean
46
Senior Vice President, General Counsel & Corporate Secretary
Michael V. Altrudo
60
Senior Vice President & Chief Marketing Officer
Other Directors
J. Joe Adorjan
69
Director
Michael M. Scharf
62
Director
B.R. Brown
75
Director
John E. Lushefski
52
Director
Robert O. Viets
64
Director
Richard
M. Whiting
President,
Chief Executive Officer and Director
Richard M. Whiting, age 53, serves as President &
Chief Executive Officer and as a director. He has been the
President & Chief Executive Officer as well as a
director of Patriot since October 2007. Whiting joined
Peabody’s predecessor company in 1976 and has held a number
of operations, sales and engineering positions both at the
corporate offices and at field locations. Prior to the spin-off,
Whiting was Peabody’s Executive Vice President &
Chief Marketing Officer from May 2006 to 2007, with
responsibility for all marketing, sales and coal trading
operations, as well as Peabody’s joint venture
relationships. He previously served as President &
Chief Operating Officer and as a director of Peabody from 1998
to 2002. He also served as Executive Vice President —
Sales, Marketing & Trading from 2002 to 2006, and as
President of Peabody COALSALES Company from 1992 to 1998.
Whiting is the former Chairman of National Mining
Association’s Safety and Health Committee, the former
Chairman of the Bituminous Coal Operators’ Association, and
a past board member of the National Coal Council. He is
currently a director of the Society of Mining Engineers
Foundation.
Whiting holds a Bachelor of Science degree in mining engineering
from West Virginia University. His term as a director of Patriot
expires in 2010.
Chairman
of the Board of Directors, Executive Advisor and
Director
Irl F. Engelhardt, age 61, serves as Chairman of the Board
of Directors and Executive Advisor. Prior to the spin-off,
Engelhardt served as Chairman and as a director of Peabody
Energy Corporation from 1998 until October 2007. Engelhardt also
served as Chief Executive Officer of Peabody from 1998 to 2005
and as Chief Executive Officer of a predecessor of Peabody from
1990 to 1998. He also served as Chairman of a predecessor of
Peabody from 1993 to 1998 and as President from 1990 to 1995.
After joining a predecessor of Peabody in 1979, he held various
officer level positions in the executive, sales, business
development and administrative areas, including Chairman of
Peabody Resources Ltd. (Australia) and Chairman of Citizens
Power LLC. Engelhardt also served as Co-Chief Executive Officer
and executive director of The Energy Group from February 1997 to
May 1998, Chairman of Cornerstone Construction &
Materials, Inc. from September 1994 to May 1995 and Chairman of
Suburban Propane Company from May 1995 to February 1996. He
also served as a director and Group Vice President of Hanson
Industries from 1995 to 1996. He also previously served as
Chairman of the National Mining Association (NMA), the Coal
Industry Advisory Board of the International Energy Agency, the
Center for Energy and Economic Development and the Coal
Utilization Research Council, as well as Co-Chairman of the Coal
Based Generation Stakeholders Group. He serves on the Boards of
Directors of Valero Energy Corporation and The Williams
Companies, Inc., and is Chair of The Federal Reserve Bank of
St. Louis. His term as a director of Patriot expires in
2010.
Mark N.
Schroeder
Senior
Vice President & Chief Financial Officer
Mark N. Schroeder, age 51, serves as Senior Vice
President & Chief Financial Officer. Prior to the
spin-off, Schroeder held several key management positions in his
career at Peabody which began in 2000. These positions include
President of Peabody China (2006 to 2007), Vice President of
Materials Management (2004 to 2006), Vice President of Business
Development (2002 to 2004) and Vice President and
Controller (2000 to 2002). He has more than 27 years of
business experience, including as Chief Financial Officer of
Behlmann Automotive Group (1997 to 1998), Chief Financial
Officer of Franklin Equity Leasing Company (from 1998 to
2000) and financial management positions with McDonnell
Douglas Corporation and Ernst & Young, LLP.
Schroeder is a certified public accountant and holds a Bachelor
of Science degree in business administration from Southern
Illinois University — Edwardsville.
Jiri
Nemec
Senior
Vice President & Chief Operating Officer
Jiri Nemec, age 53, serves as Senior Vice
President & Chief Operating Officer. Nemec, a
20-year
Peabody veteran, has extensive experience with Peabody’s
eastern U.S. operations. Prior to the spin-off, Nemec was
Group Vice President for Peabody’s U.S. Eastern
Operations from 2005 to 2007. Nemec also served as Group
Executive for Appalachian Operations from 2001 to 2005 and Group
Executive for Midwest Operations from 1999 to 2001.
Other previous positions with Peabody include Group Executive
for Northern Appalachian Operations and Operations Manager for
the Federal No. 2 Operating Unit. Nemec holds a Bachelor of
Science degree in mining engineering from Pennsylvania State
University and a Master of Business Administration degree from
Washington University in St. Louis. He also holds
professional engineering certifications in West Virginia and
Pennsylvania.
Charles
A. Ebetino, Jr.
Senior
Vice President — Corporate Development
Charles A. Ebetino, Jr., age 55, serves as Senior Vice
President — Corporate Development. Prior to the
spin-off, Ebetino was Senior Vice President — Business
and Resource Development for Peabody since
May 2006. Ebetino also served as Senior Vice
President — Market Development for Peabody’s
sales and marketing subsidiary from 2003 to 2006. Ebetino joined
Peabody in 2003 after more than two decades with American
Electric Power Company, Inc. (AEP) where he served in a number
of management roles in the fuel procurement and supply group,
including Senior Vice President of fuel supply and
President & Chief Operating Officer of AEP’s coal
mining and coal-related subsidiaries from 1993 until 2002. In
2002, he formed Arlington Consulting Group, Ltd., an energy
industry consulting firm.
Ebetino is a past board member of NMA, former Chairman of the
NMA Environmental Committee, a former Chairman and Vice Chairman
of the Edison Electric Institute’s Power Generation Subject
Area Committee, a former Chairman of the Inland Waterway Users
Board, and a past board member and president of the Western Coal
Transportation Association. Ebetino has a Bachelor of Science
degree in civil engineering from Rensselaer Polytechnic
Institute. He also attended the New York University School of
Business for graduate study in finance.
Joseph W.
Bean
Senior
Vice President, General Counsel & Corporate
Secretary
Joseph W. Bean, age 46, serves as Senior Vice President,
General Counsel & Corporate Secretary. Prior to the
spin-off, Bean served as Peabody’s Vice
President & Associate General Counsel and Assistant
Secretary (2005 to 2007) and as Senior Counsel (2001 to
2005). During his tenure at Peabody, Bean directed
Patriot’s legal and compliance activities related to
mergers and acquisitions, corporate governance, corporate
finance and securities matters.
Bean has 20 years of corporate law experience, including
16 years as in-house legal counsel. Bean was counsel and
assistant corporate secretary for The Quaker Oats Company prior
to its acquisition by PepsiCo in 2001 and assistant general
counsel for Pet Incorporated prior to its 1995 acquisition by
Pillsbury. Bean also served as a corporate law associate with
the law firms of Mayer, Brown & Platt in Chicago and
Thompson & Mitchell in St. Louis. Bean holds
a Bachelor of Arts degree from the University of Illinois and a
Juris Doctorate from Northwestern University School of Law.
Michael
V. Altrudo
Senior
Vice President & Chief Marketing Officer
Michael V. Altrudo, age 60, serves as Senior Vice
President & Chief Marketing Officer. Prior to the
spin-off, Altrudo served as marketing advisor to Peabody’s
COALTRADE International subsidiary since 2005, with executive
advisory responsibilities for its international sales,
marketing, trading and brokerage activities. Altrudo previously
served as President of Peabody COALTRADE International (2004 to
2005), Senior Vice President, International Sales &
Trading, for Peabody COALSALES Company (2004) and Senior
Vice President of Sales & Marketing for Appalachia
(1999 to 2004). Altrudo has 27 years of coal industry
experience, including sales, marketing, trading and brokerage in
the Appalachian steam coal markets as well as sales and
purchases of Appalachian metallurgical coal. He has extensive
sales experience in both utility and industrial markets. Prior
to joining Peabody in 1999, Altrudo held executive level sales
and marketing positions with Zeigler Coal Holding Company,
Drummond Company, Nerco Coal Company and Derby Coal Company.
Altrudo holds a Bachelor of Science degree in finance from
Duquesne University.
J. Joe
Adorjan
Director
J. Joe Adorjan, age 69, has been a director of Patriot
since November 2007. Adorjan is currently chairman of Adven
Capital, a private equity firm and is a partner of Stonington
Partners Inc., a New York based private equity firm. He has
served in these positions since February 2001. From 1995 through
December 2000, Adorjan served as chairman and chief
executive officer of Borg-Warner Security Corporation, a
provider of security services. Prior to joining Borg-Warner,
Adorjan served in a number of senior executive capacities with
Emerson Electric Co. and ESCO Electronics Corporation, an
independent New York Stock
Exchange-listed corporation that was formed in 1990 with the
spin-off of Emerson’s government and defense business. He
was chairman and chief executive officer of ESCO from 1990 to
1992, when he rejoined Emerson as president. Adorjan originally
joined Emerson in 1968 and served in a number of senior
executive capacities, including executive vice president of
finance, international, technology and corporate development.
Adorjan has a Bachelors and Masters degree in economics from
Saint Louis University. Adorjan currently serves as a director
for Goss Graphics Systems, Inc., a manufacturer of web offset
newspaper press systems, and is chairman of Bates Sales Company,
a distributor of industrial power transmission equipment and
parts. He is also a member of the board of directors of
Thermadyne Holdings Corporation, a marketer of cutting and
welding products and accessories, where he serves as lead
director and as a member of the audit and compensation
committees. He also serves on the board of trustees of Saint
Louis University and Ranken Technical College and is Chairman of
The Hungarian-Missouri Educational Partnership. Adorjan’s
term as a director expires in 2011.
Michael
M. Scharf
Director
Michael M. Scharf, age 62, has been a director of Patriot
since November 2007. Scharf is Senior Vice President &
Chief Financial Officer of Bunge North America, the North
American operating arm of Bunge Limited, a global supplier of
agricultural commodities and food products. He has served in
this capacity since joining Bunge in 1990. He was previously
Senior Vice President and Chief Financial Officer of Peabody
Holding Company, Inc.
(1978-1990)
and Tax Manager at Arthur Andersen & Co.
(1969-1978).
Scharf has a degree in Accounting from Wheeling Jesuit
University and is a certified public accountant. Scharf
represents Bunge’s interests with multiple biofuels joint
ventures, and is currently a director of Renewable Energy Group
(biodiesel), Bunge-Ergon Vicksburg (ethanol), Biofuels Company
of America (biodiesel), and Southwest Iowa Renewable Energy
(ethanol). Scharf’s term as a director expires in 2011.
B. R.
Brown
Director
B. R. Brown, age 75, has been a director of Patriot
since October 2007. Brown is the retired Chairman, President and
Chief Executive Officer of CONSOL Energy, Inc., a domestic coal
and gas producer and energy services provider. He served as
Chairman, President and Chief Executive Officer of CONSOL and
predecessor companies from 1978 to 1998. He also served as a
Senior Vice President of E.I. du Pont de Nemours &
Co., CONSOL’s controlling stockholder, from 1981 to 1991.
Before joining CONSOL, Brown was a Senior Vice President at
Conoco. From 1990 to 1995, he also was President and Chief
Executive Officer of Remington Arms Company, Inc.
Brown has a degree in economics from the University of Arkansas.
Brown has previously served as Director and Chairman of the
Bituminous Coal Operators Association Negotiating Committee,
Chairman of the National Mining Association, and Chairman of the
Coal Industry Advisory Board of the International Energy Agency.
Brown was a director of Peabody Energy Corporation from December
2003 until October 2007, when he resigned to join Patriot’s
Board of Directors. He is also a director of Delta
Trust & Bank and Remington Arms Company, Inc.
Brown’s term as a director expires in 2009.
John E.
Lushefski
Director
John E. Lushefski, age 52, has been a director of Patriot
since October 2007. Lushefski has been a senior consultant
providing strategic, business development and financial advice
to public and private companies since July 2005. He has
substantial coal industry experience and a global background in
treasury, tax, accounting, strategic planning, information
technology, human resources, investor relations and business
development. From December 2004 until July 2005, Lushefski was
engaged in the development of his current
consulting business. From 1996 until December 2004, he served as
Chief Financial Officer of Millennium Chemicals Inc., a New York
Stock Exchange-listed international chemicals manufacturer that
was spun off from Hanson PLC. He also served as Senior Vice
President & Chief Financial Officer of Hanson
Industries Inc. from 1995 to 1996, and as Vice
President & Chief Financial Officer of Peabody Holding
Company, Inc. from 1991 to 1995. Prior to joining Hanson in
1985, he was an Audit Manager with Price Waterhouse LLP, New
York.
Lushefski is a certified public accountant with a B.S. in
Business Management/Accounting from Pennsylvania State
University. He also has served as a director of Suburban
Propane, LP
(1996-1999)
and Smith Corona Corporation
(1995-1996).
Lushefski’s term as a director expires in 2009.
Robert O.
Viets
Director
Robert O. Viets, age 64, has been a director of Patriot
since November 2007. Viets is the former President, Chief
Executive Officer and Director of CILCORP, a New York Stock
Exchange-listed holding company which owned a regulated electric
and natural gas utility (CILCO) in central Illinois. Viets
served in this capacity from 1988 until 1999, when CILCORP was
acquired by AES. He also served as Chief Financial Officer
during his
26-year
career at CILCORP. Prior to joining CILCORP, Viets was an
auditor with Arthur Andersen & Co. Following his
career at CILCORP, Viets has provided consulting services to
regulated energy and communication businesses.
Viets has a degree in economics from Washburn University
(Topeka) and a law degree from Washington University School of
Law. He is also a certified public accountant. He has served as
a director of, among other companies, RLI Corp., a specialty
property and casualty insurer (1993-present); Consumers Water
Company, a Maine-based regulated water utility
(1996-1998);
and Philadelphia Suburban Corp., now Aqua America, Inc.
(1998-2001);
including serving as a member of the Audit Committees at RLI
Corp. and Philadelphia Suburban Corp. Viets’ term as a
director expires in 2010.
Additional
Directors to be Appointed at the Effective Time of the
Merger
If the merger occurs, pursuant to the voting agreement, at the
effective time of the merger Patriot’s board of directors
will be expanded from seven to nine and following individuals
are expected to be appointed to the board.
Robb E.
Turner
Director
Robb E. Turner, age 45, is, and has been since 2000, a
co-founder of and senior partner of ArcLight Capital Holdings,
LLC, a private equity firm specializing in energy investments
and has eighteen years of energy finance, corporate finance, and
public and private equity investment experience. Prior to
forming ArcLight, Mr. Turner founded and built Berenson
Minella & Company’s energy advisory practice.
From 1990 to 1998, Mr. Turner held senior positions at
Smith Barney, Schroders, Wasserstein Perella and Kidder,
Peabody & Co., where he was responsible for advising
on buyouts, corporate finance structures and mergers and
acquisitions.
Mr. Turner has a Bachelor of Science in Engineering from
the U.S. Military Academy at West Point and a Master of
Business Administration from Harvard Business School.
Mr. Turner is a director in several privately held
companies in which affiliates of ArcLight Capital Holdings have
an interest. Mr. Turner is also on the board of directors
of Venture Production plc, a public company listed on the London
Stock Exchange (LON: VPC) engaged in oil and gas production,
Mainline Management LLC, the general partner of Buckeye GP
Holdings L.P. and Buckeye GP LLC, the general partner of Buckeye
Partners, L.P., a publicly-traded limited partnership (NYSE:
BPL) that owns and operates independent U.S. refined
petroleum products and pipeline systems and the Friends 4
Michael Foundation.
John F. Erhard, age 33, is a principal of ArcLight Capital
Holdings, LLC, a private equity firm specializing in energy
investments, with whom he has held several positions since
joining in 2001. Prior to joining ArcLight, he was an Associate
at Blue Chip Venture Company, a venture capital firm focused on
the information technology sector. Mr. Erhard began his
career at Schroders, where he focused on mergers and
acquisitions.
Mr. Erhard has a Bachelor of Arts in Economics from
Princeton University and a Juris Doctor from Harvard Law School.
Mr. Erhard is an officer in several privately held
companies in which affiliates of ArcLight Capital Holdings have
an interest. He is a director of Mainline Management LLC and
Buckeye GP LLC.
Additional
Executive Officer to be Added at the Effective Time of the
Merger
Patriot has entered into an employment agreement with Paul H.
Vining, the President and Chief Executive Officer of Magnum,
that provides that if the merger occurs, Mr. Vining will
serve as President and Chief Operating Officer of Patriot. For
details regarding the employment agreement entered into by
Patriot and Mr. Vining, see “The Merger —
Interests of Certain Persons in the Transaction —
Employment Agreement.”
Paul H.
Vining
President
and Chief Operating Officer
Paul H. Vining, age 53, is, and has been since 2006,
Magnum’s President and Chief Executive Officer and also
serves as a member of Magnum’s board of directors. Before
joining Trout (currently a subsidiary of Magnum) as President
and Chief Executive Officer in August 2005, Mr. Vining was
Senior Vice President of Marketing and Trading at Arch Coal, a
position he held since June 2005. Prior to that, from 2002 to
2006, he was President of Ellett Valley CC Inc., a coal trading,
marketing and consulting company based in Williamsburg,
Virginia. From 1999 to 2002, Mr. Vining was Executive Vice
President for Sales and Trading at Peabody. From 1996 to 1999,
he was President of Peabody COALTRADE. From 1995 to 1996,
Mr. Vining was Senior Vice President of Peabody COALSALES.
Earlier in his career, he held leadership positions with Guasare
Coal America, Agipcoal USA, Island Creek Coal and A.T. Massey
Coal. Mr. Vining holds a B.S. in chemistry from the College
of William and Mary in Williamsburg, Virginia, and a B.S. in
mineral engineering and an M.S. in extractive metallurgy from
Columbia University’s Henry Krumb School of Mines in New
York.
Patriot is a leading producer of coal in the eastern United
States, with operations and coal reserves in Appalachia and the
Illinois Basin. Patriot is also a leading U.S. producer of
metallurgical quality coal. Patriot and its predecessor
companies have operated in these regions for more than
50 years. Its operations consist of ten company-operated
mines and numerous contractor-operated mines serviced by eight
coal preparation facilities, with one in northern West Virginia,
four in southern West Virginia and three in western Kentucky.
Patriot ships coal to electric utilities, industrial users and
metallurgical coal customers via third-party loading facilities
and multiple rail and river transportation routes.
In the first three months of 2008, Patriot sold 5.1 million
tons of coal, of which 71% was sold to domestic electric
utilities and 29% was sold to domestic and international steel
producers. In 2007, Patriot sold 22.1 million tons of coal,
of which 77% was sold to domestic electric utilities and 23% was
sold to domestic and global steel producers. Patriot controls
approximately 1.3 billion tons of proven and probable coal
reserves. Its proven and probable coal reserves include premium
coking coal and medium and
high-Btu
steam coal, with low, medium and high sulfur content. Patriot
believes that it is well-positioned to meet customers’
increasing demand for various products, given the diverse coal
qualities available in its proven and probable coal reserves.
Prior to the spin-off, Patriot and its subsidiaries were
subsidiaries of Peabody. Peabody was founded in 1883 as a retail
coal supplier, entering the mining business in 1888 with the
opening of its first coal mine in Illinois. Many of
Patriot’s subsidiaries were acquired during the 1980s and
1990s, when Peabody grew through expansion and acquisition,
completing the acquisitions of the West Virginia coal properties
of ARMCO Steel and Eastern Associated Coal Corp., which included
seven operating mines and substantial low-sulfur coal reserves
in West Virginia.
On October 31, 2007, Patriot was spun-off from Peabody,
including coal assets and operations in Appalachia and the
Illinois Basin. The spin-off was accomplished through a dividend
of all outstanding shares of Patriot, and Patriot is now an
independent, public company traded on the New York Stock
Exchange (symbol PCX). Distribution of the Patriot stock to
Peabody’s stockholders occurred on October 31, 2007,
at a ratio of one share of Patriot stock for every
10 shares of Peabody stock.
Mining
Operations
Patriot’s mining operations and coal reserves are as
follows:
•
Appalachia. In southern West Virginia, Patriot
has five company-operated mines and numerous contractor-operated
mines, serviced by four coal preparation plants. These
operations and related infrastructure are located in Boone and
Kanawha counties. In northern West Virginia, Patriot has one
company-operated mine, serviced by a preparation plant and
related infrastructure. These operations are located in
Monongalia County. Patriot sold 14.4 million and
3.2 million tons of coal in the year ended
December 31, 2007 and the three months ended March 31,2008, respectively. As of December 31, 2007, it controlled
586 million tons of proven and probable coal reserves in
Appalachia, of which 283 million tons were assigned to
current operations.
•
Illinois Basin. In the Illinois Basin, Patriot
has four company-operated mines, serviced by three preparation
plants. These operations and related infrastructure are located
in Union and Henderson counties in western Kentucky. Patriot
sold 7.7 million and 1.9 million tons of coal in the
year ended December 31, 2007 and the three months ended
March 31, 2008, respectively. As of December 31, 2007,
it controlled 676 million tons of proven and probable coal
reserves in the Illinois Basin, of which 131 million tons
were assigned to current operations.
The Big Mountain preparation plant is located in southern West
Virginia and is sourced by one company-operated mine, Big
Mountain No. 16, and multiple contractor-operated mines.
Coal is produced utilizing continuous mining methods. The coal
is sold on the steam market and is transported via the CSX
railroad. All hourly employees at the company-owned and operated
facilities are represented by the United Mine Workers of America
(UMWA). Coal is produced from the Coalburg seam, with average
thickness of eight feet.
Rocklick
The Rocklick preparation plant is located in southern West
Virginia and is sourced by one company-operated mine, Harris
No. 1, and multiple contractor-operated mines. Coal at
Harris is produced utilizing longwall and continuous mining
methods, while Patriot’s contractor-operated mines utilize
continuous mining methods. All Harris coal is sold on the
metallurgical market and most of the contractor processed coal
is sold on the steam market. Rocklick has the capability to
transport coal on both the CSX and the Norfolk Southern
railroads. All hourly employees at the company-owned and
operated facilities are represented by the UMWA. Metallurgical
coal is produced from the Eagle seam, with average thickness of
three feet if only the lower split is mined, or 5 feet if
both seam splits are mined. Steam coal is produced from the
Winifrede seam, with average thickness of four feet, or surface
mined from the Kittanning, Stockton, Clarion and Coalburg seams,
with an 18-to-1 average overburden to coal ratio. In 2006,
Harris transitioned to the James Creek reserves, allowing it to
access additional metallurgical coal. Patriot is developing the
new Black Oak mine as it nears the end of the James Creek
reserves.
Wells
The Wells preparation plant is located in southern West Virginia
and is sourced by one company-operated mine, Rivers Edge, and
multiple contractor-operated mines. Coal is produced utilizing
continuous mining methods. All coal is currently sold on the
metallurgical market and is transported by the CSX railroad.
Steam coal can also be produced and processed at this operation.
All hourly employees at the company-owned and operated
facilities are represented by the UMWA. Rivers Edge mine
produces coal from the Powellton seam, with average thickness of
three feet. Coal is produced from the newly developed Black
Stallion contract mine in the Eagle seam, with average thickness
of five feet. Contract mines produce coal from the No. 2
Gas and Dorothy seams, both with average thickness of four feet.
Kanawha
Eagle
The Kanawha Eagle operation is located in southern West
Virginia. The Kanawha Eagle preparation plant is sourced by two
company-owned mines utilizing continuous mining methods.
Processed coal is sold on both metallurgical and steam markets
and is transported via the CSX railroad and via barge on the
Kanawha River. Coal is produced from the Coalburg seam, with
average thickness of six feet, and the Eagle seam, with average
thickness of four feet. The labor force is contracted through a
third party and is not represented by a union.
Federal
The Federal preparation plant is located in northern West
Virginia and is sourced by one company-operated mine, Federal
No. 2, utilizing longwall and continuous mining methods.
All coal is sold on the
high-Btu
steam market and is transported via the CSX and Norfolk Southern
railroads. All hourly employees are represented by the UMWA.
Coal is produced from the Pittsburgh seam, with average
thickness of seven feet.
The Highland preparation plant is located in western Kentucky
and is sourced by one company-operated mine, Highland
No. 9, utilizing continuous mining methods. All coal is
sold on the steam market and is transported via barge on the
Ohio River. All hourly employees are represented by the UMWA.
Coal is produced from the Kentucky No. 9 seam, with average
thickness of five feet.
Bluegrass
The Bluegrass preparation plant is located in western Kentucky
and is sourced by two company-operated mines, Freedom and
Patriot. Coal at Freedom is produced utilizing underground
continuous mining methods, while coal at Patriot is produced
utilizing the
truck-and-shovel
surface mining method. All coal is sold on the steam market and
is transported via truck and barge on the Green River. None of
the employees are represented by a union. Coal is produced from
the Kentucky No. 9 seam, with average thickness of four
feet when mined using the underground mining method, with a
15-to-1 overburden to coal ratio when mined by the surface
mining method.
Dodge
Hill
The Dodge Hill preparation plant is located in western Kentucky
and is sourced by one company-operated mine, utilizing
continuous mining methods. All coal is sold on the steam market
and transported via barge on the Ohio River. None of the
employees are represented by a union. Coal is produced from the
Kentucky No. 6 seam, with average thickness of four feet.
Coal
Reserves
Patriot had an estimated 1.3 billion tons of proven and
probable coal reserves as of December 31, 2007 located in
Appalachia and the Illinois Basin. Nine percent of
Patriot’s proven and probable coal reserves, or just over
110 million tons, are compliance coal and 91% are
non-compliance coal. Patriot owns approximately 51% of these
reserves and lease property containing the remaining 49%.
Compliance coal is defined by Phase II of the Clean Air Act
as coal having sulfur dioxide content of 1.2 pounds or less per
million Btu. Electricity generators are able to use coal that
exceeds these specifications by using emissions reduction
technology, using emission allowance credits or blending higher
sulfur coal with lower sulfur coal.
Below is a table summarizing the locations and reserves of
Patriot’s major operating regions.
Reserves have been adjusted to take into account recoverability
factors in producing a saleable product.
Reserves are defined by SEC Industry Guide 7 as that part of a
mineral deposit which could be economically and legally
extracted or produced at the time of the reserve determination.
Proven and probable coal reserves are defined by SEC Industry
Guide 7 as follows:
•
Proven (Measured) Reserves are reserves for which
(a) quantity is computed from dimensions defined by
outcrops, trenches, workings or drill holes; grade
and/or
quality are computed from the results of detailed sampling and
(b) the sites for inspection, sampling and measurement are
spaced so close and the geographic character is so well defined
that size, shape, depth and mineral content of coal reserves are
well-established.
Probable (Indicated) Reserves are reserves for which quantity
and grade
and/or
quality are computed from information similar to that used for
proven (measured) reserves, but the sites for inspection,
sampling and measurement are farther apart or are otherwise less
adequately spaced. The degree of assurance, although lower than
that for proven (measured) reserves, is high enough to assume
continuity between points of observation.
Patriot’s estimates of proven and probable coal reserves
are established within these guidelines. Patriot does not
include sub-economic coal within these proven and probable
reserve estimates. Proven reserves require the coal to lie
within one-quarter mile of a valid point of measure or point of
observation, such as exploratory drill holes or previously mined
areas. Estimates of probable reserves may lay more than
one-quarter mile, but less than three-quarters of a mile, from a
point of thickness measurement. Estimates within the proven
category have the highest degree of assurance, while estimates
within the probable category have only a moderate degree of
geologic assurance. Further exploration is necessary to place
probable reserves into the proven reserve category.
Patriot’s active properties generally have a much higher
degree of reliability because of increased drilling density.
Reserve estimates as of December 31, 2007 were prepared by
Patriot’s Director of Geology, a certified Geologist, by
updating the December 31, 2006 estimates provided by
Peabody and an outside consultant. Select reserve areas were
subsequently evaluated by Alpha Engineering Services, Inc., an
outside engineering consultant and updated to reflect increased
ownership and additional available drilling information.
Estimates of Patriot’s coal reserves are periodically
reviewed by independent mining and geologic consultants. The
most recent of these reviews by John T. Boyd Company, which was
completed in January 2007, included a review of the procedures
used to prepare Patriot’s internal estimates, verification
of the accuracy of selected property reserve estimates and
retabulation of reserve groups according to standard
classifications of reliability. The study and subsequent work
that was performed confirmed that Patriot had approximately
1.3 billion tons of proven and probable reserves as of
December 31, 2007.
Patriot’s reserve estimates are predicated on information
obtained from an ongoing drilling program, which totals more
than 11,000 individual drill holes. Patriot compiles data from
individual drill holes in a computerized drill-hole database
from which the depth, thickness and, where core drilling is
used, the quality of the coal are determined. The density of the
drill pattern determines whether the reserves will be classified
as proven or probable. The reserve estimates are then input into
a computerized land management system, which overlays the
geologic data with data on ownership or control of the mineral
and surface interests to determine the extent of Patriot’s
proven and probable coal reserves in a given area. The land
management system contains reserve information, including the
quantity and quality (where available) of coal reserves as well
as production rates, surface ownership, lease payments and other
information relating to Patriot’s coal reserves and land
holdings. Patriot periodically updates its reserve estimates to
reflect production of coal from the reserves and new drilling or
other data received. Accordingly, reserve estimates will change
from time to time to reflect mining activities, analysis of new
engineering and geologic data, changes in reserve holdings,
modification of mining methods and other factors.
Patriot’s estimate of the economic recoverability of its
proven and probable coal reserves is based upon a comparison of
unassigned reserves to assigned reserves currently in production
in the same geologic setting to determine an estimated mining
cost. These estimated mining costs are compared to existing
market prices for the quality of coal expected to be mined,
taking into consideration typical contractual sales agreements
for the region and product. Where possible, Patriot also reviews
production by competitors in similar mining areas. Only coal
reserves expected to be mined economically are included in
Patriot’s reserve estimates. Finally, Patriot’s coal
reserve estimates include reductions for recoverability factors
to estimate a saleable product.
With respect to the accuracy of Patriot’s reserve
estimates, historical experience is that recovered reserves are
within plus or minus 10% of Patriot’s proven and probable
estimates, on average. Patriot’s probable estimates are
generally within the same statistical degree of accuracy when
the necessary drilling is completed to move reserves from the
probable to the proven classification. The expected degree of
variance from reserve estimate to tons produced is lower in the
Illinois Basin due to the continuity of the coal seams as
confirmed by the mining history. Appalachia has a higher degree
of risk due to the mountainous nature of the topography
which makes exploration drilling more difficult. Patriot’s
recovered reserves in Appalachia are less predictable and may
vary by an additional one to two percent above the threshold
discussed above.
Private coal leases normally have terms of between 10 and
20 years and usually give Patriot the right to renew the
lease for a stated period or to maintain the lease in force
until the exhaustion of mineable and merchantable coal contained
on the relevant site. These private leases provide for royalties
to be paid to the lessor either as a fixed amount per ton or as
a percentage of the sales price. Many leases also require
payment of a lease bonus or minimum royalty, payable either at
the time of execution of the lease or in periodic installments.
The terms of Patriot’s private leases are normally extended
by active production on or near the end of the lease term.
Leases containing undeveloped reserves may expire or these
leases may be renewed periodically. With a portfolio of
approximately 1.3 billion tons, Patriot believes that it
has sufficient reserves to replace capacity from depleting mines
for an extensive period of time and that its significant base of
proven and probable coal reserves is one of its strengths.
Patriot believes that the current level of production at its
major mines is sustainable for the foreseeable future.
Consistent with industry practice, Patriot conducts only limited
investigation of title to its coal properties prior to leasing.
Title to lands and reserves of the lessors or grantors and the
boundaries of Patriot’s leased properties are not
completely verified until Patriot prepares to mine those
reserves.
The following chart provides a summary, by geographic region and
mining complex, of production for the years ended
December 31, 2007, 2006 and 2005, tonnage of coal reserves
that is assigned to Patriot’s operating mines, property
interest in those reserves and other characteristics of the
facilities:
The following chart provides a summary of the amount of
Patriot’s proven and probable coal reserves in each
U.S. state, the predominant type of coal mined in the
applicable location, Patriot’s property interest in the
reserves and other characteristics of the facilities.
ASSIGNED
AND UNASSIGNED PROVEN AND PROBABLE COAL RESERVES(1)
AS OF DECEMBER 31, 2007
Total Tons
Sulfur Content(2)
Reserve Control
Mining Method
£1.2
lbs.
>1.2 to
>2.5 lbs.
Sulfur
2.5 lbs.
Sulfur
Proven
Dioxide
Sulfur Dioxide
Dioxide
As
and
Type
per
per
per
Received
Un-
Probable
of
Million
Million
Million
BTU per
Under-
Coal Seam Location
Assigned
Assigned
Reserves
Proven
Probable
Coal
Btu
Btu
Btu
Pound(3)
Owned
Leased
Surface
Ground
(Tons in millions)
Appalachia:
Ohio
—
26
26
19
7
Steam/Met
—
—
26
11,300
26
—
—
26
West Virginia
283
277
560
346
214
Steam
107
234
219
13,000
202
358
13
547
Total
283
303
586
365
221
107
234
245
228
358
13
573
Illinois Basin:
Illinois
—
265
265
112
153
Steam
3
14
248
11,100
263
2
1
264
Kentucky
131
280
411
214
197
Steam
—
—
411
11,200
147
264
32
379
Total
131
545
676
326
350
3
14
659
410
266
33
643
Total Proven and probable
414
848
1,262
691
571
110
248
904
638
624
46
1,216
(1)
Assigned reserves represent recoverable coal reserves that
Patriot has committed to mine at locations operating as of
December 31, 2007. Unassigned reserves represent coal at
suspended locations and coal that has not been committed. These
reserves would require new mine development, mining equipment or
plant facilities before operations could begin on the property.
(2)
Compliance coal is defined by Phase II of the Clean Air Act
as coal having sulfur dioxide content of 1.2 pounds or less per
million Btu. Non-compliance coal is defined as coal having
sulfur dioxide content in excess of this standard. Electricity
generators are able to use coal that exceeds these
specifications by using emissions reduction technology, using
emissions allowance credits or blending higher sulfur coal with
lower sulfur coal.
(3)
As-received Btu per pound includes the weight of moisture in the
coal on an as sold basis. The average moisture content used in
the determination of as received Btu in Appalachia was 7%. The
moisture content used in the determination of as received Btu in
Illinois Basin ranged from 9% to 14%.
(4)
Includes Big Run, which was sold in the first half of 2007.
Customers
and Backlog
Prior to the spin-off, coal produced by Patriot’s
operations was primarily sold to various Peabody subsidiaries
pursuant to intercompany agreements. These Peabody subsidiaries
then marketed and sold the coal to utilities and other customers
pursuant to their own coal supply agreements.
Since the spin-off, Patriot’s own sales and marketing team
enters into coal supply agreements with current and future
customers. Patriot continues to supply coal to Peabody’s
subsidiaries under contracts that existed at the date of the
spin-off and certain of these contracts have terms into 2012.
As of March 31, 2008, Patriot had a sales backlog of
61.0 million tons of coal, including backlog subject to
price reopener
and/or
extension provisions, and its coal supply agreements have
remaining terms up to 5 years and an average
volume-weighted remaining term of approximately 2.2 years.
These commitments represent approximately 95%, 71% and 37% of
Patriot’s estimated production for 2008, 2009 and 2010,
respectively.
In 2007, approximately 83% of Patriot’s coal sales were
under long-term (one year or greater) contracts. Also in 2007,
Patriot’s coal was sold to over 70 electricity generating
and industrial plants in eight countries, including the United
States. Patriot’s primary customer base is in the United
States.
Patriot expects to continue selling a significant portion of its
coal under supply agreements with terms of one year or longer.
Patriot’s approach is to selectively renew, or enter into
new, coal supply contracts when it can do so at prices it
believes are favorable. Through the pre-existing customer
relationships held by various Peabody subsidiaries, as of
December 31, 2007, approximately 66% and 36% of
Patriot’s projected 2008 and 2009 total production,
respectively, was committed under contracts, and Patriot had
approximately 40% and 10% of its projected metallurgical coal
production in 2008 and 2009, respectively, committed under
contracts with Peabody.
Typically, customers enter into coal supply agreements to secure
reliable sources of coal at predictable prices, while Patriot
seeks stable sources of revenue to support the investments
required to open, expand and maintain or improve productivity at
the mines needed to supply these contracts. The terms of coal
supply agreements result from competitive bidding and extensive
negotiations with customers. Consequently, the terms of these
contracts vary significantly in many respects, including price
adjustment features, price reopener terms, coal quality
requirements, quantity parameters, permitted sources of supply,
treatment of environmental constraints, extension options, force
majeure, and termination and assignment provisions.
Each contract sets a base price. Some contracts provide for a
predetermined adjustment to base price at times specified in the
agreement. Base prices may also be adjusted quarterly, annually
or at other periodic intervals for changes in production costs
and/or
changes due to inflation or deflation. Changes in production
costs may be measured by defined formulas that may include
actual cost experience at the mine as part of the formula. The
inflation/deflation adjustments are measured by public indices,
the most common of which is the implicit price deflator for the
gross domestic product as published by the U.S. Department
of Commerce. In most cases, the components of the base price
represented by taxes, fees and royalties which are based on a
percentage of the selling price are also adjusted for any
changes in the base price and passed through to the customer.
Most contracts contain provisions to adjust the base price due
to new statutes, ordinances or regulations that impact
Patriot’s cost of performance of the agreement.
Additionally, some contracts contain provisions that allow for
the recovery of costs impacted by modifications or changes in
the interpretation or application of existing statutes or
regulations. Some agreements provide that if the parties fail to
agree on a price adjustment caused by cost increases due to
changes in applicable laws and regulations, either party may
terminate the agreement.
Price reopener provisions are present in some of Patriot’s
multi-year coal contracts. These provisions may allow either
party to commence a renegotiation of the contract price at
various intervals. In a limited number of agreements, if the
parties do not agree on a new price, the purchaser or seller has
an option to terminate the contract. Under some contracts,
Patriot has the right to match lower prices offered to its
customers by other suppliers.
Quality and volumes for the coal are stipulated in coal supply
agreements, and in some limited instances buyers have the option
to vary annual or monthly volumes if necessary. Variations to
the quality and volumes of coal may lead to adjustments in the
contract price. Most coal supply agreements contain provisions
requiring Patriot to deliver coal within certain ranges for
specific coal characteristics such as heat content (Btu), sulfur
and ash content, grindability and ash fusion temperature.
Failure to meet these specifications can
result in economic penalties, suspension or cancellation of
shipments or termination of the contracts. Coal supply
agreements typically stipulate procedures for quality control,
sampling and weighing.
Contract provisions in some cases set out mechanisms for
temporary reductions or delays in coal volumes in the event of a
force majeure, including events such as strikes, adverse mining
conditions or serious transportation problems that affect the
seller or unanticipated plant outages that may affect the buyer.
More recent contracts stipulate that this tonnage can be made up
by mutual agreement. Buyers often negotiate similar clauses
covering changes in environmental laws. Patriot often negotiates
the right to supply coal that complies with a new environmental
requirement to avoid contract termination. Coal supply
agreements typically contain termination clauses if either party
fails to comply with the terms and conditions of the contract,
although most termination provisions provide the opportunity to
cure defaults.
In some of its contracts, Patriot has a right of substitution,
allowing it to provide coal from different mines, including
third-party production, as long as the replacement coal meets
the contracted quality specifications and will be sold at the
same delivered cost.
Sales and
Marketing
Patriot sells coal produced by its operations and third-party
producers. Its sales and marketing group includes personnel
dedicated to performing sales functions, market research,
contract administration, credit/risk management activities and
transportation and distribution functions.
Transportation
Coal consumed domestically is typically sold at the mine, and
transportation costs are borne by the purchaser. Export coal is
usually sold at the loading port, with purchasers paying ocean
freight. Producers usually pay shipping costs from the mine to
the port, including any vessel demurrage costs associated with
delayed loadings.
In 2007, Patriot shipped approximately 61% of its
22.1 million tons sold by rail, 35% by barge and 4% by
truck. Patriot’s transportation staff manages the loading
of coal via these transportation modes.
Suppliers
The main types of goods Patriot purchases are mining equipment
and replacement parts, steel-related (including roof control)
products, belting products and lubricants. Although Patriot has
many long, well-established relationships with its key
suppliers, it does not believe that it is dependent on any of
its individual suppliers other than for purchases of certain
underground mining equipment. The supplier base providing mining
materials has been relatively consistent in recent years,
although there has been some consolidation. Purchases of certain
underground mining equipment are concentrated with one principal
supplier; however, supplier competition continues to develop.
Technical
Innovation
Patriot continues to place great emphasis on the application of
technical innovation to improve new and existing equipment
performance, which leads to enhanced productivity, safety
improvements and cost control measures. This research and
development effort is typically undertaken and funded by
equipment manufacturers using Patriot’s input and
expertise. Patriot’s engineering, maintenance and
purchasing personnel work together with manufacturers to design
and produce equipment that it believes will add value to its
operations.
Patriot has successfully implemented this strategy in the past
through a number of key initiatives. For example, it was the
first company to introduce underground diesel equipment in West
Virginia. Patriot also was instrumental in developing
state-of-the-art continuous coal haulage equipment, now in use
at one of its western Kentucky mines. Patriot operate two
longwall systems which efficiently mine certain of its larger,
contiguous reserves. In addition, Patriot operate coal
preparation plants capable of producing a wide range of products
to meet specific customer demands.
World-class maintenance standards based on condition-based
maintenance practices are being implemented at all
operations. Using these techniques allows Patriot to increase
equipment utilization and reduce capital spending by extending
the equipment life, while minimizing the risk of premature
failures. Benefits from sophisticated lubrication analysis and
quality-control include lower lubrication consumption, optimum
equipment performance and extended component life.
Patriot uses advanced coal quality analyzers to allow continuous
analysis of certain coal quality parameters, such as sulfur
content. Their use helps ensure consistent product quality and
helps customers meet stringent air emission requirements.
Competition
The United States coal industry is highly competitive, both
within each region and on a national basis. Coal production in
Appalachia and the Illinois Basin totaled 472 million tons
in 2007, with the largest five producers (Consol Energy, Massey
Energy, Peabody (excluding Patriot’s operations), Alpha
Natural Resources and Alliance Resource Partners) accounting for
40% of production. In addition, coal from the western
United States and imported coal is used by utility
customers in the eastern United States.
A number of factors beyond Patriot’s control affect the
markets in which Patriot sells its coal. Continued demand for
Patriot’s coal and the prices obtained by Patriot depend
primarily on the coal consumption patterns of the electricity
and steel industries in the United States and elsewhere around
the world; the availability, location, cost of transportation
and price of competing coal; and other electricity generation
and fuel supply sources such as natural gas, oil, nuclear and
hydroelectric. Coal consumption patterns are affected primarily
by the demand for electricity, environmental and other
governmental regulations, and technological developments. The
most important factors on which Patriot competes are delivered
price (i.e., including transportation costs, which are paid by
its utility customers), coal quality characteristics and
reliability of supply.
Employees &
Labor Relations
Relations with Patriot’s employees and, where applicable,
organized labor, are important to its success. As of
December 31, 2007, Patriot had approximately
2,300 employees. Approximately 61% of Patriot’s
employees at its company operations were represented by the
UMWA, and these operations generated approximately 49% of its
2007 sales volume. Most of Patriot’s represented employees
are employed under a five-year labor agreement expiring
December 31, 2011. This contract mirrors the 2007 NBCWA.
The approximately 350 represented workers at Patriot’s
Highland Mine operate under a contract that will also expire on
December 31, 2011. The contract, which was effective
October 1, 2007, mirrors the wage increase component of the
2007 NBCWA.
Patriot operates a training center in Appalachia. Due to
increasing coal demand, the labor market for skilled miners and
other operations and management personnel is tight.
Patriot’s training center educates its workforce,
particularly its most recent hires, in its rigorous safety
standards, the latest in mining techniques and equipment, and
serves as a center for dissemination of mining best practices
across all of its operations. Patriot’s training efforts
are designed with the intent of developing and retaining a
world-class workforce.
Certain
Liabilities
Patriot has significant long-term liabilities for reclamation
(also called asset retirement obligations), work-related
injuries and illnesses, pensions and retiree healthcare. In
addition, labor contracts with the UMWA and voluntary
arrangements with non-union employees include long-term
benefits, notably healthcare coverage for retired employees and
future retirees and their dependents.
Asset
Retirement Obligations
Asset retirement obligations primarily represent the present
value of future anticipated costs to restore surface lands to
levels equal to or greater than pre-mining conditions, as
required by the Surface Mining Control and Reclamation Act of
1977 (SMCRA). Expense (which includes liability accretion and
asset
amortization) for the years ended December 31, 2007, 2006
and 2005 was $20.1 million, $24.3 million, and
$15.6 million, respectively. As of December 31, 2007,
Patriot’s asset retirement obligations of
$134.4 million included $102.7 million related to
locations with active mining operations and $31.7 million
related to locations that are closed or inactive.
Workers’
Compensation
These liabilities represent the estimates for compensable,
work-related injuries (traumatic claims) and occupational
disease, primarily black lung disease (pneumoconiosis) based
primarily on actuarial valuations. The Federal Black Lung
Benefits Act requires employers to pay black lung awards to
former employees who filed claims after June 1973. These
liabilities were $216.5 million as of December 31,2007, $23.8 million of which was a current liability.
Expense for the years ended December 31, 2007, 2006 and
2005 was $28.0 million, $32.4 million and
$46.8 million, respectively.
Retiree
Healthcare
Consistent with Statement of Financial Accounting Standard
(SFAS) No. 106, “Employers’ Accounting for
Postretirement Benefits Other Than Pensions”
(SFAS No. 106), Patriot records a liability
representing the estimated cost of providing retiree healthcare
benefits to current retirees and active employees who will
retire in the future. Provisions for active employees represent
the amount recognized to date, based on their service to date;
additional amounts are accrued periodically so that the total
estimated liability is accrued when the employee retires.
Patriot’s retiree healthcare liabilities were
$554.7 million as of December 31, 2007, of which
$27.4 million was a current liability. Expense for the
years ended December 31, 2007, 2006 and 2005 was
$99.9 million, $87.3 million and $83.4 million,
respectively.
In connection with the spin-off, a subsidiary of Peabody assumed
certain of Patriot’s pre-spin-off obligations associated
with the Coal Act, 2007 NBCWA and certain salaried employee
retiree healthcare benefits, assuming a liability totaling
$603.4 million at December 31, 2007. Patriot will
continue to administer these benefits and certain Patriot
subsidiaries will remain jointly and severally liable for the
Coal Act obligations, and remain secondarily liable for the 2007
NBCWA obligations and the salaried employee obligations.
The Coal Act provides for the funding of health benefits for
certain UMWA retirees. The Coal Act established the Combined
Fund into which “signatory operators” and
“related persons” are obligated to pay annual premiums
for beneficiaries. This multi-employer fund provides healthcare
benefits to a closed group of Patriot’s retired former
employees who last worked prior to 1976, as well as orphaned
beneficiaries of bankrupt companies who were receiving benefits
as orphans prior to the 1992 law. No new retirees will be added
to this group. The liability is subject to increases or
decreases in per capita healthcare costs, offset by the
mortality curve in this aging population of beneficiaries. The
Coal Act also created a second benefit fund, the 1992 Benefit
Plan, for miners who retired between July 21, 1992, and
September 30, 1994, and whose former employers are no
longer in business. Beneficiaries continue to be added to this
fund as employers default in providing their former employees
with retiree medical benefits, but the overall exposure for new
beneficiaries into this fund is limited to retirees covered
under their employer’s plan who retired prior to
October 1, 1994. A third fund, the 1993 Benefit Plan, was
established through collective bargaining and provides benefits
to qualifying former employees (who retired after
September 30, 1994) of certain signatory companies who
have gone out of business and have defaulted in providing their
former employees with retiree medical benefits. Beneficiaries
continue to be added to this fund as employers go out of
business. The collective bargaining agreement with the UMWA,
which specifies the payments to be made to the 1993 Benefit
Plan, expires on December 31, 2011.
On December 20, 2006, President Bush signed the Surface
Mining Control and Reclamation Act Amendments of 2006 (2006
Act). Prior to the enactment of this new law, federal statutes
required certain of Patriot’s subsidiaries to make
contributions to the United Mine Workers of America Combined
Fund (Combined Fund) and the 1992 Benefit Plan for costs of
“orphans” who are retirees and their dependents of
bankrupt companies that defaulted in providing their healthcare
benefits. Under the 2006 Act, these orphan benefits will be the
responsibility of the federal government on a phased-in basis.
The legislation authorizes $490 million per year in general
fund revenues to pay for these and other benefits under the
bill. In addition, future interest from the federal Abandoned
Mine Land (AML) trust fund and previous unused interest from the
AML trust fund will be available to offset orphan retiree
healthcare costs. Under current projections from the health
funds, these available resources are sufficient to cover all
anticipated costs of orphan retirees. These amounts are also in
addition to any amounts that may be appropriated by Congress at
its discretion. The legislation also reduces AML fees currently
paid by Patriot on coal production. Beginning in October 2007,
those fees will be reduced by ten percent from current levels
for five years, and then 20% from current levels for ten years,
at which point the authority to collect fees will expire.
The 2006 Act specifically amended the federal laws establishing
the Combined Fund, the 1992 Benefit Plan and the 1993 Benefit
Plan. The 2006 Act provides new and additional funding to all
three programs, subject to the limitations described below. The
2006 Act guarantees full funding of all beneficiaries in the
Combined Fund by supplementing the annual transfers of interest
earned on the AML trust fund. The 2006 Act further provides
funding for the annual orphan health costs under the 1992
Benefit Plan on a phased-in basis: 25%, 50% and 75% in the years
2008, 2009 and 2010, respectively. Thereafter, federal funding
will pay for 100% of the orphan health costs. The coal producers
that signed the 1988 labor agreement, including some of
Patriot’s subsidiaries, remain responsible for the costs of
the 1992 Benefit Plan in 2007. The 2006 Act also included the
1993 Benefit Plan as one of the statutory funds and authorizes
the trustees of the 1993 Benefit Plan to determine the
contribution rates through 2010 for pre-2007 beneficiaries.
During calendar years 2008 through 2010, federal funding will
pay a portion of the 1993 Benefit Plan’s annual health
costs on a phased-in basis: 25%, 50% and 75% in the years 2008,
2009 and 2010, respectively. The 1993 Benefit Plan trustees have
set a $1.77 per hour statutory contribution rate for 2008. Under
the 2006 Act, these new and additional federal expenditures to
the Combined Fund, 1992 Benefit Plan, 1993 Benefit Plan and
certain Abandoned Mine Land payments to the states and Indian
tribes are collectively limited by an aggregate annual cap of
$490 million as described above. To the extent that
(i) the annual funding of the programs exceeds this amount
(plus the amount of interest from the AML trust fund paid with
respect to the Combined Benefit Fund), and (ii) Congress
does not allocate additional funds to cover the shortfall,
contributing employers and affiliates, including some of
Patriot’s subsidiaries, would be responsible for the
additional costs. Those of Patriot’s subsidiaries that have
agreed to the 2007 NBCWA will pay $0.50 per hour worked to the
1993 Benefit Plan to provide benefits for post 2006
beneficiaries. To the extent the $0.50 per hour payment exceeds
the amount needed for this purpose, the difference will be
credited against the $1.77 per hour statutory payment.
Obligations to the Combined Fund were $36.3 million as of
December 31, 2007, $5.2 million of which was a current
liability. Expenses for the years ended December 31, 2007,
2006 and 2005 were $2.9 million, $2.5 million and
$0.9 million, respectively. Cash payments to the Combined
Fund were $5.5 million, $8.3 million and
$4.0 million for 2007, 2006 and 2005, respectively. The
1992 Benefit Fund and the 1993 Benefit Fund are expensed as
payments are made and no liability was recorded other than
amounts due and unpaid. Expense related to these funds was
$15.9 million, $6.9 million and $4.8 million for
the years ended December 31, 2007, 2006 and 2005,
respectively.
Regulatory
Matters
Federal and state authorities regulate the U.S. coal mining
industry with respect to matters such as employee health and
safety, permitting and licensing requirements, the protection of
the environment, plants and wildlife, the reclamation and
restoration of mining properties after mining has been
completed, surface subsidence from underground mining and the
effects of mining on groundwater quality and availability. In
addition, the industry is affected by significant legislation
mandating certain benefits for current and retired coal miners.
Patriot has in the past, and will in the future, be required to
incur significant costs to comply with these laws and
regulations.
Future legislation and regulations are expected to become
increasingly restrictive, and there may be more rigorous
enforcement of existing and future laws and regulations.
Depending on the development of future
laws and regulations, Patriot may experience substantial
increases in equipment and operating costs and may experience
delays, interruptions or termination of operations.
Failure to comply with these laws and regulations may result in
the assessment of administrative, civil and criminal fines or
penalties, the acceleration of cleanup and site restoration
costs, the issuance of injunctions to limit or cease operations
and the suspension or revocation of permits and other
enforcement measures that could have the effect of limiting
production from Patriot’s operations.
Mine
Safety and Health
Patriot’s goal is to achieve excellent safety and health
performance. Patriot measures its progress in this area
primarily through the use of accident frequency rates. Patriot
believes that it is its responsibility to its employees to
provide a superior safety and health environment. Patriot seeks
to implement this goal by: training employees in safe work
practices; openly communicating with employees; establishing,
following and improving safety standards; involving employees in
the establishment of safety standards; and recording, reporting
and investigating all accidents, incidents and losses to avoid
reoccurrence. Patriot utilizes best practices in emergency
preparedness, which includes maintaining multiple mine rescue
teams. A portion of the annual performance incentives for
Patriot’s mining personnel is tied to their safety record.
Patriot’s approach to safety has resulted in a steady
decline in incidence numbers and their severity rates, with 2007
being the safest year in the history of these operations.
Patriot received two Mountaineer Guardian Awards for safety in
2007. Patriot’s training center educates its employees in
safety best practices and reinforces its company-wide belief
that productivity and profitability follow when safety is a
cornerstone of all of its operations.
Stringent health and safety standards have been in effect since
Congress enacted the Coal Mine Health and Safety Act of 1969.
The Federal Mine Safety and Health Act of 1977 (MSHA)
significantly expanded the enforcement of safety and health
standards and imposed safety and health standards on all aspects
of mining operations. Congress enacted The Mine Improvement and
New Emergency Response Act of 2006 (The Miner Act) as a result
of an increase in fatal accidents primarily at
U.S. underground mines in 2006. Among the new requirements,
each miner must have at least two,
one-hour
Self Contained Self Rescue (SCSR) devices for their use in the
event of an emergency (each miner had at least one SCSR device
prior to The Miner Act) and additional caches of rescuers in the
escape routes leading to the surface. Patriot’s evacuation
training programs have been expanded to include more
comprehensive training with the SCSR devices and frequent escape
drills, as well as mine-wide simulated disaster training. The
Miner Act also requires installation of two-way communications
systems that allow communication between rescue workers and
trapped miners following an accident as mine operators must have
the ability to locate each miner’s last known position
immediately before and after a disaster occurs. Patriot’s
underground mines currently track and communicate with miners
via existing mine communications telephone systems. Patriot is
in the process of ordering new wireless tracking and
communication devices and providing two mine rescue teams
located within one hour of each mine by ground. Rescue chambers
have been ordered for all of Patriot’s underground mines
and the manufacturers are beginning to ship them. Compliance
with the new regulation will result in additional expense.
Furthermore, Congress is currently considering legislation known
as the S-MINER Act which, if passed, may have an adverse effect
on Patriot’s operating costs. This legislation may require
certain additional safety measures, including changes in mine
seals, ventilation systems and conveyer belts, and may also
increase the maximum assessed penalty amounts currently
authorized and penalty payment obligations.
The states in which Patriot operates have state programs for
mine safety and health regulation and enforcement. Collectively,
federal and state safety and health regulation in the coal
mining industry is perhaps the most comprehensive and pervasive
system for protection of employee health and safety affecting
any segment of U.S. industry. As a result of a recent
increase in U.S. fatal accidents primarily at underground
mines, several states including West Virginia and Kentucky have
adopted new safety regulations. In addition, regulatory
authorities under the MSHA have passed numerous emergency
regulations including emergency notification and response plans,
increased fines for violations and added mine rescue coverage
requirements.
While these changes have had a significant effect on
Patriot’s operating costs, Patriot’s
U.S. competitors with underground mines are subject to the
same degree of regulation.
Black
Lung
In the United States, under the Black Lung Benefits Revenue Act
of 1977 and the Black Lung Benefits Reform Act of 1977, as
amended in 1981, each U.S. coal mine operator must pay
federal black lung benefits and medical expenses to claimants
who are current and former employees and last worked for the
operator after July 1, 1973. Coal mine operators must also
make payments to a trust fund for the payment of benefits and
medical expenses to claimants who last worked in the coal
industry prior to July 1, 1973. Historically, less than 7%
of the miners currently seeking federal black lung benefits are
awarded these benefits. The trust fund is funded by an excise
tax on U.S. production of up to $1.10 per ton for coal from
underground mines and up to $0.55 per ton for surface-mined
coal, neither amount to exceed 4.4% of the gross sales price.
Environmental
Laws
Patriot is subject to various federal and state environmental
laws and regulations that impose significant requirements on its
operations. The cost of complying with current and future
environmental laws and regulations and Patriot’s
liabilities arising from past or future releases of, or exposure
to, hazardous substances, may adversely affect Patriot’s
business, results of operations or financial condition. In
addition, environmental laws and regulations particularly
relating to air emissions can reduce the demand for coal.
Significant public opposition has been raised with respect to
the proposed construction of certain new coal-fired electricity
generating plants due to the potential air emissions that would
result. Such regulation and opposition could reduce the demand
for coal.
Numerous federal and state governmental permits and approvals
are required for mining operations. When Patriot applies for
these permits or approvals, it may be required to prepare and
present to federal or state authorities data pertaining to the
effect or impact that a proposed exploration for or production
or processing of coal may have on the environment. Compliance
with these requirements could prove costly and time-consuming
and could delay commencing or continuing exploration or
production operations. A failure to obtain or comply with
permits could result in significant fines and penalties and
could adversely effect the issuance of other permits for which
Patriot or a related entity may apply.
Certain key environmental issues, laws and regulations facing
Patriot are described further below.
Surface
Mining Control and Reclamation Act
The Surface Mining Control and Reclamation Act (SMCRA), which is
administered by the Office of Surface Mining Reclamation and
Enforcement (OSM), establishes mining, environmental protection
and reclamation standards for all aspects of U.S. surface
mining as well as many aspects of underground mining. Mine
operators must obtain SMCRA permits and permit renewals for
mining operations from the OSM. Where state regulatory agencies
have adopted federal mining programs under the act, the state
becomes the regulatory authority. States in which Patriot has
active mining operations have achieved primary control of
enforcement through federal authorization.
SMCRA permit provisions include requirements for coal
prospecting; mine plan development; topsoil removal, storage and
replacement; selective handling of overburden materials; mine
pit backfilling and grading; protection of the hydrologic
balance; subsidence control for underground mines; surface
drainage control; mine drainage and mine discharge control and
treatment; and revegetation.
The U.S. mining permit application process is initiated by
collecting baseline data to adequately characterize the
pre-mining environmental condition of the permit area. Patriot
develops mine and reclamation plans by utilizing this geologic
data and incorporating elements of the environmental data. The
mine and reclamation plan incorporates the provisions of SMCRA,
the state programs and the complementary environmental programs
that impact coal mining. Also included in the permit application
are documents defining ownership and agreements pertaining to
coal, minerals, oil and gas, water rights, rights of way and
surface land and documents required of the OSM’s Applicant
Violator System, including the mining and compliance history of
officers, directors and principal stockholders of the applicant.
Once a permit application is prepared and submitted to the
regulatory agency, it goes through a completeness and technical
review. Public notice of the proposed permit is given for a
comment period before a permit can be issued. Some SMCRA mine
permits take over a year to prepare, depending on the size and
complexity of the mine and often take six months to two years to
be issued. Regulatory authorities have considerable discretion
in the timing of the permit issuance and the public has the
right to comment on and otherwise engage in the permitting
process, including public hearings and through intervention in
the courts.
SMCRA stipulates compliance with many other major environmental
programs. These programs include the Clean Air Act, the Clean
Water Act (CWA), the Resource Conservation and Recovery Act
(RCRA), the Comprehensive Environmental Response, Compensation
and Liability Act (CERCLA) and employee right-to-know
provisions. Besides OSM, other Federal regulatory agencies are
involved in monitoring or permitting specific aspects of mining
operations. The U.S. Environment Protection Agency (EPA) is
the lead agency for states with no authorized programs under the
Clean Water Act, RCRA and CERCLA. The U.S. Army Corps of
Engineers (ACOE) regulates activities affecting navigable waters
and the U.S. Bureau of Alcohol, Tobacco and Firearms
regulates the use of explosive blasting.
Patriot does not believe there are currently any substantial
matters that pose a serious risk to maintaining its existing
mining permits or that significantly hinder its ability to
acquire future mining permits. However, Patriot cannot be sure
that it will not experience delays or other difficulties in
obtaining mining permits in the future.
Mine
Closure Costs
Various federal and state laws and regulations, including SMCRA,
require Patriot to obtain surety bonds or other forms of
financial security to secure payment of certain long-term
obligations, including mine closure or reclamation costs,
federal and state workers’ compensation costs and other
miscellaneous obligations. Many of these bonds are renewable on
a yearly basis. Surety bond costs have increased in recent
years. As of December 31, 2007, Patriot had outstanding
surety bonds and letters of credit aggregating
$362.6 million, of which $146.0 million was for
post-mining reclamation, $183.8 million related to
workers’ compensation obligations, $16.9 million was
for coal lease obligations and $15.9 million was for other
obligations (including collateral for surety companies and bank
guarantees, road maintenance and performance guarantees).
Changes in these laws and regulations could require Patriot to
obtain additional surety bonds or other forms of financial
assurance.
The AML Fund, which is part of SMCRA, requires a fee on all coal
produced in the U.S. The proceeds are used to rehabilitate
lands mined and left unreclaimed prior to August 3, 1977
and to pay healthcare benefit costs of orphan beneficiaries of
the Combined Fund. The fee was $0.35 per ton for surface-mined
coal and $0.15 per ton for underground-mined coal through
September 30, 2007. Pursuant to the 2006 Act, from
October 1, 2007 through September 30, 2012, the fee is
$0.315 per ton for surface-mined coal and $0.135 per ton for
underground-mined coal. From October 1, 2012 through
September 30, 2021, the fee will be $0.28 per ton for
surface-mined coal and $0.12 per ton for underground-mined coal.
Clean
Air Act
The Clean Air Act and the corresponding state laws that regulate
the emissions of materials into the air affect U.S. coal
mining operations both directly and indirectly. Direct impacts
on coal mining and processing operations may occur through Clean
Air Act permitting requirements
and/or
emission control requirements relating to particulate matter.
The Clean Air Act indirectly affects the coal industry by
extensively regulating the air emissions of sulfur dioxide,
nitrogen oxide, mercury and other compounds emitted by
coal-based electricity generating plants, and state or federal
regulation is likely to be imposed in the future on the emission
of carbon dioxide and possibly other greenhouse gasses. In
recent years Congress has also considered legislation that would
require increased reductions in emissions of sulfur dioxide,
nitrogen oxide and mercury.
Existing and new legislation may lead to some electricity
generating customers switching to other sources of fuel whose
use would result in lower levels of regulated emissions.
Clean Air Act requirements that may directly or indirectly
affect Patriot’s operations include the following:
Acid
Rain
Title IV of the Clean Air Act regulates sulfur dioxide
emissions by all coal-fired power plants generating greater than
25 Megawatts. The affected electricity generators have sought to
meet these requirements by, among other compliance methods,
switching to lower sulfur fuels, installing pollution control
devices, reducing electricity generating levels or purchasing
sulfur dioxide emission allowances. Title IV also requires
that certain categories of electric generating stations install
certain types of nitrogen oxide controls. Major changes in
Title IV were recently promulgated in the Clean Air
Interstate Rule (CAIR). Patriot cannot predict the effect of
these provisions of the Clean Air Act on it in future years.
Clean Air
Interstate Rule (CAIR)
The EPA promulgated CAIR in March 2005. CAIR requires reduction
of sulfur dioxide and nitrogen oxide emissions from electricity
generating plants in 28 states and the District of
Columbia. Substantial reductions in such emissions were already
made in 1995 and 2000 under requirements of Title IV of the
Clean Air Act. Once fully implemented over two rounds in
2009-2010
and 2015, CAIR is projected to reduce sulfur dioxide emissions
from power plants by approximately 73% and nitrogen oxide
emissions by approximately 61% from 2003 levels. The stringency
of the emissions cap may require many coal-fired power sources
to install additional pollution control equipment, such as wet
scrubbers, to comply. The increased capability of such equipment
to remove sulfur dioxide emissions could cause customers to
substitute high sulfur coal for low sulfur coal. This rule is
subject to legal challenges, making its impact difficult to
assess.
Clean Air
Mercury Rule (CAMR)
The EPA also promulgated CAMR in March 2005. CAMR permanently
caps and reduces nationwide mercury emissions from coal-fired
power plants. The rule established standards limiting mercury
emissions from new and existing coal-fired power plants and
created a model, market-based
cap-and-trade
program to reduce nationwide utility emissions of mercury in two
distinct phases. CAMR was vacated on February 8, 2008 by
the US Court of Appeals for the D.C. Circuit, thereby requiring
the EPA to promulgate a new mercury emissions rule which
presumably will not include a
cap-and-trade
program. It is unclear whether certain states will continue to
enforce their former CAMR standards in the interim before a more
stringent federal rule is promulgated. Stricter limitations on
mercury emissions from power plants may adversely affect the
demand for coal.
National
Ambient Air Quality Standards
The Clean Air Act requires the EPA to set National Ambient Air
Quality Standards (NAAQS) for pollutants considered harmful to
public health and the environment. Areas not in attainment of
these standards must take steps to reduce emission levels. In
September 2006, the EPA revised and updated the particulate
matter standards. The EPA also recently proposed a range of
reductions to the existing ozone NAAQS. As a result some states
will likely be required to change their existing state
implementation plans (SIPs) to attain and maintain compliance
with the updated NAAQS. Patriot’s mining operations and
electricity generating customers are likely to be directly
affected when the revisions to the air quality standards are
implemented by the states. Such implementation could also
restrict Patriot’s ability to develop new mines or require
it to modify its existing operations. In addition to the SIP
process, the Clean Air Act allows states to assert claims
against sources in other “upwind” states alleging that
emission sources, including coal-fired power plants in the
upwind states, are preventing the “downwind” states
from attaining a NAAQS. All these actions could result in
additional control requirements for coal-fired power plants and
Patriot is unable to predict the effect on coal production.
Several years ago, the EPA commenced an investigation of the
fossil fuel-fired electric power generation industry to
determine compliance with environmental requirements under the
Clean Air Act associated with repairs, maintenance,
modifications and operational changes made to facilities over
the years. Following this investigation, the Justice Department,
on behalf of the EPA, filed a number of lawsuits alleging that
certain electricity generators violated the new source review
(NSR) provisions of the Clean Air Act. Some electricity
generators announced settlements with the Justice Department
requiring the installation of additional control equipment on
selected generating units. If the remaining electricity
generators that are parties to this litigation are found to be
in violation of the NSR provisions, they could be subject to
civil penalties and could be required to install the required
control equipment or cease operations. In April 2007, the
U.S. Supreme Court ruled, in Environmental Defense v.
Duke Energy Corp., against a generator in an enforcement
proceeding, reversing the decision of the appellate court. This
decision could potentially expose numerous electricity
generators to government or citizen actions based on failure to
obtain NSR permits for changes to emissions sources and
effectively increase the costs to them of continuing to use
coal. Patriot’s customers are among the electricity
generators subject to enforcement actions and, if found not to
be in compliance, its customers could be required to install
additional control equipment at the affected plants or they
could decide to close some or all of those plants. If
Patriot’s customers decide to install additional pollution
control equipment at the affected plants, Patriot believes it
will have the ability to supply coal from either of the regions
in which it operates to meet any new coal requirements.
Regional
Haze
The EPA published the final regional haze rule on July 1,1999. This rule established planning and emissions reduction
timelines for states to use to improve visibility in national
parks throughout the United States. On June 22, 2001, the
EPA signed a proposed rule to guide states in implementing the
1999 rule and in controlling power plant emissions that cause
regional haze problems. The proposed rule set guidelines for
states in setting Best Alternative Retrofit Technology (BART) at
older power plants. On May 5, 2004, the EPA published a
proposed rule with new BART provisions and re-proposed the BART
guidelines. On June 15, 2005, the EPA finalized amendments
to the July 1999 regional haze rule. The EPA determined that
states which adopt the CAIR cap and trade program for sulfur
dioxide and nitrogen oxide will be allowed to apply CAIR
controls as a substitute for those required by BART.
Carbon
Dioxide Emissions
The U.S. Supreme Court’s April 2007 ruling in
Massachusetts v. EPA, clarified that the EPA does have the
authority to regulate carbon dioxide emissions as a
“pollutant” under the Clean Air Act insofar as motor
vehicles are concerned. In addition, the Court remanded the
issue to the EPA to justify its action or inaction. As a result
of this decision, the EPA may conclude that it must regulate
carbon dioxide from motor vehicles as well as from stationary
sources. Any such new regulation could adversely affect
Patriot’s customers and as a result could adversely affect
Patriot’s results of operations.
State
Laws
Several states have recently proposed or adopted legislation or
regulations further limiting emissions of sulfur dioxide,
nitrogen oxide, mercury and carbon dioxide. Limitations imposed
by states on emissions of any of these substances could cause
Patriot’s customers to switch to other fuels to the extent
it becomes economically preferable for them to do so.
Global
Climate Change
Global climate change continues to attract considerable public
and scientific attention. Widely publicized scientific reports
in 2007, such as the Fourth Assessment Report of the
Intergovernmental Panel on Climate Change, have also engendered
widespread concern about the impacts of human activity,
especially fossil fuel combustion, on global climate change. In
turn, considerable and increasing government attention in the
United States is being paid to global climate change and to
reducing greenhouse gas emissions, particularly from coal
combustion by power plants. In addition to the potential for the
EPA to impose regulations on greenhouse gas emissions as
described above, federal and state law-making bodies are
considering regulating greenhouse gas emissions. Such
legislation is currently pending in Congress, and a growing
number of states in the United States have taken or are
considering taking steps to regulate greenhouse gas emissions,
including by requiring reductions on carbon dioxide emissions
from power plants. These legislative efforts, if enacted, would
likely have an adverse impact on Patriot’s business. For
example, enactment of laws
and/or the
passage of regulations regarding greenhouse gas emissions, or
other actions to limit carbon dioxide emissions, could result in
electric generators switching from coal to other fuel sources
and thereby reduce the demand for coal. Given the diverse and
various approaches of the legislation that has been proposed to
date, the extent of this impact is impossible to quantify at
this time.
Clean
Water Act
National
Pollutant Discharge Elimination System (NPDES)
The Clean Water Act (CWA) requires effluent limitations and
treatment standards for wastewater discharge through the NPDES
program. NPDES permits govern the discharge of pollutants into
water and require regular monitoring and reporting and
performance standards. States are empowered to develop and
enforce “in stream” water quality standards. These
standards are subject to change and must be approved by the EPA.
Discharges must either meet state water quality standards or be
authorized through available regulatory processes such as
alternate standards or variances. “In stream”
standards vary from state to state. Additionally, through the
CWA Section 401 certification program, states have approval
authority over federal permits or licenses that might result in
a discharge to their waters. States consider whether the
activity will comply with its water quality standards and other
applicable requirements in deciding whether or not to certify
the activity.
Total Maximum Daily Load (TMDL) regulations established a
process by which states designate stream segments as impaired
(not meeting present water quality standards). Industrial
dischargers, including coal mining operations, may be required
to meet new TMDL effluent standards for these stream segments.
States must also conduct an anti-degradation review before
approving permits for the discharge of pollutants to waters that
have been designated as high quality. A state’s
anti-degradation regulations would prohibit the diminution of
water quality in these streams. Several environmental groups and
individuals recently challenged, in part successfully, West
Virginia’s anti-degradation policy. As a result, in
general, waters discharged from coal mines to high quality
streams in West Virginia will be required to meet or exceed new
“high quality” standards. This could cause increases
in the costs, time and difficulty associated with obtaining and
complying with NPDES permits, and could adversely affect
Patriot’s coal production.
Section 404
Section 404 of the CWA requires mining companies to obtain
ACOE permits to place material in streams for the purpose of
creating slurry ponds, water impoundments, refuse areas, valley
fills or other mining activities. ACOE issues two types of
permits pursuant to Section 404 of the CWA: general (or
“nationwide”) and “individual” permits.
Nationwide permits are issued to streamline the permitting
process for dredging and filling activities that have minimal
adverse environmental impacts. An individual permit typically
requires a more comprehensive application process, including
public notice and comment, but an individual permit can be
issued for ten years (and may be extended thereafter upon
application).
Nationwide Permit 21, in particular, has been the subject of
many recent court cases, the results of which may increase
Patriot’s permitting and operating costs, result in
permitting delays, suspend current operations or prevent the
opening of new mines. In particular, a July 2004 decision by the
Southern District of West Virginia enjoined the Huntington
District of the ACOE from issuing further permits pursuant to
Nationwide Permit 21. While the decision was vacated by the
Fourth Circuit Court of Appeals in November 2005, a similar
lawsuit has been filed in federal district court in Kentucky. To
date, the judge in this case has not rendered any rulings on the
merits. Additionally, individual permits issued pursuant to the
Clean Water Act are
also subject to court challenge. The OVEC and other
environmental groups sued the ACOE in the U.S. District
Court for the Southern District of West Virginia, asserting that
the ACOE unlawfully issued individual permits to construct
mining fills to certain subsidiaries of another coal company. In
March 2007, the trial judge revoked the permits issued to each
of the companies because the ACOE failed to comply with the
requirements of both Section 404 of the CWA and the
National Environmental Policy Act, including preparing
environmental impact statements for individual permits. This
ruling has been appealed. In the event these or similar lawsuits
prove to be successful, obtaining the required mining permits
could become more difficult and expensive, which could in turn
have an adverse effect on Patriot’s revenues and operations
even though Patriot has minimal surface operations.
Resource
Conservation and Recovery Act
RCRA established comprehensive requirements for the treatment,
storage and disposal of hazardous wastes. Coal mine wastes, such
as overburden and coal cleaning wastes, are not considered
hazardous waste materials under RCRA. Subtitle C of RCRA
exempted fossil fuel combustion wastes from hazardous waste
regulation until the EPA completed a report to Congress and made
a determination on whether the wastes should be regulated as
hazardous. In a 1993 regulatory determination, the EPA addressed
some high volume-low toxicity coal combustion materials
generated at electric utility and independent power producing
facilities. In May 2000, the EPA concluded that coal combustion
materials do not warrant regulation as hazardous under RCRA. The
EPA is retaining the hazardous waste exemption for these
materials. The EPA is evaluating national non-hazardous waste
guidelines for coal combustion materials placed at a mine.
National guidelines for mine-fills may affect the cost of ash
placement at mines.
Federal
and State Superfund Statutes
CERCLA and similar state laws impose liability for investigation
and clean-up
of contaminated properties and for damages to natural resources.
Under CERCLA or similar state laws, strict, joint and several
liability may be imposed on waste generators, site owners or
operators and others regardless of fault. Thus, coal mines or
other sites that Patriot currently owns or has previously owned
or operated and sites to which Patriot has sent waste material
may be subject to liability under CERCLA and similar state laws.
Toxic
Release Reporting
Under the EPA’s Toxic Release Inventory process, companies
are required to annually report the use, manufacture or
processing of listed toxic materials that exceed defined
thresholds, including chemicals used in equipment maintenance,
reclamation, water treatment and ash received for mine placement
from power generation customers.
Legal
Proceedings
From time to time, Patriot and its subsidiaries are involved in
legal proceedings, arbitration proceedings and administrative
procedures arising in the ordinary course of business. Patriot
believes it has recorded adequate reserves for these liabilities
and that there is no individual case pending, including the
environmental matter described below, that is reasonably likely
to have a material adverse effect on Patriot’s financial
condition, results of operations or cash flows.
Environmental
Claims and Litigation
Patriot is subject to applicable federal, state and local
environmental laws and regulations where it conducts operations.
Current and past mining operations are primarily covered by
SMCRA, the CWA and the Clean Air Act but also include Superfund,
the Superfund Amendments and Reauthorization Act of 1986 and the
Resource Conservation and Recovery Act of 1976. Superfund and
similar state laws create liability for investigation and
remediation in response to releases of hazardous substances in
the environment and for damages to natural resources. Under that
legislation and many state Superfund statutes, joint and several
liability may be imposed on waste generators, site owners and
operators and others regardless of fault. These
regulations could require Patriot to do some or all of the
following: (i) remove or mitigate the effects on the
environment at various sites from the disposal or release of
certain substances; (ii) perform remediation work at such
sites; and (iii) pay damages for loss of use and non-use
values.
Patriot’s policy is to accrue environmental cleanup-related
costs of a non-capital nature when those costs are believed to
be probable and can be reasonably estimated. The quantification
of environmental exposures requires an assessment of many
factors, including the nature and extent of contamination, the
timing, extent and method of the remedial action, changing laws
and regulations, advancements in environmental technologies, the
quality of information available related to specific sites, the
assessment stage of each site investigation, preliminary
findings and the length of time involved in remediation or
settlement. Patriot also assesses the financial capability and
proportional share of costs of other PRPs and, where allegations
are based on tentative findings, the reasonableness of its
apportionment. Patriot has not anticipated any recoveries from
insurance carriers in the estimation of liabilities recorded in
its consolidated balance sheets.
Although waste substances generated by coal mining and
processing are generally not regarded as hazardous substances
for the purposes of Superfund and similar legislation and are
generally covered by SMCRA, some products used by coal companies
in operations, such as chemicals, and the disposal of these
products are governed by the Superfund statute. Thus, coal mines
currently or previously owned or operated by Patriot, and sites
to which it has sent waste materials, may be subject to
liability under Superfund and similar state laws.
One of Patriot’s subsidiaries operated the Eagle No. 2
Mine located near Shawneetown, Illinois from 1969 until closure
of the mine in July of 1993. In 1999, the State of Illinois
brought a proceeding before the Illinois Pollution Control Board
against Patriot’s subsidiary alleging that groundwater
contamination due to leaching from a coal waste pile at the mine
site violated state standards. Patriot’s subsidiary has
developed a remediation plan with the State of Illinois and is
negotiating with the Illinois Attorney General’s office
with respect to their claim for a civil penalty of
$1.3 million.
Market
for Registrant’s Common Equity, Related Stockholder Matters
and Issuer Purchases of Equity Securities
On October 31, 2007, Peabody effected the spin-off of
Patriot and its subsidiaries. The spin-off was accomplished
through a dividend of all outstanding shares of Patriot Coal
Corporation. Patriot’s common stock is listed on the New
York Stock Exchange, under the symbol “PCX.” As of
June 16, 2008, there were approximately 783 holders of
record of Patriot’s common stock.
The high and low sales price for Patriot’s common stock on
the New York Stock Exchange for the period from November 1,2007 to December 31, 2007 was $43.00 and $27.16.
Dividend
Policy
Patriot does not anticipate that it will pay cash dividends on
its common stock in the near term. The declaration and amount of
future dividends, if any, will be determined by Patriot’s
Board of Directors and will depend on its financial condition,
earnings, capital requirements, financial covenants, regulatory
constraints, industry practice and other factors its Board deems
relevant.
In accordance with SEC rules, the information contained in the
Stock Performance Graph above, shall not be deemed to be
“soliciting material,” or to be “filed” with
the SEC or subject to the SEC’s Regulation 14A or 14C,
other than as provided under Item 201(e) of
Regulation S-K,
or to the liabilities of Section 18 of the Securities
Exchange Act of 1934, as amended, except to the extent that
Patriot specifically requests that the information be treated as
soliciting material or specifically incorporates it by reference
into a document filed under the Securities Act of 1933, as
amended, or the Securities Exchange Act of 1934, as amended.
As required by Item 201(d) of
Regulation S-K,
the following table provides information regarding
Patriot’s equity compensation plans as of December 31,2007:
Equity
Compensation Plan Information
Number of
Securities
(a)
Remaining Available
Number of
for Future Issuance
Securities to be
Under Equity
Issued Upon
Weighted-Average
Compensation Plans
Exercise of
Exercise Price of
(Excluding
Outstanding
Outstanding
Securities
Options, Warrants
Options, Warrants
Reflected in Column
Plan Category
and Rights
and Rights
(a))
Equity compensation plans approved by security holders
1,351,302
$
37.50
1,248,698
Equity compensation plans not approved by security holders
N/A
N/A
N/A
Total
1,351,302
$
37.50
1,248,698
Additional
Information
Patriot files annual, quarterly and current reports, and its
amendments to those reports, proxy statements and other
information with the Securities and Exchange Commission (SEC).
You may access and read Patriot’s SEC filings free of
charge through its website, at www.patriotcoal.com, or the
SEC’s website, at www.sec.gov. You may read and copy any
document Patriot files at the SEC’s public reference room
located at 100 F Street, N.E., Washington, D.C.
20549. Please call the SEC at
1-800-SEC-0330
for further information on the public reference room.
Prior to October 31, 2007, Patriot was a subsidiary of
Peabody. Effective October 31, 2007, Patriot spun-off from
Peabody through the distribution of all of Patriot’s common
stock to the stockholders of Peabody as a dividend. Patriot
entered into a Separation Agreement with Peabody containing the
key provisions relating to the separation of Patriot’s
business from Peabody. The Separation Agreement identifies the
assets transferred, liabilities assumed and contracts to be
assigned to Patriot.
Patriot is a leading producer of coal in the eastern United
States, with operations and coal reserves in Appalachia and the
Illinois Basin, its operating segments. Patriot is also a
leading U.S. producer of metallurgical quality coal.
Patriot and its predecessor companies have operated in these
regions for more than 50 years. Patriot’s principal
business is the mining, preparation and sale of steam coal, sold
primarily to electric utilities, as well as the mining of
metallurgical coal, sold to coke producers for use in the
steelmaking process. In the first three months of 2008, Patriot
sold 5.1 million tons of coal, of which 71% was sold to
domestic and international electric utilities and 29% was sold
to domestic and international steel producers. In 2007, Patriot
sold 22.1 million tons of coal, of which 77% was sold to
domestic electric utilities and 23% was sold to domestic and
international steel producers. In 2006, Patriot sold
24.3 million tons of coal, of which 77% was sold to
domestic electric utilities and 23% was sold to domestic and
global steel producers. Patriot typically sells coal to utility
and steel-making customers under contracts with terms of one
year or more. Approximately 83% and 85% of Patriot’s sales
were under such contracts during 2007 and 2006, respectively.
Patriot controls 1.3 billion tons of proven and probable
coal reserves. Patriot’s proven and probable coal reserves
include premium coking coal and medium- and
high-Btu
thermal coal, with low, medium and high sulfur content.
Patriot’s operations consist of ten company-operated mines
and numerous contractor-operated mines, serviced by eight coal
preparation facilities, with one in northern West Virginia, four
in southern West Virginia and three in western Kentucky. The
Appalachia and Illinois Basin segments consist of Patriot’s
operations in West Virginia and Kentucky, respectively. Patriot
ships coal to electric utilities, industrial users and
metallurgical coal customers via third-party loading facilities
and multiple rail and river transportation routes.
On April 2, 2008, Patriot entered into the merger agreement
with Magnum, Colt Merger Corporation, a wholly owned subsidiary
of Patriot, and the ArcLight Funds, acting jointly as the
stockholder representative. Under the terms and conditions set
forth in the merger agreement, Magnum stockholders will receive
up to 11,901,729 shares of Patriot common stock on the date
of the merger. The Patriot common stock issuable pursuant to the
merger agreement represents approximately 31% of Patriot’s
outstanding common stock as of the date of the merger agreement
on a pro forma basis for the issuance in the merger. The
11,901,729 shares of Patriot common stock to be issued to
the holders of common stock of Magnum pursuant to the merger
agreement include the shares of Patriot common stock to be
issued in respect of the Magnum common stock issued upon the
conversion of the Magnum convertible notes. See
“Financing Arrangements — Magnum Convertible
Notes Issuance” for details. The acquisition will be
accounted for by Patriot using the purchase method of
accounting. Under this method of accounting, the purchase price
will be allocated to the fair value of the net assets acquired.
The excess purchase price over the fair value of the assets
acquired, if any, will be allocated to goodwill.
On May 28, 2008, Patriot completed a private offering of
$200 million in aggregate principal amount of 3.25%
Convertible Senior Notes due 2013. The Patriot convertible notes
will be convertible into cash and, if applicable, shares of
Patriot’s common stock. See “— Liquidity
and Capital Resources — Private Convertible Debt
Offering” for details.
Basis of
Preparation
The information discussed below primarily relates to
Patriot’s historical results and may not necessarily
reflect what its financial position, results of operations and
cash flows will be in the future or would have
been as a stand-alone company during the periods presented.
Patriot’s capital structure changed significantly at the
date of its spin-off from Peabody. On October 31, 2007,
Patriot received a net contribution from Peabody of
$781.3 million, which reflected the following:
•
retention by Peabody of certain retiree healthcare liabilities
of $615.8 million;
•
the forgiveness of the outstanding intercompany payables to
Peabody on October 31, 2007 of $81.5 million;
•
the retention by Patriot of trade accounts receivable at
October 31, 2007, previously recorded through intercompany
receivables, of $68.6 million;
•
a $30.0 million cash contribution;
•
the retention by Peabody of assets and asset retirement
obligations related to certain Midwest mining operations of a
net $8.1 million;
•
less the transfer of intangible assets of $22.7 million
related to purchased contract rights for a supply contract
retained by Peabody.
At spin-off, Patriot entered into certain on-going operational
agreements with Peabody to increase the price paid to Patriot
under a major existing coal sales agreement to be more
reflective of the then current market pricing for similar
quality coal. We encourage you to read Patriot’s Unaudited
Pro Forma Consolidated Financial Data provided within this
Management’s Discussion and Analysis of Financial Condition
and Results of Operations to better understand how
Patriot’s results have been impacted by the separation from
Peabody and the various separation agreements that were
effective with the spin-off transaction. The consolidated
financial statements presented below include allocations of
Peabody expenses, assets and liabilities through the date of the
spin-off, including the following items:
Selling
and Administrative Expenses
For the periods prior to the spin-off, Patriot’s historical
selling and administrative expenses were based on an allocation
of Peabody general corporate expenses to all of its mining
operations, both foreign and domestic, based on principal
activity, headcount, tons sold or revenues as appropriate. The
allocated expenses generally reflect service costs for marketing
and sales, general accounting, legal, finance and treasury,
public relations, human resources, environmental, engineering
and internal audit. The variance in Patriot’s historical
selling and administrative expenses relates to fluctuations in
Peabody’s overall selling and administrative expenses.
These allocated expenses are not necessarily indicative of the
costs Patriot would have incurred as a stand-alone company.
Interest
Expense
For the periods prior to the spin-off, Patriot’s historical
interest expense primarily related to fees for letters of credit
and surety bonds used to guarantee its reclamation,
workers’ compensation, retiree healthcare and lease
obligations as well as interest expense related to intercompany
notes with Peabody. Patriot’s capital structure changed
following its spin-off from Peabody, and effective
October 31, 2007, Patriot entered into a four-year
revolving credit facility. See “— Liquidity
and Capital Resources — Credit Facility” for
information about Patriot’s new facility. The intercompany
notes totaling $62.0 million with Peabody were forgiven at
spin-off.
Income
Tax Provision
Income taxes are accounted for using a balance sheet approach in
accordance with SFAS No. 109, “Accounting for
Income Taxes” (SFAS No. 109). Patriot accounts
for deferred income taxes by applying statutory tax rates in
effect at the date of the balance sheet to differences between
the book and tax basis of assets and liabilities. A valuation
allowance is established if it is “more likely than
not” that the related tax benefits will not be realized. In
determining the appropriate valuation allowance, Patriot
considers projected
realization of tax benefits based on expected levels of future
taxable income, available tax planning strategies and the
overall deferred tax position.
SFAS No. 109 specifies that the amount of current and
deferred tax expense for an income tax return group are to be
allocated among the members of that group when those members
issue separate financial statements. For purposes of the
consolidated financial statements, Patriot’s income tax
expense has been recorded as if it filed a consolidated tax
return separate from Peabody, notwithstanding that a majority of
the operations were historically included in the
U.S. consolidated income tax return filed by Peabody.
Patriot’s valuation allowance was also determined on the
separate tax return basis. Additionally, Patriot’s tax
attributes (i.e. net operating losses and Alternative Minimum
Tax credits) have been determined based on
U.S. consolidated tax rules describing the apportionment of
these items upon departure (i.e. spin-off) from the Peabody
consolidated group.
Peabody was managing its tax position for the benefit of its
entire portfolio of businesses. Peabody’s tax strategies
are not necessarily reflective of the tax strategies that
Patriot would have followed or will follow as a stand-alone
company, nor were they necessarily strategies that optimized
Patriot’s stand-alone position. As a result, Patriot’s
effective tax rate as a stand-alone entity may differ
significantly from those prevailing in historical periods.
Results
of Operations
Segment
Adjusted EBITDA
The discussion of Patriot’s results of operations below
includes references to and analysis of its Appalachia and
Illinois Basin Segments’ Adjusted EBITDA results. Adjusted
EBITDA is defined as net income (loss) before deducting net
interest expense, income taxes, minority interests, asset
retirement obligation expense and depreciation, depletion and
amortization. Segment Adjusted EBITDA is used by management
primarily as a measure of Patriot’s segments’
operating performance. Because Segment Adjusted EBITDA is not
calculated identically by all companies, Patriot’s
calculation may not be comparable to similarly titled measures
of other companies. Adjusted EBITDA is reconciled to its most
comparable measure under generally accepted accounting
principles in “Selected Historical Consolidated
Financial Information of Patriot”. Segment Adjusted
EBITDA excludes selling, general and administrative expenses,
past mining obligation expense and gain on disposal of assets
and is reconciled to its most comparable measure below under Net
Income (Loss).
Geologic
Conditions
Patriot’s results are impacted by geologic conditions as
they relate to coal mining, and these conditions refer to the
physical nature of the coal seam and surrounding strata and its
effect on the mining process. Geologic conditions that can have
an adverse effect on underground mining include thinning coal
seam thickness, rock partings within a coal seam, weak roof or
floor rock, sandstone channel intrusions, groundwater and
increased stresses within the surrounding rock mass due to over
mining, under mining and overburden changes. The term
“adverse geologic conditions” is used in general to
refer to these and similar situations where the geologic setting
can negatively affect the normal mining process. Adverse
geologic conditions would be markedly different from those that
would be considered typical geologic conditions for a given
mine. Since over 90% of Patriot’s production is sourced
from underground operations, geologic conditions are a major
factor in its results of operations.
Revenues increased by $14.7 million and Segment Adjusted
EBITDA increased by $17.0 million in the three months ended
March 31, 2008 compared to the prior year, primarily driven
by higher average selling prices, partially offset by lower
production volume. During the first quarter of 2008, average
sales prices at several of Patriot’s mines increased as
compared to the prior year, reflecting a combination of improved
contract pricing and higher spot prices. Lower production volume
resulted from production shortfalls at our Federal mine
primarily due to two roof falls and in the Illinois Basin due to
flooding and inclement weather.
Tons
Sold and Revenues
Three Months Ended
March 31,
Increase (Decrease)
2008
2007
Tons/$
%
(Dollars and tons in thousands, except per ton data)
(Unaudited)
Tons Sold:
Appalachia Mining Operations
3,180
3,650
(470
)
(12.9
)%
Illinois Basin Mining Operations
1,905
2,099
(194
)
(9.2
)%
Total Tons Sold
5,085
5,749
(664
)
(11.5
)%
Revenue:
Appalachia Mining Operations
$
212,762
$
201,453
$
11,309
5.6
%
Illinois Basin Mining Operations
66,339
67,588
(1,249
)
(1.8
)%
Appalachia — Other
5,233
622
4,611
n/a
Total Revenue
$
284,334
$
269,663
$
14,671
5.4
%
Average sales price per ton sold:
Appalachia Mining Operations
$
66.91
$
55.19
$
11.72
21.2
%
Illinois Basin Mining Operations
34.82
32.20
2.62
8.1
%
Revenues in the Appalachia segment were higher in the three
months ended March 31, 2008 compared to the same period in
2007. The increase in revenues primarily related to the $11.72
per ton average sales price increase, partially offset by lower
sales volumes. Average sales prices increased reflecting higher
contract pricing, including the repricing of a major coal supply
agreement with Peabody as part of the spin-off, as well as
higher spot sales prices, particularly for coal sold into the
export market. The Appalachia coal markets experienced a major
increase in spot coal prices, generally driven by increases in
international coal prices and an international supply/demand
imbalance.
In the three months ended March 31, 2008, sales volumes in
the Appalachia segment were lower compared to the same period in
2007. Sales volumes were reduced due to production shortfalls
stemming from two roof falls caused by adverse geologic
conditions at Patriot’s Federal mine in the first quarter.
Longwall production has resumed in the second quarter of 2008,
but was curtailed through the latter portion of the first
quarter of 2008. Partially offsetting this reduction to sales
volumes were higher volumes at three of Patriot’s other
Appalachia business units. In early 2007, Patriot experienced
performance difficulties and adverse geological conditions at
several of its company-operated and contract mines. Patriot made
changes in the second and third quarter of 2007, suspending the
operations at some locations and transferring equipment and
supplies to better performing business units. In the first
quarter of 2008, Patriot continued to see higher production and
sales volume from these operational changes.
Other revenues in Appalachia were higher in the three months
ended March 31, 2008 compared to the same period in 2007.
In addition to royalty income, other revenues in 2008 included
the sale of purchased coal as Patriot was able to take advantage
of rising spot market prices.
The decrease in the Illinois Basin segment revenue for the three
months ended March 31, 2008 compared to the prior year
reflected lower sales volumes driven by severe weather
conditions, including ice storms, heavy rains and flooding that
reduced production and delayed barge shipments, partially offset
by higher average sales prices.
Segment Adjusted EBITDA for Appalachia increased in the three
months ended March 31, 2008 from the prior year primarily
due to higher average selling prices and lower operating costs.
Lower operating costs primarily related to lower equipment
repair costs and lower spending related to the operational
changes that were made in mid-2007 at various company-operated
and contract mines. Two of Patriot’s mines experienced
longwall, continuous miner and other equipment rebuilds in the
first quarter of 2007 that were not experienced in the first
quarter of 2008. These improvements occurred in spite of
production shortfalls at Patriot’s Federal mine in the
first quarter of 2008, which, as discussed above, were caused by
two roof falls resulting from adverse roof conditions.
Segment Adjusted EBITDA for the Illinois Basin decreased in the
three months ended March 31, 2008 from the prior year
primarily due to lower revenues as discussed above, higher costs
related to repairs and maintenance related to roofbolting and
higher fuel costs.
Net
Income (Loss)
Three Months Ended
Increase (Decrease)
March 31,
to Net Income
2008
2007
$
%
(Dollars in thousands)
(Unaudited)
Segment Adjusted EBITDA
$
47,337
$
30,370
$
16,967
55.9
%
Corporate and Other:
Past mining obligations
(22,121
)
(38,372
)
16,251
42.4
%
Net gain on disposal of assets
194
35,226
(35,032
)
(99.4
)%
Selling and administrative expenses
(8,289
)
(10,909
)
2,620
24.0
%
Total Corporate and Other
(30,216
)
(14,055
)
(16,161
)
(115.0
)%
Depreciation, depletion and amortization
(18,610
)
(21,358
)
2,748
12.9
%
Asset retirement obligation expense
(3,416
)
(5,655
)
2,239
39.6
%
Interest expense
(2,322
)
(2,825
)
503
17.8
%
Interest income
3,249
2,646
603
22.8
%
Income (loss) before income taxes and minority interest
(3,978
)
(10,877
)
6,899
63.4
%
Income tax benefit
912
—
912
n/a
Minority interests
—
(1,074
)
1,074
n/a
Net loss
$
(3,066
)
$
(11,951
)
$
8,885
74.3
%
Past mining obligations were lower in the three months ended
March 31, 2008 than the corresponding period in the prior
year primarily due to the retention by Peabody of a portion of
Patriot’s liability at spin-off. If Patriot’s
liability had been on the same basis in 2007 as it was in 2008,
the amortization of the actuarial loss related to Patriot’s
retiree healthcare plans would have been lower in the three
months ended March 31, 2008 due to an increase in the
discount rate. See “— Unaudited Pro Forma
Consolidated Financial Data” below for more information.
Net gain on disposal of assets was $35.0 million lower in
the three months ended March 31, 2008 compared to the prior
year due to a coal reserve transaction in the first quarter of
2007 that resulted in a gain of $35.2 million. There were
no similar transactions in the first quarter of 2008. Property
sales in 2007 are not indicative of the level Patriot expects on
an ongoing basis.
Patriot’s historical selling and administrative expenses
for the three months ended March 31, 2007 were based on an
allocation of Peabody general corporate expenses to all of its
mining operations, both foreign and domestic. Selling and
administrative expenses for the three months ended
March 31, 2008 represent Patriot’s actual expenses
incurred as a stand-alone company.
Depreciation, depletion and amortization decreased in the three
months ended March 31, 2008 compared to the prior year
primarily due to the closure or suspension of several
contractor-operated mines and higher advance mining royalty and
purchased contract amortization in 2007.
Asset retirement obligation expense decreased in the three
months ended March 31, 2008 compared to the prior year
primarily due to the acceleration of a mine closure in early
2007, the extension of the life of Patriot’s Federal mine
in mid-2007 as a result of the acquisition of adjoining coal
reserves, and higher expense in the first quarter of 2007
related to Patriot’s annual review of the asset retirement
obligation.
The decrease in interest expense in the first quarter of 2008
was primarily due to the forgiveness of a Peabody intercompany
demand note at spin-off.
Interest income increased in 2008 compared to the prior year due
to additional interest income on notes receivable that resulted
from the sale of Kentucky coal reserves in the first half of
2007.
Patriot reported an income tax benefit of $0.9 million for
the three months ended March 31, 2008, based on the
forecasted effective tax rate for the current year. For the
three months ended March 31, 2007, no income tax provision
was recorded due to projected net operating losses for the year
ended December 31, 2007.
Patriot acquired an effective controlling interest in KE
Ventures, LLC during the first quarter of 2006, and began
consolidating KE Ventures, LLC in its results in 2006. The
portion of earnings that represent the interests of the minority
owners are deducted from Patriot’s income (loss) before
income taxes and minority interests to determine net income
(loss). The minority interest recorded in 2007 represented the
share of KE Ventures, LLC earnings in which the minority holders
were entitled to participate. In the second half of 2007,
Patriot increased its ownership in KE Ventures to 100%.
Unaudited
Pro Forma Consolidated Financial Data
The unaudited pro forma consolidated financial information
presented below has been derived from Patriot’s unaudited
historical condensed consolidated financial statements as of and
for the three months ended March 31, 2007. This unaudited
pro forma consolidated financial information should be read in
conjunction with Results of Operations and the unaudited
condensed consolidated financial statements and notes related
thereto included elsewhere in this proxy
statement/prospectus.
The pro forma adjustments are based on assumptions that
Patriot’s management believes are reasonable. The unaudited
pro forma consolidated financial information is for illustrative
and informational purposes only and is not intended to represent
or be indicative of what Patriot’s results of operations or
financial position would have been had the separation and
distribution and related transactions occurred on
January 1, 2007. The unaudited pro forma consolidated
financial information also should not be considered
representative of Patriot’s future results of operations or
financial position.
The unaudited pro forma consolidated statement of operations for
the three months ended March 31, 2007 reflects adjustments
to Patriot’s historical financial statements to present its
results as if the spin-off occurred on January 1, 2007.
These adjustments include, among other things, an increase to
revenue (and related royalties and taxes) from repricing of a
coal supply agreement to reflect the then current market pricing
for similar quality coal and a reduction to Patriot’s costs
associated with the assumption by Peabody of certain of
Patriot’s retiree healthcare liabilities.
Income (loss) before income taxes and minority interest
(10,877
)
25,372
14,495
Income tax provision
—
6,948
(h)
6,948
Minority interest
1,074
—
1,074
Net income (loss)
$
(11,951
)
$
18,424
$
6,473
Notes to
Unaudited Pro Forma Consolidated Statement of
Operations
(a)
Reflects an increase to revenues (and related royalties and
taxes) related to the repricing of a coal supply agreement to
increase the price paid to Patriot to be more reflective of the
then current market pricing for similar quality coal at the time
of the spin-off.
(b)
Reflects a decrease to operating costs and expenses for the
impact of Peabody’s agreement to assume certain of
Patriot’s retiree healthcare liabilities, which totaled
$603.4 million as of December 31, 2007.
(c)
Reflects reversal of historical expense related to pension
benefit obligations that were not assumed by Patriot.
(d)
Reflects the non-cash transfer to Peabody of an intangible asset
related to a purchased contract right recorded on Patriot’s
historical financial statements in Investments and Other Assets
and historically sourced from Patriot mining operations. As part
of the spin-off, Peabody retained the coal supply contract with
the ultimate customer.
(e)
Reflects adjustment for estimated selling and administrative
costs for Patriot’s stand-alone management and
administrative structure and functions. Prior to the spin-off,
these services were provided by Peabody under various agreements
between Peabody and its subsidiaries, and the historical amount
was the result of an allocation of Peabody’s overall
general and administrative costs. The allocation of these
Peabody costs was not deemed reasonable for Patriot on a
stand-alone basis and a pro forma amount was estimated based on
a detailed
build-up of
expected support costs by function for the Patriot operations as
a stand-alone business. The costs allocated to Patriot by
Peabody are higher than Patriot’s pro forma estimate
because the Peabody allocation reflected higher costs for areas
such as government relations, information systems development,
office space, executive incentive compensation, and support
departments such as accounting, law, engineering and human
resources. In addition, the Peabody allocation included costs
for major strategy and growth initiatives, most of which did not
directly impact the Patriot operations.
Reflects higher costs for surety bonds and letters of credit
based on current rates for these instruments and on
Patriot’s requirements to secure financial obligations for
reclamation, workers’ compensation and postretirement
benefits. The historical financial statements reflect an
allocation of Peabody’s fees related to these guarantees.
(g)
Reflects the reversal of the interest expense related to the
intercompany note payable to Peabody.
(h)
Reflects tax impact of pro forma adjustments based on the
statutory rate adjusted for tax accounting as follows:
Revenues were $1,073.4 million and Segment Adjusted EBITDA
was $101.7 million for the year ended December 31,2007, both lower than the prior year primarily driven by lower
sales volumes due to production shortfalls. Production
shortfalls resulted from a delayed longwall move at one of
Patriot’s mines and increased levels of adverse geologic
conditions including excessive groundwater from heavy spring
rains, roof falls and roof partings. Net loss was
$106.9 million in 2007 compared to $13.5 million in
the prior year. The increased net loss was mainly driven by the
lower sales volumes and higher operating costs.
Tons
Sold and Revenues
Year Ended December 31,
Increase (Decrease)
2007
2006
Tons/$
%
(Dollars and tons in thousands, except per ton amounts)
Appalachia
14,432
15,292
(860
)
(5.6
)%
Illinois Basin
7,711
8,998
(1,287
)
(14.3
)%
Total Tons Sold
22,143
24,290
(2,147
)
(8.8
)%
Appalachia
$
821,116
$
890,198
$
(69,082
)
(7.8
)%
Illinois Basin
252,246
257,721
(5,475
)
(2.1
)%
Total Revenues
$
1,073,362
$
1,147,919
$
(74,557
)
(6.5
)%
Average sales price per ton sold:
Appalachia
$
56.89
$
58.21
$
(1.32
)
(2.3
)%
Illinois Basin
32.71
28.64
4.07
14.2
%
The decrease in the Appalachia revenue for the year ended
December 31, 2007 compared to the prior year reflected
lower sales volumes driven by adverse geologic conditions, a
delayed longwall move at one of Patriot’s mines, and the
loss of a coal supplier in late 2006, partially offset by
additional volumes from the Black Stallion contract mine, which
began production in the third quarter of 2006. Adverse geologic
conditions included roof falls and partings that reduced
saleable coal yields.
The decrease in the Illinois Basin revenue for the year ended
December 31, 2007 compared to the prior year reflected
reduced sales volumes associated mainly with the closure of the
Big Run mine, partially offset
by higher pricing principally resulting from a price increase on
a long-term contract under the market price adjustment provision
of the contract.
Segment
Adjusted EBITDA
Year Ended December 31,
Increase (Decrease)
2007
2006
$
%
(Dollars in thousands)
Appalachia
$
89,850
$
204,827
$
(114,977
)
(56.1
)%
Illinois Basin
11,862
(1,900
)
13,762
n/a
Segment Adjusted EBITDA
$
101,712
$
202,927
$
(101,215
)
(49.9
)%
Segment Adjusted EBITDA for Appalachia decreased in 2007 from
the prior year primarily due to lower sales volume as described
above and higher operating costs primarily due to additional
materials and supplies required for the delayed longwall move at
one of Patriot’s mines, roof control, equipment repair and
maintenance, as well as higher labor expenses related to a labor
agreement that became effective on January 1, 2007,
partially offset by lower revenue-based taxes and royalties.
Segment Adjusted EBITDA for the Illinois Basin increased in 2007
from the prior year primarily due to the higher average sales
price as discussed above. Operating costs decreased in 2007
compared to the prior year primarily due to the closure of the
Big Run mine, partially offset by higher costs related to
preparation plant maintenance and additional equipment
requirements at one of Patriot’s mines associated with roof
falls and excessive water.
Net
Income (Loss)
Year Ended December 31,
Increase (Decrease) to Income
2007
2006
$
%
(Dollar in thousands)
Segment Adjusted EBITDA
$
101,712
$
202,927
$
(101,215
)
(49.9
)%
Corporate and Other:
Past mining obligation expense
(137,602
)
(106,880
)
(30,722
)
(28.7
)%
Net gain on disposal of assets
81,458
78,631
2,827
3.6
%
Selling and administrative expenses
(45,137
)
(47,909
)
2,772
5.8
%
Total corporate and other
(101,281
)
(76,158
)
(25,123
)
(33.0
)%
Depreciation, depletion and amortization
(85,640
)
(86,458
)
818
0.9
%
Asset retirement obligation expense
(20,144
)
(24,282
)
4,138
17.0
%
Interest expense:
Peabody
(4,969
)
(5,778
)
809
14.0
%
Third-Party
(3,368
)
(5,641
)
2,273
40.3
%
Interest income
11,543
1,417
10,126
n/a
Income (loss) before income taxes and minority interest
(102,147
)
6,027
(108,174
)
n/a
Income tax provision
—
(8,350
)
8,350
n/a
Minority interests
(4,721
)
(11,169
)
6,448
57.7
%
Net income (loss)
(106,868
)
(13,492
)
(93,376
)
n/a
Effect of minority purchase arrangement
(15,667
)
—
(15,667
)
n/a
Net income (loss) attributable to common stockholders
$
(122,535
)
$
(13,492
)
$
(109,043
)
n/a
Past
Mining Obligation Expense
Past mining obligation expenses were higher in 2007 than the
prior year primarily due to higher retiree healthcare costs
resulting from higher amortization of actuarial loss and
increased funding for multi-employer
healthcare and pension plans in accordance with provisions of
2006 legislation and the 2007 National Bituminous Coal Wage
Agreement (effective January 1, 2007). Patriot’s 2007
and 2006 operating costs included approximately
$51.9 million and $46.1 million, respectively, for
certain retiree healthcare obligation expenses that would have
been assumed by Peabody had the proposed spin-off occurred at
the beginning of each period.
Net
Gain on Disposal of Assets
Net gain on disposal of assets was $2.8 million higher for
2007. The net gain for the 2007 period was attributable
principally to the sale of 88 million tons of coal
reserves, and surface land in Kentucky and the Big Run Mine for
$26.5 million in cash and $69.4 million in notes
receivable which resulted in a gain of $78.5 million. The
net gain for the 2006 period was primarily attributable to the
sale of coal reserves and surface land located in Kentucky and
West Virginia for proceeds of $84.9 million, including cash
of $31.8 million and notes receivable of $53.1 million
which resulted in a gain of $66.6 million. Property sales
in 2007 and 2006 are not indicative of the level Patriot
would expect on an ongoing basis.
Selling
and Administrative Expenses
For the period prior to the spin-off, Patriot’s historical
selling and administrative expenses are based on an allocation
of Peabody general corporate expenses to all of its mining
operations, both foreign and domestic. The decrease of
$2.8 million in 2007 compared to 2006 reflected changes in
Peabody’s allocable selling and administrative expenses as
well as changes to the allocation base. These allocated expenses
are not necessarily indicative of the costs Patriot would incur
as a stand-alone company.
Depreciation,
Depletion and Amortization
Depreciation, depletion and amortization for 2007 decreased
slightly compared to 2006 primarily due to the closure of the
Big Run mine.
Asset
Retirement Obligation Expense
Asset retirement obligation expense decreased in 2007 compared
to the prior year primarily due to accelerated reclamation work
at closed mines in 2006 with less activity in 2007.
Interest
Expense (Income)
Third party interest expense decreased in 2007 as KE Ventures,
LLC repaid $23.8 million in bank loans in the second half
of 2006 and replaced the bank debt with a Peabody note which was
subsequently forgiven at spin-off.
Interest income increased in 2007 compared to the prior year due
to additional interest income on notes receivable that resulted
from the sale of Kentucky coal reserves in the second half of
2006 and the first half of 2007.
Income
Tax Provision
In 2006, Patriot incurred $8.4 million of tax obligation
for federal taxes from the disposal of assets and the preference
limitation on percentage depletion. Patriot was included in
Peabody’s consolidated group during 2006 and the
consolidated group had sufficient net operating losses available
to offset the taxable income of Patriot, so this tax obligation
did not require Patriot to make cash payments.
Minority
Interests
Patriot acquired an effective controlling interest in KE
Ventures, LLC during the first quarter of 2006, and began
consolidating KE Ventures, LLC in Patriot’s results in
2006. The portion of earnings that represents the interests of
the minority owners is deducted from Patriot’s income
(loss) before income taxes and minority interests to determine
net income (loss). The minority interest recorded in 2007 and
2006 represented the
share of KE Ventures, LLC earnings in which the minority holders
were entitled to participate. Patriot acquired the remaining
minority interest in KE Ventures, LLC in 2007.
Effect
of Minority Purchase Arrangement
Upon the spin-off from Peabody, the minority interest holders of
KE Ventures, LLC held an option that could require Patriot to
purchase the remaining 18.5% of KE Ventures, LLC upon a change
in control. The minority owners of KE Ventures, LLC exercised
this option in 2007, and Patriot acquired the remaining minority
interest in KE Ventures, LLC on November 30, 2007 for
$33.0 million. Because the option requiring Patriot to
purchase KE Ventures, LLC is considered a mandatorily redeemable
instrument outside of Patriot’s control, amounts paid to
the minority interest holders in excess of carrying value of the
minority interests in KE Ventures, LLC, or $15.7 million,
is reflected as an increase in net loss attributable to common
stockholders. Because this obligation was fully redeemed as of
December 31, 2007, adjustments to net income attributable
to common stockholders will not be required in future periods.
Unaudited
Pro Forma Consolidated Financial Data
The unaudited pro forma consolidated statement of operations
presented below has been derived from Patriot’s audited
historical consolidated financial statements for the year ended
December 31, 2007. This unaudited pro forma consolidated
financial information should be read in conjunction with Results
of Operations and the consolidated financial statements and
notes related to those consolidated financial statements
included elsewhere in this proxy statement/prospectus.
The unaudited pro forma consolidated statement of operations for
the year ended December 31, 2007 reflects adjustments to
Patriot’s historical financial statements to present its
results as if the spin-off occurred on January 1, 2007.
These adjustments include, among other things, an increase to
revenue (and related royalties and taxes) from repricing of a
coal supply agreement and a reduction to Patriot’s costs
associated with the assumption by Peabody of certain of
Patriot’s retiree healthcare liabilities estimated at a
present value of $603.4 million as of December 31,2007. The unaudited pro forma consolidated statement of
operations for the year ended December 31, 2007 does not
reflect adjustments to Patriot’s historical financial
statements relating to the proposed acquisition of Magnum.
The pro forma adjustments are based on assumptions that
management believes are reasonable. The unaudited pro forma
consolidated financial information is for illustrative and
informational purposes only and is not intended to represent or
be indicative of what Patriot’s results of operations or
financial position would have been had the separation and
distribution and the related transactions occurred on the dates
indicated. The unaudited pro forma consolidated financial
information also should not be considered representative of
Patriot’s future results of operations or financial
position.
Income (loss) before income taxes and minority interests
(102,147
)
88,221
(13,926
)
Income tax provision
—
5,967
(h)
5,967
Minority interests
4,721
—
4,721
Net income (loss)
(106,868
)
82,254
(24,614
)
Effect of minority purchase arrangement
(15,667
)
—
(15,667
)
Net income (loss) attributable to common stockholders
$
(122,535
)
$
82,254
$
(40,281
)
Notes to Unaudited Pro Forma Consolidated Statement of
Operations
(a)
Reflects an increase to revenues (and related royalties and
taxes) related to the repricing of a coal supply agreement to
increase the price paid to Patriot to be more reflective of the
then current market pricing for similar quality coal at the time
of the spin-off.
(b)
Reflects a decrease to operating costs and expenses for the
impact of Peabody’s agreement to assume certain of
Patriot’s retiree healthcare liabilities in the aggregate
amount of $603.4 million as of December 31, 2007.
(c)
Reflects reversal of historical expense related to pension
benefit obligations that were not assumed by Patriot.
(d)
Reflects the non-cash transfer to Peabody of an intangible asset
related to a purchased contract right recorded on Patriot’s
historical financial statements in Investments and Other Assets
and historically sourced from Patriot mining operations. As part
of the spin-off, Peabody retained the coal supply contract with
the ultimate customer.
(e)
Reflects adjustment for estimated selling and administrative
costs for Patriot’s stand-alone management and
administrative structure and functions. Prior to the spin-off,
these services were provided by Peabody under various agreements
between Peabody and its subsidiaries, and the historical amount
was the result of an allocation of Peabody’s overall
selling and administrative costs. The allocation of these
Peabody
costs was not deemed reasonable for Patriot on a stand-alone
basis and a pro forma amount was estimated based on a detailed
build-up of
expected support costs by function for the Patriot operations as
a stand alone business. The costs allocated to Patriot by
Peabody were higher than Patriot’s pro forma estimate
because the Peabody allocation reflected higher costs compared
to Patriot’s stand-alone estimate for areas such as
government relations, information systems development, office
space, executive incentive compensation and support departments
such as accounting, law, engineering and human resources. In
addition, the Peabody allocation included costs for major
strategy and growth initiatives, most of which did not directly
impact the Patriot operations.
(f)
Reflects higher costs for surety bonds and letters of credit
based on anticipated rates for these instruments and on
Patriot’s requirements to secure financial obligations for
reclamation, workers’ compensation and post retirement
benefits. The historical financial statements reflect an
allocation of Peabody’s fees related to these guarantees.
(g)
Reflects the reversal of the interest expense related to the
intercompany note payable to Peabody.
(h)
Reflects tax impact of pro forma adjustments based on the
statutory rate adjusted for tax accounting as follows:
Patriot’s revenues increased in 2006 compared to the prior
year primarily driven by increases to average per ton sales
prices. In 2005 and early 2006, strong demand for coal was
driven by the growing economy, low customer stockpiles, capacity
constraints of nuclear generation and high costs for competing
fuels used for electricity generation. Additionally,
metallurgical coal was sold at a significant premium to steam
coal due to global steel production growth during these periods.
Later in 2006, steam and metallurgical coal prices decreased
from these highs but still remained above historic levels.
While revenues grew in 2006, Patriot’s Segment Adjusted
EBITDA was unfavorably impacted by higher costs from adverse
geologic conditions and equipment failures at its mines as well
as higher contract miner costs.
The decrease of $25.8 million in Segment Adjusted EBITDA in
2006 compared to 2005 was the result of cost increases due to
higher sales-related production taxes and royalties and higher
production costs associated with adverse geologic conditions at
two mines, partially offset by higher sales prices and volumes.
(Dollars and tons in thousands, except per ton amounts)
Tons Sold
Appalachia
15,292
14,066
1,226
8.7
%
Illinois Basin
8,998
9,719
(721
)
(7.4
)%
Total Tons Sold
24,290
23,785
505
2.1
%
Revenues
Appalachia
$
890,198
$
742,753
$
147,445
19.9
%
Illinois Basin
257,721
235,524
22,197
9.4
%
Total Revenues
$
1,147,919
$
978,277
$
169,642
17.3
%
Average sales price per ton sold:
Appalachia
$
58.21
$
52.80
$
5.41
10.2
%
Illinois Basin
28.64
24.23
4.41
18.2
%
In 2006, the increase in total revenues over 2005 resulted
primarily from demand-driven increases in sales prices for
metallurgical and steam coal and an increase in sales volumes.
In 2006, sales in Appalachia increased over the prior year as
average per ton sales prices increased $5.41, driven by
increases in demand and improved sulfur premiums for
Patriot’s produced coal. Sales volumes increased due to the
addition of KE Ventures, LLC activity, which was combined in
2006 due to the increase in Patriot’s ownership interest.
Sales of KE Ventures, LLC added $135.4 million of revenues
in 2006. Partially offsetting this increase was lower production
at one of Patriot’s metallurgical coal mines and at
contract miner operations, as both experienced adverse geologic
conditions and equipment failures. Sales in the Illinois Basin
increased $22.2 million in 2006 compared to 2005 primarily
from the demand-driven increases in sales prices, partially
offset by lower volumes due to production shortfalls caused by
equipment maintenance downtime and lack of barge availability
towards the end of 2006. Other revenues not related to coal
sales, primarily including coal royalty income, in Appalachia
decreased $12.0 million compared to 2005, primarily due to
a gain from a customer contract buyout in 2005.
In 2006, Segment Adjusted EBITDA decreased $22.3 million in
the Appalachia segment and $3.5 million in the Illinois
Basin segment compared to the prior year. In the Appalachia
segment, the increase in sales discussed above was offset by an
increase of $169.7 million in net operating costs. This
increase for 2006 compared to 2005 included $98.3 million
from the consolidation of KE Ventures, LLC, which was not
consolidated in Patriot’s 2005 results. In 2005, Patriot
owned a 49% interest in KE Ventures, LLC and reported
Patriot’s $16.9 million interest in the joint
venture’s net income in “Income from equity
affiliates.”
Patriot pays various taxes and royalties that are indexed to its
sales. The increase in sales during 2006 discussed above
resulted in an increase in sales-related taxes and royalties of
$35.0 million. Operating costs increased $28.5 million
in 2006 due to production issues at one of Patriot’s
metallurgical coal mines as
discussed previously. In the Illinois Basin, operating costs
increased $25.7 million in 2006 compared to 2005, primarily
due to higher labor costs from increased workforce headcount and
wage rates. Both segments were negatively impacted by higher
roof control costs in 2006 due to an increase in the use and
cost of roof bolts.
Net
Income (Loss)
Year Ended December 31,
Increase (Decrease) to Net Income (Loss) 2006 from 2005
2006
2005
$
%
Segment Adjusted EBITDA
$
202,927
$
228,745
$
(25,818
)
(11.3
)%
Corporate and Other:
Past mining obligation expense
(106,880
)
(104,053
)
(2,827
)
(2.7
)%
Net gain on disposal or exchange of assets
78,631
57,042
21,589
37.8
%
Selling and administrative expenses
(47,909
)
(57,123
)
9,214
16.1
%
Total Corporate and Other
(76,158
)
(104,134
)
27,976
26.9
%
Depreciation, depletion and amortization
(86,458
)
(65,972
)
(20,486
)
(31.1
)%
Asset retirement obligation expense
(24,282
)
(15,572
)
(8,710
)
(55.9
)%
Interest expense:
Peabody
(5,778
)
(4,960
)
(818
)
(16.5
)%
Third-Party
(5,641
)
(4,873
)
(768
)
(15.8
)%
Interest income
1,417
1,553
(136
)
(8.8
)%
Income before income taxes and minority interests
6,027
34,787
(28,760
)
n/a
Income tax provision
(8,350
)
—
(8,350
)
n/a
Minority interests
(11,169
)
—
(11,169
)
n/a
Net income (loss)
$
(13,492
)
$
34,787
$
(48,279
)
n/a
In 2006, Patriot’s net loss was $13.5 million, a
decrease of $48.3 million compared to net income of
$34.8 million in 2005. The decrease in net income in 2006
exceeded the decrease in Segment Adjusted EBITDA due to higher
depreciation, depletion and amortization expense reflecting the
acquisition of an additional interest in KE Ventures, LLC during
the first quarter of 2006.
Past
Mining Obligation Expense
Patriot’s 2006 operating costs included approximately
$46 million for certain retiree healthcare obligations that
would have been assumed by Peabody had the proposed spin-off
structure been in place at the beginning of 2006.
Net
Gain on Disposal or Exchange of Assets
In 2006, net gain on disposal of assets included sales of coal
reserves and surface land located in Kentucky and West Virginia
with a combined gain of $66.6 million. In 2005, net gain on
disposal or exchange of assets included a $37.4 million net
gain from an exchange of coal reserves as part of a dispute
settlement with a third-party supplier and a $6.2 million
net gain on an asset exchange from which Patriot received
Illinois Basin coal reserves.
Selling
and Administrative Expenses
Patriot’s historical selling and administrative expenses
are based on an allocation of Peabody general corporate expenses
to all of its mining operations, both foreign and domestic,
based on activity-based analysis, headcount, tons sold or
revenues, as appropriate. In 2006, the decrease of
$9.2 million compared to 2005 primarily related to the
expansion of Peabody’s allocation base as other mining
operations within Peabody
grew, thus reducing Patriot’s proportional share of the
general corporate expenses. These allocated expenses are not
necessarily indicative of the costs Patriot would incur as a
stand-alone company.
Depreciation,
Depletion and Amortization
The increase in 2006 of $20.5 million compared to 2005 was
primarily due to the consolidation of KE Ventures, LLC in 2006
and higher amortization of royalty rights.
Asset
Retirement Obligation Expense
The increase of $8.7 million in 2006 compared to 2005
related to accelerated reclamation work at closed mines and
reclamation plan revisions for certain operating mines.
Interest
Expense
Third-party interest expense primarily consists of fees related
to providing surety bonds or letters of credit to guarantee
workers’ compensation, reclamation, post-employment benefit
and lease obligations. Patriot’s capital structure changed
following its spin-off from Peabody.
Income
Tax Provision
In 2006, Patriot incurred $8.4 million of tax obligation
for federal taxes from the disposal of assets and the preference
limitation on percentage depletion. Patriot was included in
Peabody’s consolidated group during 2006 and the
consolidated group had sufficient net operating losses available
to offset the taxable income of Patriot, so this tax obligation
did not require Patriot to make cash payments.
Minority
Interests
Patriot acquired an effective controlling interest in KE
Ventures, LLC during the first quarter of 2006, and began
consolidating KE Ventures, LLC in Patriot’s results in
2006. The portion of earnings that represent the interests of
the minority owners is deducted from Patriot’s income
(loss) before income taxes and minority interests to determine
net income (loss). The minority interest recorded in 2006
represents the share of KE Ventures, LLC earnings in which the
minority holders were entitled to participate. Patriot’s
proportional share of KE Ventures, LLC earnings was included in
income from equity affiliates during 2005, therefore no minority
interest was recorded for KE Ventures, LLC.
Outlook
As discussed more fully under “Risk Factors Relating to
Patriot”, Patriot’s results of operations in the
near-term could be negatively impacted by poor weather
conditions, unforeseen adverse geologic conditions or equipment
problems at mining locations, the unavailability of
transportation for coal shipments, increased labor costs due to
the shortage of skilled labor, rising prices of key supplies,
mining equipment and commodities and the inability of contract
miners to fulfill delivery terms of their contracts. On a
long-term basis, Patriot’s results of operations could be
impacted by its ability to secure or acquire high-quality coal
reserves; Patriot’s ability to attract and retain skilled
employees and contract miners; Patriot’s ability to find
replacement buyers for coal under contracts with comparable
terms to existing contracts; and the passage of new or expanded
regulations that could limit Patriot’s ability to mine,
increase its mining costs, or limit its customers’ ability
to utilize coal as fuel for electricity generation. If upward
pressure on costs exceeds Patriot’s ability to realize
sales increases, or if Patriot experiences unanticipated
operating or transportation difficulties, its operating margins
would be negatively impacted. Patriot is experiencing increases
in operating costs related to steel-related products (including
roof control), replacement parts, belting products, contract
mining and healthcare, and has taken measures to attempt to
mitigate the increases in these costs. Management plans to
aggressively control costs and operating performance to mitigate
external cost pressures and geologic conditions.
Patriot’s fourth quarter 2007 results were negatively
impacted by the delayed longwall move at its Federal mine. The
Federal mine experienced two roof falls during the first quarter
of 2008 resulting in lower production and earnings. The Federal
longwall resumed production in early April 2008.
Patriot’s operating results are also impacted by market
conditions. International coal markets continue to grow, driven
by increased demand from the growing economies of China and
India where coal is both the primary domestic source of fuel and
the
lowest-cost
imported fuel for electricity generation. Patriot does not
currently sell coal into China, but Chinese demand is important
in determining worldwide coal prices. In addition to the
increased demand in China and India, demand increases in
Indonesia, South Africa and Russia are resulting in lower
exports. Brazil is experiencing increased steel production
resulting in the need for more coal imports. Additionally, coal
exports from Australia, a major coal producer, have continued to
be impacted by infrastructure limitations driven by rail and
port constraints.
Metallurgical coal continues to sell at a significant premium to
steam coal and Patriot expects to participate in the strong
international and domestic market for metallurgical coal through
production and export sales of metallurgical coal from
Patriot’s operations. Central Appalachia spot prices for
metallurgical coal and thermal coal have increased significantly
since the beginning of 2008. Patriot believes strong coal
markets will continue worldwide, as long as growth continues in
the U.S., Asia, South America and other economies that are
increasing coal demand for electricity generation and
steelmaking.
Without consideration of the Magnum acquisition, Patriot is
targeting 2008 sales volume of 23 to 25 million tons,
including 6.5 to 7.5 million tons of metallurgical coal. As
of March 31, 2008, substantially all of Patriot’s
expected 2008 production was priced. As of March 31, 2008,
Patriot’s total unpriced planned production for 2009 was
5.5 to 6.5 million tons of metallurgical and 3.5 to
4.5 million tons of thermal volumes and for 2010 was 7.5 to
8.5 million tons of metallurgical and 9.0 to 10.0 tons
of thermal volumes. The guidance provided under the caption
Outlook should be read in conjunction with the section entitled
“Special Note Regarding Forward-Looking Statements”and “Risk Factors Relating to Patriot.”Actual events and results may vary significantly from those
included in or contemplated or implied by the forward-looking
statements under Outlook. For additional information regarding
some of the risks and uncertainties that affect Patriot’s
business, see “Risk Factors Relating to
Patriot.”
Critical
Accounting Policies and Estimates
Patriot’s discussion and analysis of its financial
condition, results of operations, liquidity and capital
resources is based upon its consolidated financial statements,
which have been prepared in accordance with accounting
principles generally accepted in the United States. Generally
accepted accounting principles require that we make estimates
and judgments that affect the reported amounts of assets,
liabilities, revenues and expenses, and related disclosure of
contingent assets and liabilities. Patriot evaluates its
estimates on an on-going basis. Patriot bases its estimates on
historical experience and on various other assumptions that it
believes are reasonable under the circumstances, the results of
which form the basis for making judgments about the carrying
values of assets and liabilities that are not readily apparent
from other sources. Actual results may differ from these
estimates.
Patriot has significant long-term liabilities for its
employees’ postretirement benefit costs and workers’
compensation obligations. Detailed information related to these
liabilities is included in Notes 14 and 16 to
Patriot’s consolidated financial statements. Expense for
the year ended December 31, 2007 for these liabilities
totaled $127.9 million, while payments were
$100.5 million.
Patriot’s postretirement benefit and certain components of
its workers’ compensation obligations are actuarially
determined, and Patriot uses various actuarial assumptions,
including the discount rate and future cost trends, to estimate
the costs and obligations for these items. Patriot’s
discount rate is determined by utilizing a hypothetical bond
portfolio model which approximates the future cash flows
necessary to service its liabilities. Patriot makes assumptions
related to future trends for medical care costs in the estimates
of retiree healthcare and work-related injuries and illness
obligations. Patriot’s medical trend assumption is
developed by annually examining the historical trend of its cost
per claim data.
If Patriot’s assumptions do not materialize as expected,
actual cash expenditures and costs that Patriot incurs could
differ materially from its current estimates. Moreover,
regulatory changes could increase Patriot’s obligation to
satisfy these or additional obligations. Patriot’s most
significant employee liability is postretirement healthcare.
Assumed discount rates and healthcare cost trend rates have a
significant effect on the expense and liability amounts reported
for healthcare plans. Below we have provided two separate
sensitivity analyses, to demonstrate the significance of these
assumptions in relation to reported amounts.
Healthcare cost trend rate:
+1.0%
−1.0%
(Dollars in thousands)
Effect on total service and interest cost components
$
8,163
$
(7,494
)
Effect on (gain)/loss amortization component
15,102
(13,860
)
Effect on total postretirement benefit obligation
66,450
(60,983
)
Discount rate:
+0.5%
−0.5%
(Dollars in thousands)
Effect on total service and interest cost components
$
1,583
$
(1,990
)
Effect on (gain)/loss amortization component
(6,656
)
7,025
Effect on total postretirement benefit obligation
(28,934
)
31,758
Asset
Retirement Obligations
Patriot’s asset retirement obligations primarily consist of
spending estimates for surface land reclamation and support
facilities at both underground and surface mines in accordance
with federal and state reclamation laws as defined by each
mining permit. Asset retirement obligations are determined for
each mine using various estimates and assumptions including,
among other items, estimates of disturbed acreage as determined
from engineering data, estimates of future costs to reclaim the
disturbed acreage, the timing of these cash flows, and a
credit-adjusted, risk-free rate. As changes in estimates occur
(such as mine plan revisions, changes in estimated costs, or
changes in timing of the reclamation activities), the obligation
and asset are revised to reflect the new estimate after applying
the appropriate credit-adjusted, risk-free rate. If
Patriot’s assumptions do not materialize as expected,
actual cash expenditures and costs that Patriot incurs could be
materially different than currently estimated. Moreover,
regulatory changes could increase Patriot’s obligation to
perform reclamation and mine closing activities. Asset
retirement obligation expense for the year ended
December 31, 2007, was $20.1 million, and payments
totaled $15.9 million. See detailed information regarding
Patriot’s asset retirement obligations in Note 13 to
its consolidated financial statements.
Patriot accounts for income taxes in accordance with
SFAS No. 109, which requires that deferred tax assets
and liabilities be recognized using enacted tax rates for the
effect of temporary differences between the book and tax bases
of recorded assets and liabilities. SFAS No. 109 also
requires that deferred tax assets be reduced by a valuation
allowance if it is “more likely than not” that some
portion or all of the deferred tax asset will not be realized.
In its annual evaluation of the need for a valuation allowance,
Patriot takes into account various factors, including the
expected level of future taxable income and available tax
planning strategies. If actual results differ from the
assumptions made in its annual evaluation of its valuation
allowance, Patriot may record a change in valuation allowance
through income tax expense in the period this determination is
made.
In June 2006, the Financial Accounting Standards Board (FASB)
issued Interpretation No. 48, “Accounting for
Uncertainty in Income Taxes — an interpretation of
FASB Statement No. 109” (FIN No. 48). This
interpretation prescribes a recognition threshold and
measurement attribute for the financial statement recognition
and measurement of a tax position taken or expected to be taken
in a tax return. FIN No. 48 also provides guidance on
derecognition, classification, interest and penalties,
accounting in interim periods, disclosure and transition.
Patriot adopted the provisions of FIN No. 48 on
January 1, 2007, with no impact on retained earnings. See
Newly Adopted Accounting Pronouncements for additional
information.
Revenue
Recognition
In general, Patriot recognizes revenues when they are realizable
and earned. Patriot generated substantially all of its revenue
in 2007 from the sale of coal to its customers. Revenue from
coal sales is realized and earned when risk of loss passes to
the customer. Coal sales are made to Patriot’s customers
under the terms of coal supply agreements, most of which have a
term of one year or more. Under the typical terms of these coal
supply agreements, risk of loss transfers to the customer at the
mine or port, where coal is loaded to the rail, barge,
ocean-going vessel, truck or other transportation source that
delivers coal to its destination.
With respect to other revenues, other operating income, or gains
on asset sales recognized in situations unrelated to the
shipment of coal, we carefully review the facts and
circumstances of each transaction and apply the relevant
accounting literature as appropriate, and do not recognize
revenue until the following criteria are met: persuasive
evidence of an arrangement exists; delivery has occurred or
services have been rendered; the seller’s price to the
buyer is fixed or determinable; and collectability is reasonably
assured.
Share-Based
Compensation
Patriot has an equity incentive plan for employees and
non-employee directors that allows for the issuance of
share-based compensation in the form of restricted stock,
incentive stock options, nonqualified stock options, stock
appreciation rights, performance awards, restricted stock units
and deferred stock units. Patriot recognizes share-based
compensation expense in accordance with
SFAS No. 123(R), “Share-Based Payment”.
Patriot utilizes the Black-Scholes option pricing model to
determine the fair value of stock options. Determining the fair
value of share-based awards requires judgment, including
estimating the expected term that stock options will be
outstanding prior to exercise, the associated volatility, and a
risk-free rate. Judgment is also required in estimating the
amount of share-based awards expected to be forfeited prior to
vesting. If actual forfeitures differ significantly from these
estimates, share-based compensation expense could be materially
impacted.
Impairment
of Long-Lived Assets
Impairment losses on long-lived assets used in operations are
recorded when events and circumstances indicate that the assets
might be impaired and the undiscounted cash flows estimated to
be generated by those assets under various assumptions are less
than the carrying amounts of those assets. Impairment losses are
measured by comparing the estimated fair value of the impaired
asset to its carrying amount. There were no impairment losses
recorded during the periods covered by the consolidated
financial statements.
Patriot’s primary sources of cash include sales of its coal
production to customers, sales of non-core assets and financing
transactions. Its primary uses of cash include its cash costs of
coal production, capital expenditures, interest costs and costs
related to past mining obligations as well as acquisitions.
Patriot’s ability to service its debt (interest and
principal) and acquire new productive assets or businesses is
dependent upon its ability to continue to generate cash from the
primary sources noted above in excess of the primary uses.
Patriot expects to fund its capital expenditure requirements
with cash generated from operations or borrowed funds as
necessary.
Net cash used in operating activities was $4.8 million for
the three months ended March 31, 2008 compared to
$24.1 million in the same period of 2007. The decrease in
use of cash primarily related to improved operating results
partially offset by working capital changes. Net cash used in
operating activities was $79.7 million for the year ended
December 31, 2007, an increase of $59.0 million
compared to the prior year. This increase in net cash used
primarily related to cash operating losses and working capital
changes. On a pro forma basis, Patriot’s 2007 cash flows
from operating activities would have been approximately
$72 million higher due to Peabody’s assumption of
certain retiree healthcare liabilities and higher revenues due
to Peabody’s agreement to increase the price paid to
Patriot under a major existing coal sales agreement to be more
reflective of the then current market pricing for similar
quality coal.
Net cash used in investing activities was $13.3 million for
the three months ended March 31, 2008 compared to net cash
provided by investing activities of $37.7 million in the
same period of 2007. The decrease in cash provided reflected a
decrease in net transactions with Peabody of $40.4 million and a
decrease in the proceeds from disposal of assets of
$14.1 million, partially offset by lower capital
expenditures of $4.3 million. Net cash provided by
investing activities was $54.7 million for the year ended
December 31, 2007, an increase of $52.7 million
compared to the prior year. The increase in cash provided
reflected lower capital expenditures of $24.6 million, and
an increase to net transactions with Peabody of
$47.9 million, partially offset by lower cash proceeds from
disposals of assets of $18.7 million. Additionally, the
$47.7 million cost to acquire the remaining 26.1% ownership
in KE Ventures, LLC was slightly higher than the
$44.5 million used to purchase a 24.9% interest in 2006.
Net cash provided by financing activities was $21.6 million
for the three months ended March 31, 2008 due to short-term
borrowings of $22.5 million partially offset by a
promissory note payment of $0.9 million in 2008. Net cash
provided by financing activities was $30.6 million for the
year ended December 31, 2007, an increase of
$11.9 million compared to the prior year. In 2007, Patriot
repaid $8.4 million of KE Ventures, LLC debt in conjunction
with the acquisition of the remaining ownership described above.
Also in 2007, Patriot paid $4.7 million in origination fees
for its credit facility, which will be amortized over the term
of the facility. In 2006, Patriot repaid KE Ventures, LLC’s
outstanding bank debt of $23.8 million.
Promissory
Notes
Patriot’s total historical indebtedness consisted of the
following:
The promissory notes were issued in conjunction with an exchange
transaction involving the acquisition of Illinois Basin coal
reserves. Annual installments of $1.7 million on the notes
for principal and interest are payable beginning in January 2008
and running through January 2017. At December 31, 2007, the
balance on the notes was $12.4 million, $0.9 million
of which was a current liability.
Effective October 31, 2007, Patriot entered into a
$500 million, four-year revolving credit facility, which
includes a $50 million swingline sub-facility and a letter
of credit sub-facility. This facility is available for
Patriot’s working capital requirements, capital
expenditures and other corporate purposes. Patriot’s credit
facility was utilized to replace certain Peabody letters of
credit and surety bonds that were in place with respect to
Patriot obligations. Patriot issued $253.5 million in
letters of credit against the credit facility in connection with
the spin-off. As of March 31, 2008 the balance of
outstanding letters of credit issued against the credit facility
totaled $299.8 million. At March 31, 2008, there was
$22.5 million of outstanding
short-term
borrowings on the facility. Availability under the credit
facility as of March 31, 2008 was $177.7 million.
The obligations under Patriot’s credit facility are secured
by a first lien on substantially all of its assets, including
but not limited to certain of its mines and coal reserves and
related fixtures and accounts receivable. The credit facility
contains certain customary covenants, including financial
covenants limiting its total indebtedness (maximum leverage
ratio of 2.75) and requiring minimum EBITDA coverage of interest
expense (minimum interest coverage ratio of 4.0), as well as
certain limitations on, among other things, additional debt,
liens, investments, acquisitions and capital expenditures,
future dividends and asset sales. The credit facility calls for
quarterly reporting of compliance with financial covenants,
beginning with the period ended March 31, 2008. The rolling
four quarters compliance calculation contains a phase-in
provision for 2008. The terms of the credit facility also
contain certain customary events of default, which will give the
lender the right to accelerate payments of outstanding debt in
certain circumstances. Customary events of default include
breach of covenants, failure to maintain required ratios,
failure to make principal payments or to make interest or fee
payments within a grace period, and default, beyond any
applicable grace period, on any of Patriot’s other
indebtedness exceeding a certain amount.
In connection with Patriot’s entry into the merger
agreement, Patriot entered into an amendment dated as of
April 2, 2008 to the Patriot Credit Agreement. In
connection with Patriot’s offering of the Patriot
convertible notes, Patriot entered into an amendment dated as of
May 19, 2008 to the Patriot Credit Agreement. See
“The Merger — Financing
Arrangements — Patriot Credit Agreement
Amendments.”
Private
Convertible Debt Offering
On May 28, 2008, Patriot completed a private offering of
$200 million in aggregate principal amount of
3.25% Convertible Senior Notes due 2013, which we refer to
as the Patriot convertible notes. The Patriot convertible notes
will be convertible into cash and, if applicable, shares of
Patriot’s common stock. The initial conversion rate for the
Patriot convertible notes will be 7.3889 shares of
Patriot’s common stock per $1,000 principal amount of
Patriot convertible notes, which is equivalent to an initial
conversion price of approximately $135.34 per share of common
stock and represents a 40% conversion premium over the last
reported sale price of Patriot’s common stock on
May 21, 2008, which was $96.67 per share. The conversion
rate and the conversion price will be subject to adjustment in
certain events, such as distributions of dividends or stock
splits. The Patriot convertible notes and any shares of common
stock issuable on conversion of the Patriot convertible notes
have not been registered under the Securities Act or any state
securities laws and were only offered to qualified institutional
buyers pursuant to Rule 144A promulgated under the
Securities Act.
Interest on the Patriot convertible notes will be payable
semi-annually in arrears on May 31 and November 30 of each year,
beginning November 30, 2008. The Patriot convertible notes
will mature on May 31, 2013, unless converted, repurchased
or redeemed in accordance with their terms prior to such date.
The Patriot convertible notes will be senior unsecured
obligations and will rank equally with all of the company’s
existing and future senior debt and senior to any of
Patriot’s subordinated debt. Patriot intends to use the
proceeds of the offering to repay existing indebtedness under
Magnum’s credit facilities and the remainder, if any, for
general corporate purposes.
The net proceeds of the offering were approximately
$192.8 million after deducting the initial purchasers’
discounts or commissions and estimated fees and expenses of the
offering payable by Patriot. The proceeds
were deposited into a separate deposit account and will be
released upon the occurrence of certain events. The deposit
account is not property of Patriot which is subject to the first
lien securing Patriot’s obligations under the credit
facility. If the merger is not consummated, Patriot intends to
redeem the Patriot convertible notes as required under the terms
of the credit facility on or before December 31, 2008.
Holders of Patriot convertible notes may convert their notes
prior to the close of business on the business day immediately
preceding February 15, 2013, only under the following
circumstances: (1) during the five trading day period after
any ten consecutive trading day period (the “measurement
period”) in which the trading price per note for each
trading day of that measurement period was less than 97% of the
product of the last reported sale price of Patriot’s common
stock and the conversion rate on each such trading day;
(2) during any calendar quarter after the calendar quarter
ending September 30, 2008, and only during such calendar
quarter, if the last reported sale price of Patriot’s
common stock for 20 or more trading days in a period of 30
consecutive trading days ending on the last trading day of the
immediately preceding calendar quarter exceeds 130% of the
conversion price in effect on each such trading day; (3) if
the notes have been called for redemption (other than in
connection with the termination of the merger agreement); or
(4) upon the occurrence of specified corporate events. The
notes will be convertible, regardless of the foregoing
circumstances, at any time from, and including,
February 15, 2013 until the close of business on the
business day immediately preceding the maturity date.
Upon conversion, Patriot will pay cash and, if applicable,
shares of Patriot’s common stock based on a “daily
conversion value” as defined in the indenture for the
Patriot convertible notes for each VWAP trading day (as defined
in the indenture for the Patriot convertible notes) of the
relevant 20 VWAP trading day observation period. The conversion
rate will be subject to adjustment in some events, but will not
be adjusted for accrued interest. In addition, if a
“make-whole fundamental change” defined in the
indenture for the Patriot convertible notes occurs prior to the
maturity date of the notes, Patriot will in some cases increase
the conversion rate for a holder that elects to convert its
notes in connection with such make-whole fundamental change.
Holders of Patriot convertible notes may require Patriot to
repurchase for cash all or part of their notes upon a
“fundamental change” as defined in the indenture for
the Patriot convertible notes at a repurchase price equal to
100% of the principal amount of the notes being repurchased,
plus any accrued and unpaid interest up to, but excluding, the
relevant repurchase date. If the merger agreement with Magnum is
terminated, Patriot may redeem the notes, in whole or in part,
at any time on or before December 31, 2008. The redemption
price will be (i) an amount in cash equal to the principal
amount of notes to be redeemed, plus any accrued and unpaid
interest thereon to, but excluding, the redemption date and
(ii) an amount in shares of Patriot’s common stock
based upon (a) 2% of the principal amount of notes to be
redeemed plus (b) 80% of the amount, if any, by which the
“redemption conversion value” of such notes exceeds
their “initial conversion value,” each as defined in
the indenture for the Patriot convertible notes. Under the terms
of Patriot’s credit facility as currently in effect,
Patriot is required to redeem the notes before December 31,2008 (or such later date agreed to by the majority lenders under
the credit facility) if the merger agreement is terminated.
In addition, Patriot may redeem (i) some or all of the
notes at any time on or after May 31, 2011, but only if the
last reported sale price of Patriot’s common stock for 20
or more trading days in a period of 30 consecutive trading days
ending on the trading day prior to the date Patriot provides the
relevant notice of redemption exceeds 130% of the conversion
price in effect on each such trading day, or (ii) all the
notes if at any time less than $20 million in aggregate
principal amount of notes remain outstanding. In both cases,
notes will be redeemed for cash at a redemption price equal to
100% of the principal amount of the notes to be redeemed, plus
any accrued and unpaid interest up to, but excluding, the
relevant redemption date.
The Patriot convertible notes are convertible at the option of
the holders (subject to certain conditions to conversion during
the period from May 28, 2008 to February 15,2013) into a combination of cash and shares of
Patriot’s common stock, unless Patriot elects to deliver
cash in lieu of the common stock portion. The number of shares
of Patriot’s common stock that it may deliver on conversion
will depend upon the price of its common stock during a
20-day
observation period related to the convertible notes, but will
increase as the common stock price increases above the
conversion price of $135.34 per share of common stock for each
day during the observation period. For example, if the stock
price is $200.00 for each day during the observation
period, the number of shares deliverable would be
477,782 shares. However, the maximum number of shares that
Patriot may deliver is 1,477,780 shares, which represents
approximately 3.8% of the sum of (x) the number of
outstanding shares of Patriot common stock as of May 19,2008, being 26,755,877 shares and (y) the number of
shares of Patriot common stock to be issued in the merger. The
number of shares of Patriot’s common stock deliverable on
conversion, however, is subject to adjustments for events having
a dilutive effect on the value of Patriot common stock, which
may increase the number of shares issuable upon conversion,
including such maximum amount. In addition, if certain
fundamental changes occur in respect of Patriot, the number of
shares of Patriot common stock deliverable on conversion will
increase up to a maximum amount of 2,068,894 shares (also
subject to adjustment for certain dilutive events).
Other
Patriot does not anticipate that it will pay cash dividends on
its common stock in the near term. The declaration and amount of
future dividends, if any, will be determined by its Board of
Directors and will be dependent upon covenant limitations in its
credit facility and other debt agreements, its financial
condition and future earnings, its capital, legal and regulatory
requirements, and other factors its Board deems relevant.
Long-term debt obligations (principal and interest)
$
1,700
$
3,400
$
3,400
$
8,500
Operating lease obligations
24,117
41,958
22,349
6,500
Unconditional purchase obligations(1)
6,306
—
—
—
Coal reserve lease and royalty obligations
12,059
17,513
9,380
6,676
Other long-term liabilities(2)
50,618
111,686
128,374
614,942
Total contractual cash obligations
$
94,800
$
174,557
$
163,503
$
636,618
(1)
Patriot has purchase agreements with approved vendors for most
types of operating expenses. However, its specific open purchase
orders (which have not been recognized as a liability) under
these purchase agreements, combined with any other open purchase
orders, are not material. The commitments in the table above
relate to significant capital purchases.
(2)
Represents long-term liabilities relating to Patriot’s
postretirement benefit plans, work-related injuries and
illnesses and mine reclamation and end-of-mine closure costs.
As of March 31, 2008, Patriot had $42.7 million of
purchase obligations for capital expenditures. Total capital
expenditures for 2008 are expected to range from
$65 million to $80 million and relate to replacement,
improvement, or expansion of existing mines as well as the
development of the Black Oak metallurgical mine at the Rocklick
Complex. Approximately $18 million of the expenditures
relate to safety equipment that will be utilized to comply with
recently issued federal and state regulations.
Off-Balance
Sheet Arrangements
In the normal course of business, Patriot is a party to certain
off-balance sheet arrangements. These arrangements include
guarantees, indemnifications, and financial instruments with
off-balance sheet risk, such as bank letters of credit and
performance or surety bonds. Liabilities related to these
arrangements are not reflected in Patriot’s consolidated
balance sheets, and Patriot does not expect any material adverse
effect on its financial condition, results of operations or cash
flows to result from these off-balance sheet arrangements.
Patriot has used a combination of surety bonds and letters of
credit to secure its financial obligations for reclamation,
workers’ compensation, postretirement benefits and lease
obligations as follows as of December 31, 2007:
Workers’
Reclamation
Lease
Compensation
Obligations
Obligations
Obligations
Other(1)
Total
(Dollars in thousands)
Surety bonds
$
84,109
$
—
$
12,961
$
12,030
$
109,100
Letters of credit
61,883
16,949
170,844
3,871
253,547
$
145,992
$
16,949
$
183,805
$
15,901
$
362,647
(1)
Includes collateral for surety companies and bank guarantees,
road maintenance and performance guarantees.
Additionally, as of December 31, 2007, Peabody continued to
guarantee certain bonds (self bonding) related to Patriot
liabilities that have not yet been replaced by its surety bonds.
As of December 31, 2007, Peabody self bonding related to
Patriot liabilities aggregated $22.8 million, of which
$19.9 million was for post-mining reclamation and
$2.9 million was for other obligations. Patriot expects to
replace these Peabody self bonds in 2008.
Based on its estimate of the replacement of Peabody self bonds
and an overall increase to Patriot’s fee structure as
compared to Peabody for these security instruments, Patriot
expects that annual costs for its security requirements will be
higher than the amounts included in its historical financial
statements. We are initially estimating an increase in annual
costs of approximately $6 million over the amounts in
Patriot’s historical financial statements.
In relation to an exchange transaction involving the acquisition
of the Illinois Basin coal reserves discussed in Note 4 to
its consolidated financial statements, Patriot guaranteed
bonding for a partnership in which it formerly held an interest.
The aggregate amount that Patriot guaranteed was
$2.8 million and the fair value of the guarantee recognized
as a liability was $0.4 million as of December 31,2007. Patriot’s obligation under the guarantee extends to
September 2015.
Peabody assumed certain of Patriot’s retiree healthcare
liabilities in the aggregate amount of $603.4 million as of
December 31, 2007. These liabilities included certain
obligations under the Coal Act for which Peabody and Patriot are
jointly and severally liable, obligations under the 2007
National Bituminous Coal Wage Agreement for which Patriot is
secondarily liable, and obligations for certain active, vested
employees of Patriot.
Newly
Adopted Accounting Pronouncements
FASB
Statement No. 157
In September 2006, the FASB issued Statement No. 157,
“Fair Value Measurements.” SFAS No 157 defines
fair value, establishes a framework for measuring fair value
under generally accepted accounting principles, and expands
disclosures about fair value measures. SFAS No. 157
clarifies that fair value is a market-based measurement that
should be determined based on the assumptions that market
participants would use in pricing an asset or liability.
SFAS No. 157 is effective for fiscal years beginning
after November 15, 2007. The provisions of
SFAS No. 157 are to be applied on a prospective basis,
with the exception of certain financial instruments for which
retrospective application is required. Patriot adopted
SFAS No. 157 in the first quarter of 2008 with no
impact to the financial statements.
FASB
Statement No. 159
In February 2007, the FASB issued Statement No. 159,
“The Fair Value Option for Financial Assets and Financial
Liabilities.” SFAS No. 159 permits entities to
choose to measure many financial instruments and certain other
items at fair value that are not currently required to be
measured at fair value. Entities electing
the fair value option will be required to recognize changes in
fair value in earnings and to expense upfront costs and fees
associated with each item for which the fair value option is
elected. SFAS No. 159 is effective for fiscal years
beginning after November 15, 2007. Patriot adopted SFAS
No. 159 in the first quarter of 2008 with no impact to the
financial statements since Patriot has not elected fair value
treatment for any items not currently required to be measured at
fair value.
Financial
Interpretation No. 48
In June 2006, the FASB issued Interpretation No. 48,
“Accounting for Uncertainty in Income Taxes — an
interpretation of FASB Statement No. 109”
(FIN No. 48). This interpretation prescribes a
recognition threshold and measurement attribute for the
financial statement recognition and measurement of a tax
position taken or expected to be taken in a tax return.
FIN No. 48 also provides guidance on derecognition,
classification, interest and penalties, accounting in interim
periods, disclosure and transition.
Patriot adopted the provisions of FIN No. 48 on
January 1, 2007, with no impact on retained earnings. At
adoption and at December 31, 2007, the unrecognized tax
benefits in Patriot’s consolidated financial statements
were immaterial, and if recognized, would not currently affect
Patriot’s effective tax rate as any recognition would be
offset by valuation allowance. Patriot does not expect any
significant increases or decreases to its unrecognized tax
benefits within 12 months of December 31, 2007.
Due to the immaterial nature of its unrecognized tax benefits
and the existence of net operating loss carryforwards, Patriot
has not currently accrued interest on any of its unrecognized
tax benefits. Patriot has considered the application of
penalties on its unrecognized tax benefits and have determined,
based on several factors, including the existence of its net
operating loss carryforwards, that no accrual of penalties
related to its unrecognized tax benefits is required. If the
accrual of interest or penalties becomes appropriate, Patriot
will record an accrual as part of its income tax provision.
As Patriot has not yet filed any income tax returns as a stand
alone consolidated group, it has no income tax years currently
subject to audit by any tax jurisdiction. Patriot and its
subsidiaries were included in consolidated Peabody income tax
returns prior to November 1, 2007 and Peabody retained all
liability related to these returns.
Changes
in and Disagreements with Accountants on Accounting and
Financial Disclosure.
None.
Patriot’s
Quantitative and Qualitative Disclosures About Market
Risk.
Commodity
Price Risk
The potential for changes in the market value of Patriot’s
coal portfolio is referred to as “market risk.” Owing
to lack of quoted market prices and the long term, illiquid
nature of the positions, Patriot has not quantified market risk
related to its portfolio of coal supply agreements. Patriot
manages its commodity price risk for its coal contracts through
the use of long-term coal supply agreements, rather than through
the use of derivative instruments. Patriot sold 83% of its sales
volume under coal supply agreements with terms of one year or
more during 2007. As of March 31, 2008, Patriot’s
total unpriced planned production for 2008 was less than
1.0 million tons, for 2009 was 9.0 to 11.0 million
tons and for 2010 was 16.5 to 18.5 million tons.
In connection with the spin-off, Patriot entered into long-term
coal contracts with marketing affiliates of Peabody. The
arrangements, except as described below under “Credit
Risk”, have substantially similar terms and conditions as
the pre-existing contractual obligations of Peabody’s
marketing affiliate. These arrangements may be amended or
terminated only with the mutual agreement of Peabody and Patriot.
Credit
Risk
A major portion of Patriot’s revenues is generated through
sales to a marketing affiliate of Peabody, and Patriot will
continue to supply coal to Peabody on a contract basis as
described above, so Peabody can meet
its commitments under pre-existing customer agreements sourced
from Patriot’s operations. One of these arrangements with
Peabody provides for the adjustment of a major existing coal
sales agreement sourced from Patriot’s operations to
increase the price paid to Patriot thereunder. The term of the
arrangement between Patriot and Peabody will expire on
December 31, 2012, and could be subject to extension in
certain circumstances. Patriot’s remaining sales are made
directly to electric utilities, industrial companies and
steelmakers. Therefore, Patriot’s concentration of credit
risk is primarily with Peabody, as well as electric utilities
and steelmakers. Patriot’s policy is to independently
evaluate each customer’s creditworthiness prior to entering
into transactions and to constantly monitor the credit extended.
In the event that Patriot engages in a transaction with a
counterparty that does not meet its credit standards, it will
protect its position by requiring the counterparty to provide
appropriate credit enhancement. When appropriate (as determined
by its credit management function), Patriot has taken steps to
reduce its credit exposure to customers or counterparties whose
credit has deteriorated and who may pose a higher risk of
failure to perform under their contractual obligations. These
steps include obtaining letters of credit or cash collateral,
requiring prepayments for shipments or the creation of customer
trust accounts held for Patriot’s benefit to serve as
collateral in the event of a failure to pay. Additionally, as of
March 31, 2008, Patriot had $136.2 million in notes
receivable outstanding from counterparties not affiliated with
Patriot or Peabody arising out of the sale of coal reserves and
surface land discussed above. Of this amount, 95% is from a
single counterparty. Each of these notes contains a
cross-collaterization provision secured primarily by the
underlying coal reserves and surface land.
Quarterly
Financial Information (Unaudited)
A summary of Patriot’s unaudited quarterly results of
operations for the years ended December 31, 2007 and 2006,
is presented below (in thousands). Patriot common stock is
listed on the New York Stock Exchange under the symbol
“PCX.”
The following is a discussion of the executive compensation
programs adopted by Patriot in connection with Patriot’s
spin-off from Peabody on October 31, 2007.
•
Prior to the spin-off, Patriot’s executive compensation
plans and agreements were reviewed and approved by
Peabody’s Compensation Committee and the independent
members of Peabody’s Board of Directors. At that time
Peabody was Patriot’s sole stockholder.
•
Following the spin-off, Patriot’s Compensation Committee
assumed responsibility for Patriot’s executive compensation
plans.
Executive
Compensation Program Objectives
The objectives of Patriot’s executive compensation program
are to attract, retain and motivate key executives to enhance
long-term profitability and stockholder value. Compensation
programs are designed to align incentives for executives with
achievement of Patriot’s business strategies, including:
•
Maximizing operational excellence in the areas of safety,
productivity and cost management and environmental stewardship;
•
Capitalizing on organic growth opportunities as well as
value-enhancing acquisitions and joint ventures; and
•
Maximizing profitability and customer satisfaction by taking
advantage of Patriot’s diverse products and sourcing
capabilities.
In order to meet Patriot’s objectives, its executive
compensation program is designed to:
•
Provide competitive compensation based on the position and
responsibility by using market data to successfully attract and
retain highly-qualified executives with the leadership skills
and experience necessary for Patriot’s long-term success;
•
Provide incentive compensation that places a strong emphasis on
financial performance, with the flexibility to assess
operational and individual performance; and
•
Provide an appropriate link between compensation and the
creation of stockholder value through awards tied to
Patriot’s long-term performance and share price
appreciation.
With these objectives in mind, Peabody’s Compensation
Committee approved a compensation structure for executive
officers that incorporates four key components: base salary; an
annual incentive plan; long-term incentive compensation
consisting of restricted stock, stock options and restricted
stock units; and retirement and other benefits.
Roles of
the Compensation Committee & the Compensation
Consultant
In anticipation of the spin-off, Peabody’s Compensation
Committee engaged Mercer Human Resource Consulting
(“Mercer”), an outside compensation consultant,
to provide guidance with respect to the development and
implementation of Patriot’s compensation programs. In its
engagement, Mercer provided Peabody’s Compensation
Committee with advice concerning the types and levels of
compensation to be paid to the Chief Executive Officer and the
other senior executives. Mercer assisted by providing market
compensation data on base pay, as well as annual and long-term
incentives. In addition, Mercer advised Peabody’s
Compensation Committee on plan design for each element of
executive compensation, including helping to identify: the
appropriate mix of base salary and annual and long-term
incentive compensation; the appropriate mix of long-term
incentive compensation to be granted as restricted stock, stock
options and restricted stock units; and the relevant industry
comparator group. Since the spin-off, these matters fall within
the responsibility of Patriot’s Compensation Committee, as
described below. Under its charter, Patriot’s Compensation
Committee has authority to engage the services of outside
advisors, experts and others to assist the Compensation
Committee in fulfilling these duties.
The Compensation Committee is comprised entirely of independent
directors and has the ultimate responsibility for review and
approval of the compensation of Patriot’s executive
officers, excluding the Chief Executive Officer. The Committee
has overall responsibility for monitoring the performance of
Patriot’s executives and evaluating and approving
Patriot’s executive compensation plans, policies and
programs. The Committee also reviews and approves executive
participation in any company-wide benefit plans. In addition,
the Committee oversees Patriot’s annual and long-term
incentive plans and programs.
With respect to the Chief Executive Officer, the Compensation
Committee together with the other independent members of the
Board of Directors, reviews and approves the Chief Executive
Officer’s compensation, including base salary, annual
incentive and long-term incentive compensation, deferred
compensation, perquisites, equity compensation, employment
agreements, severance arrangements, retirement and other
post-employment benefits and
change-in-control
benefits (in each case, as and when appropriate). In addition,
the Compensation Committee and the other independent members of
the Board of Directors review and approve corporate goals and
objectives relevant to such compensation and evaluate the Chief
Executive Officer’s performance in light of those goals and
objectives.
Benchmarking
Process
In developing Patriot’s executive compensation programs in
connection with the spin-off, Peabody’s Compensation
Committee commissioned a compensation analysis conducted by its
independent compensation consultant to ensure that
Patriot’s programs are competitive with those of other
publicly held companies of similar size and in similar
industries. For positions that require specific industry
knowledge and experience, Peabody’s Compensation Committee
used both a mining comparator group and Mercer’s general
industry database for benchmarking purposes. This approach was
designed to ensure that Patriot’s executive compensation
levels are competitive relative to the companies with which
Patriot competes for industry-specific talent. The mining
comparator group is composed of Peabody, CONSOL Energy, Inc.,
Arch Coal, Massey Energy Company, Alpha Natural Resources, Inc.,
Foundation Coal Holdings, Inc., International Coal Group, Inc.,
James River Coal Company, and Westmoreland Coal Company. Talent
for other key roles in the organization can be acquired across a
broader spectrum of companies. As such, Mercer also utilized
published compensation surveys from companies based on similar
size and scope.
For purposes of reviewing the competitiveness of Patriot’s
executive compensation program, Mercer used a combination of
proxy data from the above peers and survey data to benchmark
compensation for executive officers. Mercer utilized two
published surveys which included the 2006 Mercer Benchmark
Database and the 2006/2007 Watson Wyatt Survey on Top Management
Compensation. The data from the published surveys was updated by
3.9%, the expected pay increase in 2007 for executives in the
energy industry based on the Mercer 2006/2007
U.S. Compensation Planning Survey anticipating that the
spin-off would occur in 2007.
The survey data consisted of general industry references for
companies of comparable expected revenue size to Patriot and
were averaged with the available proxy data to provide an
overall market composite. Base salaries were determined by
reference to both peer survey data and annual incentive
opportunities by reference to broad industry survey data, and
the resulting Patriot total cash opportunities were compared to
the market total cash opportunities. For purposes of determining
an executive’s total direct compensation (i.e. base salary,
annual bonus and annual long-term incentive), the Compensation
Committee generally targeted the 50th percentile and then
adjusted the executive’s targeted compensation levels for
factors such as experience, retention and responsibility.
With respect to the long-term incentive awards granted in
connection with the spin-off, Peabody’s Compensation
Committee also reviewed data, provided by Mercer, regarding
types and levels of initial grants of long-term incentive awards
provided to executives who lead companies through initial public
offerings, spin-offs and similar transactions.
Overall, Mercer determined that Patriot’s executive
compensation programs, as structured, are competitive relative
to its peers and other companies who have engaged in similar
transactions. Based upon the review of the compensation plans
discussed below, peer group compensation levels, and general
industry compensation levels, Peabody’s Compensation
Committee, assisted by its outside consultant, believed that the
value and design of Patriot’s executive compensation
programs were appropriate for a spun-off company of its size,
structure and business.
Employment
Agreements
In connection with the spin-off and in consultation with Mercer,
Patriot entered into employment agreements with each of
Patriot’s named executive officers and with certain other
key executives. The terms of those agreements, including the
provision of post-termination benefits, as described in detail
in the “Potential Payments Upon Termination or Change of
Control” section, were structured to attract and retain
persons believed to be key to Patriot’s success as well as
be competitive with compensation practices for executives in
similar positions at companies of similar size and complexity.
In assessing whether the terms of the employment agreements were
competitive, Peabody’s Compensation Committee received
advice from its compensation consultant and reviewed salary
surveys and industry benchmarking data, as discussed above. For
more information regarding the terms of these agreements, see
the “Potential Termination Upon Termination or Change of
Control” section.
Annual
Base Salary
Base salary represents the major fixed component of compensation
for the named executive officers. Peabody’s Compensation
Committee reviewed the base salaries of the Chief Executive
Officer and the executives who report directly to the Chief
Executive Officer to ensure competitiveness in the marketplace.
Mr. Whiting’s employment agreement sets his base
salary at $700,000.
Base salaries for the other named executive officers were
determined based on a review for officers in their positions at
peer companies and by reference to broad industry survey data
discussed in the “Benchmarking Process” section and
the individual executive’s experience. Pursuant to the
terms of their respective employment agreements entered into at
the time of the spin-off, base salaries are as follows:
Mr. Nemec, $375,000, Mr. Schroeder, $375,000,
Mr. Ebetino, $375,000, and Mr. Bean, $275,000.
Patriot’s Compensation Committee will continue to review
the base salaries of the named executive officers at least
annually to ensure that their salaries are competitive with
companies of similar size and complexity. Any further salary
increases may also be based on factors such as assessment of
individual performance, experience, promotions and changes in
level of responsibility.
Annual
Incentive Plan
Patriot’s executive officers and other designated key
employees participate in an annual incentive compensation plan,
which was approved by Peabody, in its capacity as Patriot’s
sole stockholder, prior to the spin-off. In general,
Patriot’s annual incentive plan provides opportunities for
key executives to earn annual cash incentive payments tied to
the successful achievement of pre-established objectives that
support Patriot’s business strategy.
Named executive officers are assigned threshold, target and
maximum incentive payouts. If Patriot’s performance does
not meet the threshold level established by the Compensation
Committee, no incentive bonus is earned. At threshold levels of
Patriot performance, the incentive bonus that can be earned
generally equals 50% of the target payout. Under the plan, the
target payouts for the named executive officers were established
through an analysis of compensation for comparable positions in
industries of similar size and complexity, in order to provide a
competitive level of compensation when participants, including
the named executive officers, achieve their performance
objectives with respect to Patriot performance.
Pursuant to the terms of their respective employment agreements,
the named executive officer’s threshold, target and maximum
incentive payouts, as a percent of their salaries, based on
achievement of relevant Patriot performance objectives, are as
follows:
Threshold
Target
Maximum
Payout
Payout
Payout
as a % of
as a % of
as a % of
Name
Salary
Salary
Salary
Richard M. Whiting
50
%
100
%
175
%
Jiri Nemec
40
%
80
%
140
%
Mark N. Schroeder
40
%
80
%
140
%
Charles A. Ebetino, Jr.
40
%
80
%
140
%
Joseph W. Bean
30
%
60
%
105
%
2007
Annual Incentive Payouts
Prior to the spin-off, Peabody’s Compensation Committee
approved an incentive plan design for Patriot’s named
executive officers with respect to the 2007 fiscal year with the
following terms: 60% of the annual bonus would be
nondiscretionary and based on Peabody’s performance in
accordance with the terms of Peabody’s annual incentive
plan, and 40% of the annual bonus would be discretionary based
on successful achievement of individual performance objectives
including, but not limited to, the successful completion of the
spin-off of Patriot and its transition to a stand alone company.
In 2007, the Chief Executive Officer, the Chief Financial
Officer and the other named executive officers earned annual
incentive payouts, as reflected in the Non-Equity Incentive Plan
Compensation column of the Summary Compensation Table on
page 168 of this proxy statement/prospectus.
For 2007, the nondiscretionary performance measures (60% of the
award) included (i) goals for Peabody’s Adjusted
EBITDA (ii) Peabody’s earnings per share,
(iii) Peabody’s leverage ratio and (iv) a measure
for safety. Those results were certified by Peabody’s
Compensation Committee and provided to Patriot and corresponding
bonus amounts were paid by Patriot for the period
November 1, 2007 to December 31, 2007. Factors
considered in determining the amount of the discretionary
portion of the award (40% of the award) to each named executive
officer related primarily to the spin-off and included
(i) maintenance of normal course of business with regard to
safety and productivity at coal mining operations,
(ii) effective communication and transition activities with
customers, vendors, regulators, lenders and other stakeholders,
(iii) securing appropriate levels of staffing for the new
organization and successful relocation to the new corporate
headquarters and (iv) maintaining effective communications
and relations with employees throughout the transition.
Performance against these discretionary goals was assessed by
Patriot’s Compensation Committee in January 2008. In
determining the discretionary portion of the award for 2007,
Patriot’s Chief Executive Officer made recommendations to
the Compensation Committee for the other named executive
officers, but final determinations were made by the Compensation
Committee in its discretion. Patriot’s Compensation
Committee, together with the other independent members of the
Board of Directors, determined and approved the discretionary
portion of the Chief Executive Officer’s 2007 incentive
award for the two months ended December 31, 2007.
Long-Term
Incentives
Prior to the spin-off, Peabody, as Patriot’s sole
stockholder, approved and Patriot’s Board of Directors
adopted, Patriot’s long-term incentive plan. The long-term
incentive plan provides opportunities for key executives to earn
payments based upon successful achievement of pre-established
long-term (greater than one year) objectives, increase in
Patriot’s stock price and service with Patriot. The
one-time long-term incentive awards awarded in connection with
the spin-off have terms specifically aimed at long-term
retention, in addition to achievement of certain financial
objectives discussed on page 163 of this proxy
statement/prospectus. Other than on death, disability or a
change of control of Patriot, the time-based equity components
of the one-time long-term incentive awards granted in connection
with the spin-off will not vest prior to the fifth-year
anniversary of their date of grant. In addition, the
performance-based component of the one-time
long-term incentive awards only vest if performance metrics are
achieved and are otherwise forfeited, including for terminations
of employment as a result of death, disability or a change of
control. These vesting schedules are not commonplace and were
designed to reinforce the commitment of the named executive
officers to Patriot as a stand-alone public company.
One-Time
Long-Term Incentive Awards
Upon consummation of the spin-off, a long-term incentive
opportunity was granted to each of the named executive officers
through a one-time award of stock options and restricted stock
units. The targeted value of these awards was split evenly
between stock options and restricted stock units.
The purpose of the initial long-term incentive grants is to:
•
Build commitment to Patriot and promote retention during the
transition period following the spin-off;
•
Align executive and stockholder interests;
•
Make a substantial portion of each named executive
officer’s compensation directly contingent on future stock
price appreciation; and
•
Complement the other components of Patriot’s compensation
program and provide competitive total compensation opportunities.
Stock
Options
Initial awards were made as of November 1, 2007 in the form
of nonqualified stock options. The stock options were granted at
an exercise price equal to the closing market price of
Patriot’s common stock as reported on the New York Stock
Exchange on the date of grant. Accordingly, those stock options
will have intrinsic value to employees only if the market price
of Patriot’s common stock increases after that date.
Patriot uses a Black-Scholes valuation model to establish the
expected value of all stock option grants.
The initial grant of stock options vest 50% on the fifth
anniversary of the grant date, 25% on the sixth anniversary of
the grant date and 25% on the seventh anniversary of the grant
date. The options will immediately vest upon a change of control
of Patriot or upon the holder’s death or disability. If the
holder’s employment terminates for reasons other than death
or disability, all unvested stock options will be forfeited.
Stock options will expire ten years from the date of grant or
following specified periods upon termination of employment, if
earlier.
Restricted
Stock Units
In connection with the spin-off, initial awards of time-vested
restricted stock units were granted, on November 1, 2007,
each representing one share of Patriot common stock. If certain
super-performance metrics (described below) are met, additional
restricted stock units may be earned. The award will time vest
as follows and will be payable in shares of Patriot’s
common stock: 50% on the fifth anniversary of the grant date,
25% on the sixth anniversary of the grant date and 25% on the
seventh anniversary of the grant date. Any additional restricted
stock units will be payable subject to the achievement of
performance goals at the conclusion of the vesting periods ended
December 31, 2012, December 31, 2013 and
December 31, 2014. Upon a change of control of Patriot or
the holder’s death, or disability, the vesting of the
time-vested restricted stock units will accelerate. If the
holder’s employment terminates for any other reason, all
unvested restricted stock units will be forfeited. The
restricted stock units subject to the super-performance
conditions do not accelerate vest for any reason, including
change of control, or the holder’s death or disability.
If the following performance metrics are met on each of the
vesting dates, additional restricted stock units may be earned
as follows:
•
Fifth anniversary of the grant date: 50% of
the initial award time vests with an opportunity to earn up to
1.5 x 50% of the initial award if the super-performance metrics
are achieved;
Sixth anniversary of the grant date: 25% of
the initial award time vests with an opportunity to earn up to
3.0 x 25% of the initial award if the super-performance metrics
are achieved; and
•
Seventh anniversary of the grant date: 25% of
the initial award time vests with an opportunity to earn up to
4.0 x 25% of the initial award if the super-performance metrics
are achieved.
The super-performance metrics are designed to balance
Patriot’s growth goals with financial stability and capital
efficiency. The metrics used to measure these objectives are:
Adjusted EBITDA, Return on Invested Capital and a Leverage
ratio. Each is equally weighted in determining payouts, if any.
The percentage of achievement as of the vesting dates for each
year is determined as follows and is based on the targets
outlined in the chart below:
•
The percentage of the Adjusted EBITDA goal achieved multiplied
by 1/3, plus
•
The percentage of the ROIC goal achieved multiplied by 1/3, plus
•
The percentage of the Leverage goal achieved, multiplied by 1/3.
One-Time
Long-Term Incentive Award
Super-Performance
Grid
Achievement
December 31,
December 31,
December 31,
%
2012
2013
2014
($ in millions)
Cumulative Adjusted EBITDA Goal
(1/3 weight)
25
%
$
798.5
$
1,028.5
$
1,281.5
62.5
%
$
871.1
$
1,122.0
$
1,398.0
100
%
$
943.6
$
1,215.5
$
1,514.5
ROIC Goal (1/3 weight)
25
%
12
%
12
%
12
%
62.5
%
14
%
14
%
14
%
100
%
16
%
16
%
16
%
Leverage Goal (1/3 weight)
25
%
< 2.50
< 2.50
< 2.50
62.5
%
< 2.00
< 2.00
< 2.00
100
%
< 1.50
< 1.50
< 1.50
Achievement between the 25% and 100% levels illustrated above
will be interpolated, but achievement less than the 25% level
for any goal will result in 0% vesting for that goal.
Additionally, 100% achievement is the maximum level of vesting
(i.e. achievement in excess of 100% does not result in vesting
greater than 100%).
Peabody determined that the grant levels for the spin-off were
in line with typical market practices for similar transactions,
and they provide a significant equity stake in Patriot to key
executives. Pursuant to their respective employment agreements,
the named executive officers received, in connection with the
spin-off, a one-time long-term incentive grant as follows:
Restricted
Stock
Stock
Name
Options (#)
Units (#)
Richard M. Whiting
186,425
79,335
Mark N. Schroeder
55,810
23,751
Jiri Nemec
55,810
23,751
Charles A. Ebetino, Jr.
55,810
23,751
Joseph W. Bean
31,450
13,384
The Cumulative Adjusted EBITDA performance measure is a key
metric in assessing operating performance and is also an
indicator of Patriot’s ability to meet debt service and
capital expenditure
requirements. Adjusted EBITDA is defined as net income (loss)
before deducting net interest expense, income taxes, minority
interests, asset retirement obligation expense and depreciation,
depletion and amortization.
The Return on Invested Capital is intended to measure financial
stability over the five, six and seven year periods and will be
calculated as follows:
•
For the five-year measurement period ending December 31,2012: Five-year cumulative Adjusted EBITDA divided by the
five-year
(2008-2012)
Total Invested Capital amount.
•
Total Invested Capital includes total debt, total
stockholder’s equity and legacy liabilities.
•
For the six-year measurement period ending December 31,2013: Six-year cumulative Adjusted EBITDA divided by the
six-year
(2008-2013)
Total Invested Capital amount.
•
For the seven-year measurement period ending December 31,2014: Seven-year cumulative Adjusted EBITDA divided by the
seven-year
(2008-2014)
Total Invested Capital amount.
A long-term incentive opportunity is available to each of
Patriot’s named executive officers and certain other key
employees through annual awards and is designed to be
competitive and based on actual Patriot performance. The first
of these annual awards was granted to the named executive
officers in the form of restricted shares that will cliff vest
three years from November 1, 2007. Restricted stock is
designed to attract and retain the executive team, align
executive and stockholder interests, and provide executives with
stock ownership in Patriot. The timing, form and amount of
future annual awards will be determined by Patriot’s
Compensation Committee and, with respect to the Chief Executive
Officer, the independent members of the Board of Directors.
Under the terms of their respective employment agreements, the
named executive officers received annual long-term incentive
awards with a value at least equal to the percentage of their
base salaries set forth below:
As a %
Restricted
Name
of Salary
Stock (#)
Richard M. Whiting
250
%
46,667
Mark N. Schroeder
120
%
12,000
Jiri Nemec
175
%
17,500
Charles A. Ebetino, Jr.
120
%
12,000
Joseph W. Bean
75
%
5,500
The shares will immediately vest upon a change of control of
Patriot or upon the holder’s death or disability. If the
holder’s employment is terminated for reasons other than
death or disability, all unvested restricted shares will be
forfeited.
Retirement
Benefits
Defined
Contribution Plan
Patriot maintains a defined contribution retirement plan and
other health and welfare benefit plans for its employees. Named
executive officers participate in these plans on the same terms
as other eligible employees, subject to any legal limits on the
amounts that may be contributed by or paid to executives under
the plans.
Excess
Defined Contribution Retirement Plan
Patriot maintains one excess defined contribution plan that
provides retirement benefits to executives whose pay exceeds
legislative limits for qualified benefit plans, which includes
the named executive officers.
The named executive officers receive the same welfare and fringe
benefits as all other employees of Patriot.
Perquisites
Patriot does not provide any perquisites in excess of $10,000
per individual per year to its named executive officers or other
senior executives.
Policy on
Grant of Equity-Based Compensation
In January 2008, the Committee approved a policy for granting
equity-based compensation. The Committee makes grants of
equity-based compensation to attract, motivate, compensate and
retain executives and other key employees and to align their
interests with the interests of stockholders. The timing of
grants of equity-based compensation is designed to achieve these
purposes. The following describes the regular process for making
grants.
At the regularly scheduled meeting of the Compensation Committee
of the Board of Directors held in December of each year, the
Committee reviews the performance of Patriot and senior
management during the fiscal year. Based upon that review and
such other factors as the Committee determines are relevant,
including the recommendations of the Committee’s
compensation consultant, the Committee grants equity-based
compensation to senior management by approving either
(i) the terms of specific grants or (ii) a specific
formula for determination of the terms of the grants. Such
grants are made effective the first business day in January of
the following year and may be determined based on the closing
price of Patriot’s common stock as reported on the New York
Stock Exchange (or the principal stock exchange or market on
which the Common Stock is then traded) on such day or the last
preceding day on which a sale was reported (“the fair
market value”).
The Compensation Committee also approves all grants of
equity-based compensation to newly-hired or promoted eligible
employees, or made under or in connection with retention
agreements or for other valid business purposes, that were not
made at the foregoing scheduled meeting of the Committee. Such
grants must be approved at a regular or special meeting of the
Committee that occurs on or prior to the date on which the award
is considered to be granted.
All stock options must be granted at an option price not less
than the fair market value. The grant date of any award is the
date of the meeting of the Committee approving the grant or, if
so approved by the Committee and reflected in the minutes of
such meeting, any later date the Committee approves.
Stock
Ownership Guidelines
Stock
Ownership Guidelines
Both Management and the Board of Directors believe
Patriot’s executives should acquire and retain a
significant amount of Patriot Common Stock in order to further
align their interests with those of stockholders.
Under Patriot’s share ownership guidelines, the Chief
Executive Officer is encouraged to acquire and retain Patriot
stock having a value equal to at least five times his or her
base salary. Other named executive officers are encouraged to
acquire and retain Patriot stock having a value equal to at
least three times their base salary. All such executives are
encouraged to meet these ownership levels within five years
after assuming their executive positions.
The following table summarizes the named executive
officers’ ownership of Patriot Common Stock as of
December 31, 2007.
Named
Executive Officer Stock Ownership
Ownership
Share
Share
Guidelines,
Ownership
Ownership
Ownership
Relative to
Relative to
Name
(#)(1)
($)(2)
Base Salary
Base Salary
Richard M. Whiting(3)
160,046
6,680,320
5
x
9.5
x
Mark N. Schroeder(4)
42,256
1,763,765
3
x
4.7
x
Jiri Nemec(5)
45,036
1,879,803
3
x
5.0
x
Charles A. Ebetino, Jr.(6)
40,602
1,694,727
3
x
4.5
x
Joseph W. Bean(7)
22,095
922,245
3
x
3.4
x
(1)
Includes shares acquired as a result of Peabody’s spin-off
of Patriot through a stock dividend; through the open market,
time-vested restricted stock granted on November 1, 2007,
through the Annual Long-Term Incentive Award and time-vested
restricted stock units through the Extended Long-Term Incentive
Award.
(2)
Calculated based on Patriot’s closing market price per
share on the last trading day of 2007, $41.74.
(3)
Includes 79,334 time-vested restricted stock units granted to
Mr. Whiting on November 1, 2007 under the terms of his
Extended Long-Term Incentive Award.
(4)
Includes 23,750 time-vested restricted stock units granted to
Mr. Schroeder on November 1, 2007 under the terms of
his Extended Long-Term Incentive Award.
(5)
Includes 23,750 time-vested restricted stock units granted to
Mr. Nemec on November 1, 2007 under the terms of his
Extended Long-Term Incentive Award.
(6)
Includes 23,750 time-vested restricted stock units granted to
Mr. Ebetino, Jr. on November 1, 2007 under the terms
of his Extended Long-Term Incentive Award.
(7)
Includes 13,384 time-vested restricted stock units granted to
Mr. Bean on November 1, 2007 under the terms of his
Extended Long-Term Incentive Award.
Deductibility
of Compensation Expenses
Pursuant to Section 162(m) under the Code, certain
compensation paid to executive officers in excess of
$1 million is not tax deductible, except to the extent such
excess constitutes performance-based compensation. While Patriot
is operating under transition rules under Section 162(m)
until its 2009 annual meeting, its Committee has and will
continue to carefully consider the impact of Section 162(m)
when establishing incentive compensation plans and making
awards. At the same time, the Committee considers its primary
goal to design compensation strategies that further the economic
interests of Patriot and its stockholders. In certain cases, the
Compensation Committee may determine that the amount of tax
deductions lost is insignificant when compared to the potential
opportunity a compensation program provides for creating
stockholder value. The Compensation Committee therefore retains
the ability to evaluate the performance of Patriot’s
executive officers and to pay appropriate compensation, even if
it may result in the non-deductibility of certain compensation.
The following table summarizes the total compensation paid to
the Chief Executive Officer, the Chief Financial Officer and the
three other most highly compensated executive officers for their
service to Patriot for the period November 1, 2007 through
December 31, 2007.
Change in
Pension Value
and Non-
Qualified
Non-Equity
Deferred
Stock
Option
Incentive Plan
Compensation
All Other
Salary
Bonus
Awards
Awards
Compensation
Earnings
Compensation
Total
Name and Principal Position
Year
($)
($)
($)(2)
($)(2)
($)(3)
($)(4)
($)(5)
($)
Richard M. Whiting(1)
2007
116,667
—
182,993
79,303
125,413
—
8,397
512,772
President & Chief Executive Officer
Mark N. Schroeder(1)
2007
62,500
—
50,800
23,741
53,748
—
4,538
195,326
Senior Vice President & Chief Financial Officer
Jiri Nemec(1)
2007
62,500
—
61,914
23,741
37,702
—
4,538
190,395
Senior Vice President & Chief Operating Officer
Charles A. Ebetino, Jr.(1)
2007
62,500
—
50,800
23,741
51,708
—
4,668
193,416
Senior Vice President - Corporate Development
Joseph W. Bean(1)
2007
45,833
—
26,076
13,378
29,562
—
3,286
118,135
Senior Vice President, General Counsel & Secretary
(1)
Each of the above-named executives began employment with Patriot
effective with the November 1, 2007 spin-off. Therefore,
the amounts reflected in the Summary Compensation Table
represent compensation for the period November 1, 2007 to
December 31, 2007.
(2)
Long-term incentive awards to the named executive officers
consist of restricted stock and restricted stock units
(reflected in the “Stock Award” column above) and
stock options (reflected in the “Option Awards” column
above). The value of stock awards and option awards is the
compensation charge dollar amount recognized for financial
statement reporting purposes for 2007 in accordance with
FAS 123R. The grant date fair value of stock awards and
option awards for financial statement reporting purposes in
accordance with FAS 123R is included in the Grants of
Plan-Based Awards Table on page 169 of this proxy
statement/prospectus. A discussion of the relevant fair value
assumptions is set forth in Note 22 to Patriot’s
consolidated financial statements on
pages E-33
through E-35
of this proxy statement/prospectus. Patriot cautions that the
amount ultimately realized by the named executive officers from
the stock and option awards will likely vary based on a number
of factors, including Patriot’s actual operating
performance, stock price fluctuations and the timing of
exercises (in the case of options only) and sales.
(3)
The material terms of these awards are described under the
caption “Annual Incentive Plan” in the Compensation
Discussion and Analysis section on page 161 of this proxy
statement/prospectus.
(4)
Patriot does not have a pension plan or a deferred compensation
plan.
(5)
Amounts included in this column are described in the All Other
Compensation Table on page 169 of this proxy
statement/prospectus.
The following table sets forth detail of the amounts reported in
the All Other Compensation column of the Summary Compensation
Table.
Annual
401(K)
Matching and
Group Term
Performance
Life Insurance
Contributions
Total
Name
Year
($)
($)
($)
Richard M. Whiting
2007
207
8,190
8,397
Mark N. Schroeder
2007
150
4,388
4,538
Jiri Nemec
2007
150
4,388
4,538
Charles A. Ebetino, Jr.
2007
280
4,388
4,668
Joseph W. Bean
2007
68
3,218
3,286
Grants of
Plan-Based Awards in 2007
The following table sets forth information concerning the grant
of plan-based awards to each of Patriot’s named executive
officers for the period November 1, 2007 through
December 31, 2007. Each named executive officer received
restricted stock, restricted stock units and stock option awards
on November 1, 2007.
Equity
Incentive
All Other
All
All Other
Plan
Stock
Other
Option
Exercise
Awards:
Awards:
Stock
Awards:
or Base
Option
Grant
Number of
Awards:
Number of
Price of
Awards:
Estimated Possible Payouts
Estimated Future Payouts
Date
Shares of
Grant
Securities
Option
Grant
Under Non-Equity Incentive Plan Awards
Under Equity Incentive Plan Awards(1)
Fair
Stock or
Date Fair
Underlying
Awards
Date Fair
Grant
Threshold
Target
Maximum
Threshold
Target
Maximum
Value
Units
Value
Options
($/Sh)
Value
Name
Date
($)
($)
($)
(#)
(#)
(#)
($)(2)
(#)(3)
($)(2)
(#)(2)(4)
(2)(5)
($)(2)
Richard M. Whiting
11/1/2007
58,333
116,667
204,167
11/1/2007
79,334
79,334
198,334
2,999,802
11/1/2007
46,667
1,697,512
11/1/2007
186,425
37.50
2,682,458
Mark N. Schroeder
11/1/2007
25,000
50,000
87,500
11/1/2007
23,750
23,750
59,375
898,047
11/1/2007
12,000
436,500
11/1/2007
55,810
37.50
803,047
Jiri Nemec
11/1/2007
25,000
50,000
87,500
11/1/2007
23,750
23,750
59,375
898,047
11/1/2007
17,500
636,563
11/1/2007
55,810
37.50
803,047
Charles A. Ebetino, Jr.
11/1/2007
25,000
50,000
87,500
11/1/2007
23,750
23,750
59,375
898,047
11/1/2007
12,000
436,500
11/1/2007
55,810
37.50
803,047
Joseph W. Bean
11/1/2007
13,750
27,500
48,125
11/1/2007
13,384
13,384
33,460
506,083
11/1/2007
5,500
200,063
11/1/2007
31,450
37.50
452,532
(1)
The restricted stock unit awards are included in the
“Estimated Future Payouts Under Equity Incentive Plan
Awards” column above. Performance unit awards granted in
2007 will be earned based on achievement of performance
objectives for the period November 1, 2007 to
December 31, 2012, November 1, 2007 to
December 31, 2013 and November 1, 2007 to
December 31, 2014. The material terms of these awards,
including payout formulas, are described under the caption
“Restricted Stock Units” in the Compensation
Discussion and Analysis section on page 163 of this proxy
statement/prospectus.
The value of stock awards, option awards and restricted stock
unit awards is the grant date fair value determined under
FAS 123R for financial statement reporting purposes. A
discussion of the relevant fair value assumptions is set forth
in Note 22 to Patriot’s consolidated financial
statements on
pages E-33
through E-35
of this proxy statement/prospectus. Patriot cautions that the
amount ultimately realized by the named executive officers from
the stock, unit and option awards will likely vary based on a
number of factors, including Patriot’s actual operating
performance, stock price fluctuations and the timing of
exercises (in the case of options only) and sales.
(3)
Restricted stock awards are reflected in the “All Other
Stock Awards” column above. Restricted stock cliff vests on
the third anniversary of the date of grant.
(4)
The options vest fifty percent on the fifth anniversary of the
date of grant, 25% on the sixth anniversary of the grant date
and the remaining 25% on the seventh anniversary of the grant
date. Other material terms of these awards are described under
the caption “Stock Options” in the Compensation
Discussion and Analysis section on page 163 of this proxy
statement/prospectus.
(5)
The exercise price for all options is equal to the closing
market price per share of Patriot’s Common Stock on the
date of grant.
The following table sets forth detail about the outstanding
equity awards for each of the named executive officers as of
December 31, 2007. Patriot cautions that the amount
ultimately realized by the named executive officers from the
outstanding equity awards will likely vary based on a number of
factors, including Patriot’s actual operating performance,
stock price fluctuations and the timing of exercises and sales.
All unexercisable options and unvested shares or units of stock
reflected in the table below are subject to forfeiture by the
holder if the holder terminates employment without good reason
(as defined in the holder’s employment agreement).
Stock Awards
Equity
Incentive
Equity
Plan Awards:
Incentive Plan
Market or
Awards:
Payout
Option Awards
Market
Number of
Value of
Number of
Number of
Number
Value of
Unearned
Unearned
Securities
Securities
of Shares
Shares or
Shares, Units
Shares,
Underlying
Underlying
or Units
Units of
or Other
Units or Other
Unexercised
Unexercised
Option
of Stock
Stock That
Rights That
Rights That
Options
Options
Exercise
Option
That Have
Have Not
Have Not
Have Not
(#)
(#)
Price
Expiration
Not Vested
Vested
Vested
Vested
Name
Exercisable
Unexercisable
($)
Date
(#)
($)(1)
(#)(2)
($)(3)
Richard M. Whiting
198,334
(6)
8,278,461
46,667
(5)
1,947,881
186,425
(4)
37.50
11/1/2017
Total
186,425
46,667
1,947,881
198,334
8,278,461
Mark N. Schroeder
59,375
(6)
2,478,313
12,000
(5)
500,880
55,810
(4)
37.50
11/1/2017
Total
55,810
12,000
500,880
59,375
2,478,313
Jiri Nemec
59,375
(6)
2,478,313
17,500
(5)
730,450
55,810
(4)
37.50
11/1/2017
Total
55,810
17,500
730,450
59,375
2,478,313
Charles A. Ebetino, Jr.
59,375
(6)
2,478,313
17,500
(5)
730,450
55,810
(4)
37.50
11/1/2017
Total
55,810
17,500
730,450
59,375
2,478,313
Joseph W. Bean
33,460
(6)
1,396,620
5,500
(5)
229,570
31,450
(4)
37.50
11/1/2017
Total
31,450
5,500
229,570
33,460
1,396,620
(1)
The market value was calculated based on the closing market
price per share of Patriot’s Common Stock on the last
trading day of 2007, $41.74 per share.
(2)
The number of restricted stock units disclosed includes both the
time-vested and performance-based awards and is based on the
assumption that all super-performance goals were achieved.
(3)
The payout value was calculated based on the closing market
price per share of Patriot’s Common Stock on the last
trading day of 2007, $41.74 per share, and the assumption that
all time-based awards vest and all super performance goals were
achieved.
The options were granted on November 1, 2007 and vest
50 percent on the fifth anniversary of the date of grant,
25 percent on the sixth anniversary of the grant date and
the remaining 25 percent on the seventh anniversary of the
grant date.
The restricted stock units were granted on November 1, 2007
and vest 50 percent on the fifth anniversary of the date of
grant, 25 percent on the sixth anniversary of the grant
date and the remaining 25 percent on the seventh
anniversary of the grant date, with opportunities to earn
additional units if super-performance targets are achieved by
December 31, 2012, December 31, 2013 and
December 31, 2014. The super-performance targets are
described under “One-Time Long-Term Incentive Awards”
in the Compensation Discussion and Analysis on page 163 of
this proxy statement/prospectus.
Options
Exercised and Stock Vested In 2007
None of the named executive officers exercised any stock options
or had any stock awards that vested during 2007.
Potential
Payments Upon Termination or Change of Control
In connection with the spin-off and in consultation with Mercer,
Patriot entered into employment agreements with each of
Patriot’s named executive officers and with certain other
key executives. The terms of those agreements, including the
provision of post-termination benefits, as described in detail
below, were structured to attract and retain persons believed to
be key to Patriot’s success as well as be competitive with
compensation practices for executives in similar positions at
companies of similar size and complexity.
The Chief Executive Officer’s employment agreement will
extend from day-to-day so that there is at all times remaining a
term of three years. Following a termination without cause or
resignation for good reason, the Chief Executive Officer would
be entitled to a payment equal to three years’ base salary
and three times the higher of (1) the target annual bonus
for the year of termination or (2) the average of the
actual annual bonuses Patriot paid in respect of the three prior
years. One-third of this severance payment would be payable in
twelve equal monthly installments commencing on the date of
termination, with the remainder payable in a lump sum on the
first anniversary of termination. Upon termination, the CEO
would also be entitled to a one-time prorated bonus for the year
of termination (based on Patriot’s actual performance for
that year multiplied by a fraction, the numerator of which is
the number of calendar days he was employed during the year of
termination, and the denominator of which is the total number of
calendar days during that year), payable when bonuses, if any,
are paid to other executives. He would also be entitled to
receive qualified and nonqualified retirement, life insurance,
medical and other benefits for three years following
termination. If the CEO is terminated without cause or resigns
for good reason following a change of control, he would be
entitled to all benefits described above, and all outstanding
equity awards would accelerate as a result of the change of
control and would not be forfeited upon subsequent termination
of the CEO’s employment. If the CEO is terminated without
cause or resigns for good reason absent a change of control, he
would be entitled to all benefits described above, but all
outstanding unvested equity awards would not accelerate and
would be forfeited.
The employment agreements for the Senior Vice
President & Chief Operating Officer and the Senior
Vice President & Chief Financial Officer will extend
from day-to-day so that there is at all times a remaining term
of one year. Following a termination without cause or
resignation for good reason, each would be entitled to a payment
equal to one year of base salary plus (1) the target annual
bonus for the year of termination or (2) the average of the
actual annual bonuses Patriot paid in respect of the three prior
years. This amount would be payable in twelve equal monthly
installments commencing on the date of termination. In addition,
each would be entitled to a one-time prorated bonus for the year
of termination (based on Patriot’s actual performance for
that year multiplied by a fraction, the numerator of which is
the number of calendar days the executive officer was employed
during the year of termination, and the denominator of which is
the total number of calendar days during that year), payable
when bonuses, if any, are paid to Patriot’s other
executives. Each of these
officers would also be entitled to receive qualified and
nonqualified retirement, life insurance, medical and other
benefits for one year following termination. If any of these
officers is terminated without cause or resigns for good reason
following a change of control, he would be entitled to all
benefits described above, and all outstanding equity awards
would accelerate as a result of the change of control and would
not be forfeited upon subsequent termination of any of these
officer’s employment. If any of these officers is
terminated without cause or resigns for good reason absent a
change of control, he would be entitled to all benefits
described above, but all outstanding unvested equity awards
would not accelerate and would be forfeited.
The employment agreements for the other named executive officers
will have an initial two-year term. During the initial two-year
term, following a termination without cause or resignation for
good reason, each would be entitled to a payment equal to the
product of (1) one year of base salary plus the greater of
(a) the target annual bonus for the year of termination or
(b) the average of the actual annual bonuses Patriot paid
in respect of the three prior years, multiplied by (2) the
greater of (a) one or (b) the number of calendar days
following the termination date remaining in the initial two-year
term divided by 365. In addition, the other named executive
officers would be entitled to a one-time prorated bonus for the
year of termination (based on Patriot’s actual performance
for that year multiplied by a fraction, the numerator of which
is the number of calendar days the executive officer was
employed during the year of termination, and the denominator of
which is the total number of calendar days during that year),
payable when bonuses, if any, are paid to Patriot’s other
executives. Each other named executive officer would also be
entitled to receive qualified and nonqualified retirement, life
insurance, medical and other benefits for the greater of one
year following the date of termination or the remainder of the
agreement’s initial two-year term. If the other named
executive officer is terminated without cause or resigns for
good reason following a change of control during the term of the
employment agreement, he would be entitled to all benefits
described above, and all outstanding equity awards would
accelerate as a result of the change of control and would not be
forfeited upon subsequent termination of any of these named
executive officer’s employment. If any of these other named
executive officers is terminated without cause or resigns for
good reason absent a change of control, he would be entitled to
all benefits described above, but all outstanding unvested
equity awards would not accelerate and would be forfeited.
If an employment agreement for any of the other named executive
officers is not extended by mutual consent of the parties, the
executive will no longer be entitled to receive any special
termination benefits; provided, however, if that executive is
thereafter terminated by Patriot other than for cause,
disability or death, he would be entitled to receive a one-year
severance payment, pro-rated bonus and continuation benefits for
one year as described above.
If any of the named executive officers is terminated for cause
or resigns without good reason, the compensation due to that
officer would only include accrued but unpaid salary and payment
of accrued and vested benefits and unused vacation time. If that
officer is terminated due to death or disability, he would be
entitled to receive accrued but unpaid salary and payment of
accrued and vested benefits and unused vacation time. He also
would receive a pro-rated bonus for the year of termination, as
described above.
Under all executives’ employment agreements, Patriot would
not be obligated to provide any benefits under tax qualified
plans that are not permitted by the terms of each plan or by
applicable law or that could jeopardize the plan’s tax
status. Continuing benefit coverage would terminate to the
extent an executive is offered or obtains comparable coverage
from any other employer. The employment agreements will provide
for confidentiality during and following employment, and will
include noncompetition and nonsolicitation covenants that will
be effective during and for one year following employment. If an
executive breaches any of his or her confidentiality,
noncompetition or nonsolicitation covenants, the executive will
forfeit any unpaid amounts or benefits. To the extent that
excise taxes are incurred by an executive as a result of
“excess parachute payments,” as defined by IRS
regulations, Patriot will pay additional amounts so that the
executive would be in the same financial position as if the
excise taxes were not incurred.
Under the executives’ employment agreements, “Good
reason” is defined as (i) a reduction by Patriot in
the executive’s base salary, (ii) a material reduction
in the aggregate program of employee benefits and
perquisites to which the executive is entitled (other than a
reduction that generally affects all executives), (iii) a
material decline in the executive’s bonus or long-term
incentive award opportunities, (iv) relocation of the
executive’s primary office by more than 50 miles from
the location of the executive’s primary office in Saint
Louis, Missouri or (v) any material diminution or material
adverse change in the executive’s title, duties,
responsibilities or reporting relationships. Resignation
“without good reason” is not only voluntary
termination by the employee, but also any other reason that is
not included in the definition of good reason.
Under the executives’ employment agreements, a “change
of control” is defined as (a) a person (with certain
exceptions) becoming the direct or indirect beneficial owner of
securities of Patriot representing 50% or more of the combined
voting power of Patriot, (b) if, during any period of
twelve months, the constitution of Patriot’s Board of
Directors changes such that individuals who were directors at
the beginning of that period, and new directors (other than
directors nominated by a person who has entered into an
agreement with Patriot that would constitute a “change of
control” or by any person who has announced an intention to
take or to consider taking actions which if consummated would
constitute a “change of control”) whose election by
Patriot’s Board of Directors or nomination for election by
Patriot’s stockholders was approved by a vote of
Patriot’s stockholders or at least three-fourths of
Patriot’s directors who were either directors at the
beginning of such period or whose election or nomination for
election was previously so approved, cease to constitute a
majority of Patriot’s Board of Directors, (c) the
consummation of any merger, consolidation, plan of amalgamation,
reorganization or similar transaction or series of transactions
in which Patriot is involved, unless the stockholders of Patriot
immediately prior thereto continue to own more than 50% of the
combined voting power of Patriot or the surviving entity in
substantially the same proportions or (d) the consummation
of a sale or disposition by Patriot of all or substantially all
of its assets (with certain exceptions).
In connection with the spin-off, Patriot also entered into an
employment agreement with Irl F. Engelhardt to serve as Chairman
of the Board and Executive Advisor at a base salary of $250,000
per year and a target annual bonus of 50 percent of base
salary. He also received a one time grant of restricted shares
valued at $650,000 based on the fair market value of
Patriot’s common stock on the date of the spin-off. The
restricted stock cliff vests three years from the date of the
grant and will accelerate vest upon death, disability or a
change of control (as defined above). Mr. Engelhardt’s
agreement has a term expiring December 31, 2010, which may
be extended by mutual agreement. Patriot may only terminate his
employment as Executive Advisor for cause, disability or death.
The Board of Directors may terminate his service as Chairman of
the Board at any time for any reason. Mr. Engelhardt may
terminate his employment at any time; however, if he terminated
employment for good reason, he would be entitled to his base
salary through December 31, 2010, a one-time prorated bonus
for the year of termination (based on Patriot’s actual
performance multiplied by a fraction, the numerator of which is
the number of business days he was employed during the year of
termination, and the denominator of which is the total number of
business days during that year), payable when bonuses, if any,
are paid to other executives. He would also receive qualified
and nonqualified retirement, life insurance, medical and other
benefits through December 31, 2010.
For purposes of Mr. Engelhardt’s agreement, “good
reason” is defined as (i) reduction by Patriot in the
executive’s base salary, (ii) a material reduction in
the aggregate program of employee benefits and perquisites to
which the executive is entitled (other than a reduction that
generally affects all executives), or (iii) any material
diminution or material adverse change in the executive’s
title, duties, responsibilities or reporting relationship as
Executive Advisor. The removal of Mr. Engelhardt as
Chairman of the Board will not constitute good reason. If
Mr. Engelhardt is terminated for cause or resigns without
good reason, the compensation due would only include accrued but
unpaid salary and payment of accrued and vested benefits and
unused vacation time. If Mr. Engelhardt is terminated due
to death or disability, he would be entitled to receive accrued
but unpaid salary and payment of accrued and vested benefits and
unused vacation time. He also would receive a pro-rated bonus
for the year of termination, as described above. Resignation
“without good reason” is not only voluntary
termination by Mr. Engelhardt, but also any other reason
that is not included in the definition of good reason.
In structuring the terms of Mr. Engelhardt’s
employment agreement, Peabody’s Compensation Committee
considered his extensive experience and relationships in the
coal industry, and designed a compensation package it believed
necessary to retain his services for the benefit of Patriot and
its stockholders. In
consultation with the independent compensation consultant and
based on its assessment of Mr. Engelhardt’s future
contributions to Patriot, the Committee deemed the magnitude and
structure of Mr. Engelhardt’s employment agreement to
be appropriate and recommended it to Peabody’s Board of
Directors (acting as Patriot’s Board of Directors prior to
the spin-off) for approval. Peabody’s Board of Directors,
excluding Mr. Engelhardt, who was Chairman at the time,
approved Mr. Engelhardt’s employment agreement based
on the Compensation Committee’s recommendation.
The tables below reflect the amount of compensation that would
have been payable to each of the named executive officers in the
event of termination of such executives’ employment, per
the terms of their employment agreements and long-term incentive
agreements. The amount of compensation payable to each named
executive officer upon Retirement, “For Cause”
Termination, Death or Disability, Voluntary Termination,
Involuntary Termination “Without Cause” or “For
Good Reason”, and Involuntary Termination as a Result of
Change of control is shown below. The amounts shown assume that
termination was effective as of December 31, 2007, and are
estimates of the amounts that would have been paid to the
executives upon their termination. The actual amounts that would
be payable can be determined only at the time of the
executives’ termination.
Estimated
Incremental Value Upon Termination
Involuntary
Termination
Involuntary
“Without Cause”
Termination as a
“For Cause”
Death or
Voluntary
or ‘‘For Good
Result of Change
Retirement
Termination
Disability
Termination
Reason”
in Control
Name
($)(1)
($)(2)
($)(3)
($)(4)
($)(5)
($)(6)
Richard M. Whiting
—
134,038
6,883,762
134,038
5,223,492
11,273,216
Mark N. Schroeder
—
0
2,028,839
0
1,011,057
3,437,606
Jiri Nemec
—
39,276
2,297,685
39,276
1,053,684
3,012,093
Charles A. Ebetino, Jr.
—
0
2,028,839
0
1,608,161
4,401,583
Joseph W. Bean
—
0
1,086,566
0
1,030,552
2,604,734
(1)
None of the named executive officers was eligible for retirement
(age 55, with 5 years of service) as of
December 31, 2007.
(2)
“For Cause” means (i) any material and
uncorrected breach by the executive of the terms of their
employment agreement, including but not limited to engaging in
disclosure of secret or confidential information, (ii) any
willful fraud or dishonesty of the executive involving the
property or business of Patriot, (iii) a deliberate or
willful refusal or failure to comply with any major corporate
policies which are communicated in writing or (iv) the
executive’s conviction of, or plea of no contest to any
felony if such conviction shall result in imprisonment.
Compensation payable to an executive would include only accrued
but unused vacation.
(3)
For all named executive officers, compensation payable upon
Death or Disability would include a) accrued but unused
vacation, b) prorated annual incentive for year of
termination, c) 100% payout of the time-vested portion of
outstanding restricted stock units, and d) the value an
executive could realize as a result of the accelerated vesting
of any unvested stock option awards and restricted stock, per
the terms of the executive’s respective grant agreements.
For 2007, the prorated annual incentive was equal to 100% of the
non-equity incentive plan compensation, as shown in the Summary
Compensation Table on page 168 of this proxy
statement/prospectus, and payout of restricted stock units
reflects the values for the 2007 restricted stock units as shown
in the Outstanding Equity Awards Table on page 171 of this
proxy statement/prospectus. Amounts do not include life
insurance payments in the case of death.
(4)
For all named executive officers, the compensation payable would
include accrued but unused vacation.
(5)
For Mr. Whiting, the compensation payable would include
a) severance payments of three times base salary, b) a
payment equal to three times the higher of (1) the target
annual incentive or (2) the average of the actual annual
incentives paid in the three prior years, c) prorated
annual incentive for year of termination, d) continuation
of benefits for three years.
For Mr. Schroeder and Mr. Nemec, the compensation
payable would include a) severance payments of one times
base salary, b) a payment equal to one times the higher of
(1) the target annual incentive or (2) the average of
the actual annual incentives paid in the three prior years,
c) prorated annual incentive for year of termination and
d) continuation of benefits for one year.
For Mr. Ebetino and Mr. Bean, the compensation payable
would include a) severance payments of 1.83 times
(22 months) base salary, b) a payment equal to 1.83
times the higher of (1) the target annual incentive or
(2) the average of the actual annual incentives paid in the
three prior years, c) prorated annual incentive for year of
termination and d) continuation of benefits for
22 months.
(6)
Reflects total estimate of compensation payable as a result of
both a change of control and a termination of employment, as
detailed in the Estimated Current Value of Change of Control
Benefits Table on page 176 of this proxy
statement/prospectus. This includes the value of stock options,
restricted stock and the time-vested portion of restricted stock
units granted on November 1, 2007.
The named executive officers would be entitled to receive
certain benefits upon a change of control of Patriot under the
terms of their individual employment agreements and long-term
incentive agreements. The actual value of these benefits would
be known only if and when they become eligible for payment. The
following table provides an estimate of the value that would
have been payable to each named executive officer assuming a
change of control of Patriot had occurred on December 31,2007, including a
gross-up for
certain taxes in the event that any payment made in connection
with the change of control was subject to the excise tax imposed
by Section 4999 of the Code.
Estimated
Current Value of Change of Control Benefits
Accelerated Vesting of Unvested LTIP Awards
Severance
Estimated Tax
($)(3)
Amount
Gross Up
Restricted
Stock
Restricted Stock
Total
Name
($)(1)
($)(2)
Stock
Options
Units
($)
Richard M. Whiting
5,223,492
—
1,947,881
790,442
3,311,401
11,273,216
Mark N. Schroeder
1,011,057
697,710
500,880
236,634
991,325
3,437,606
Jiri Nemec
1,053,684
—
730,450
236,634
991,325
3,012,093
Charles A. Ebetino, Jr.
1,608,161
1,064,583
500,880
236,634
991,325
4,401,583
Joseph W. Bean
1,030,552
652,616
229,570
133,348
558,648
2,604,734
(1)
The severance amount is equal to the amount shown in the
“Involuntary Termination ‘Without Cause’ or
‘For Good Reason’’’ column in the Estimated
Incremental Value Upon Termination Table on page 175 of
this proxy statement/prospectus.
(2)
Includes excise tax, plus the effect of 35% federal income
taxes, 6% state income taxes, and 1.45%
FICA-HI
taxes on the excise tax. Excise tax is equal to 20% times the
excess parachute payment subject to excise tax. An excess
parachute payment is triggered when the change of control amount
is greater than the safe harbor amount (equal to 3x the base
amount less $1; base amount is the average of the previous
5 years’
W-2
earnings); actual excess parachute payment is equal to the
difference between the preliminary change of control amount and
the base amount. The gross up calculation assumes no allocation
of any amounts to the covenant not to compete provision in each
executive’s employment agreement, notwithstanding that such
allocation is permissible in certain circumstances under
applicable tax rules. Such an allocation may have the effect of
reducing or eliminating any gross up payment.
(3)
Reflects the value an executive could realize as a result of the
accelerated vesting of any unvested stock option awards, based
on the stock price on the last business day of 2007, $41.74. The
value realized is not and would not be a liability of Patriot.
2007
Annual Compensation of Directors
Annual compensation of non-employee directors for 2007 was
comprised of cash compensation, consisting of annual retainer
and committee fees, and equity compensation, consisting of
deferred stock units.
Each of these components is described in more detail below. The
total 2007 compensation of Patriot’s non-employee directors
is shown in the following table.
Annual
Board/Committee Fees
In 2007, non-employee directors received a pro-rata portion of
an annual cash retainer of $60,000. Non-employee directors who
served on more than one committee received an additional
pro-rata portion of an annual $10,000 cash retainer. The Audit
Committee Chairperson received an additional pro-rata portion of
an annual $15,000 cash retainer, and the other Audit Committee
members received additional pro-rata portions of annual $5,000
cash retainers. The Chairpersons of the Compensation and
Nominating & Governance Committees each received an
additional pro-rata portion of the annual $10,000 cash retainer.
Patriot pays travel and accommodation expenses of directors to
attend meetings and other corporate functions. Directors do not
receive meeting attendance fees.
Annual
Equity Compensation
In 2007, non-employee directors received annual equity
compensation valued at $65,000, awarded in the form of deferred
stock units. Non-employee directors also received an initial
deferred stock unit award valued at $75,000 upon joining the
Board of Directors. Deferred stock unit awards will vest on the
first anniversary of the grant date and will be distributed in
common shares three years after grant. In the event of a change
of control of Patriot (as defined in Patriot’s Long-Term
Equity Incentive Plan), all restrictions related to the deferred
stock units will lapse. The deferred stock units will provide
for vesting in the event of death or disability or termination
of service without cause with consent of Patriot’s Board of
Directors.
Director
Compensation
Change in
Pension Value
and Non-
qualified
Fees Earned
Non-Equity
Deferred
or Paid in
Stock
Option
Incentive Plan
Compensation
All Other
Cash
Awards
Awards
Compensation
Earnings
Compensation
Total
Name
($)
($)(1)(2)
($)
($)
($)
($)
($)
Chairman
Irl F. Engelhardt(3)
—
—
—
—
—
—
—
Non-Employee Directors
J. Joe Adorjan
35,000
23,338
—
—
—
—
58,338
B.R. Brown
35,000
23,338
—
—
—
—
58,338
John E. Lushefski
42,500
23,338
—
—
—
—
65,838
Michael M. Scharf
42,500
23,338
—
—
—
—
65,838
Robert O. Viets
42,500
23,338
—
—
—
—
65,838
(1)
The value of the deferred stock units was the 2007 compensation
charge dollar amount recognized for financial statement
reporting purposes in accordance with FAS 123R. For all
non-employee directors, the grant date fair values for deferred
stock units determined under FAS 123R for financial
reporting purposes was $60,000 for annual equity compensation
and $75,000 for the initial award given upon joining the Board
of Directors. A discussion of the relevant fair value
assumptions is set forth in Note 22 to Patriot’s
consolidated financial statements on
pages E-33
through E-35
of this proxy statement/prospectus. Patriot cautions that the
amount ultimately realized by the non-employee directors from
the deferred stock unit awards will likely vary based on a
number of factors, including Patriot’s actual operating
performance, stock price fluctuations and the timing of sales.
(2)
As of December 31, 2007, the aggregate number of deferred
stock units outstanding for each non-employee director was as
follows: Mr. Adorjan, 3,734; Mr. Brown, 3,734;
Mr. Lushefski, 3,734; Mr. Scharf, 3,734; and
Mr. Viets, 3,734.
Mr. Engelhardt, Chairman of the Board and Executive Advisor
of Patriot, continues to serve as an executive officer of
Patriot and receives a salary and other compensation pursuant to
the terms of an employment agreement with Patriot, which is
discussed in detail on page 174 of this proxy
statement/prospectus. He receives no additional compensation for
serving as director.
Director
Stock Ownership
Under Patriot’s share ownership guidelines for directors,
directors are encouraged to acquire and retain Patriot stock
having a value equal to at least three times their annual
retainer. Directors are encouraged to meet these ownership
levels within three years after joining the Board.
The following table summarizes the director ownership of Patriot
Common Stock as of December 31, 2007.
Ownership
Guidelines,
Ownership
Share
Share
Relative to
Relative to
Ownership
Ownership
Annual Retainer
Annual Retainer
Name(1)
(#)(2)
($)(3)
(4)
(5)
Chairman
Irl F. Engelhardt
157,715
6,583,024
—
—
Non-Employee Directors
J. Joe Adorjan
3,734
155,857
3
x
2.6
x
B.R. Brown
4,453
185,868
3
x
3.1
x
John E. Lushefski
3,734
155,857
3
x
2.6
x
Michael M. Scharf
3,734
155,857
3
x
2.6
x
Robert O. Viets
5,334
222,641
3
x
3.7
x
(1)
Mr. Whiting’s stock ownership is shown on the Named
Executive Officer Stock Ownership Table.
(2)
Includes shares acquired through open market purchases and
deferred stock units granted on November 1, 2007 in
accordance with the non-employee Board of Director compensation
ownership guidelines.
(3)
Value is calculated based on the closing market price per share
of Patriot’s Common Stock on the last trading day of 2007,
$41.74.
(4)
Based on base annual retainer. For 2007, the base annual
retainer was $60,000.
(5)
Represents current ownership, shown as a multiple of the base
annual retainer of $60,000.
Compensation
Committee
The members of the Compensation Committee are John E. Lushefski
(Chair), B. R. Brown and J. Joe Adorjan. The Board of Directors
has affirmatively determined that, in its judgment, all members
of the Compensation Committee are independent under rules
established by the New York Stock Exchange.
The following table sets forth information as of June 7,2008 with respect to persons or entities who are known to
beneficially own more than 5% of Magnum’s outstanding
common stock, each director of Magnum, each named executive
officer of Magnum, and all directors and executive officers of
Magnum as a group. As of the date of this proxy
statement/prospectus, there were 156 record holders of Magnum
common stock.
Amount and
Nature
of Beneficial
Percent of
Name and Address of Beneficial Owners
Ownership(1)
Class(2)
ArcLight Energy Partners Fund I, L.P.
17,843,448
(3)
34.7
%
ArcLight Energy Partners Fund II, L.P.
9,300,554
(4)
18.1
%
Cascade Investment, L.L.C.
4,946,990
(5)
9.6
%
Caisse de Dépôt et Placement du Québec
4,946,990
(6)
9.6
%
Howard Hughes Medical Institute
3,321,580
(7)
6.5
%
The Northwestern Mutual Life Insurance Company
3,321,580
(8)
6.5
%
Dan Revers
27,144,002
(9)
52.8
%
Robb Turner
27,144,002
(10)
52.8
%
Phil Messina
27,144,002
(11)
52.8
%
Allyson Tucker
0
0
Paul Vining
463,887
*
Larry Altenbaumer
12,000
*
David Turnbull
111,112
*
Richard Verheij
191,750
*
Robert Bennett
209,975
*
Dwayne Francisco
335,629
*
Keith St. Clair
241,335
*
All directors and executive officers as a group (11 people)
28,708,690
55.8
%
(1)
Beneficial ownership is determined in accordance with the rules
of the SEC and includes voting and investment power with respect
to shares. Unless otherwise indicated, the persons named in the
table have sole voting and sole investment control with respect
to all shares beneficially owned; includes shares of restricted
stock that were unvested as of June 7, 2008 (all of which
will vest upon consummation of the merger) as follows:
Mr. Paul Vining, 200,000 shares; Mr. Larry
Altenbaumer, 8,000 shares; Mr. David Turnbull,
59,687 shares; Mr. Richard Verheij,
135,687 shares; Mr. Robert Bennett,
165,687 shares; Mr. Dwayne Francisco,
283,333 shares; and Mr. Keith St. Clair,
110,000 shares. Does not include shares of Magnum common
stock issuable upon conversion of the Magnum convertible notes.
(2)
An asterisk (*) indicates that the applicable person
beneficially owns less than one percent of the outstanding
shares.
(3)
ArcLight Energy Partners Fund I, L.P. has the sole power to
vote, direct the voting of, dispose of and direct the
disposition of such shares. Such shares may be deemed to be own
beneficially (solely for purposes of
Rule 13d-3
under the Exchange Act) by Messrs. Revers, Turner and
Messina. However, as noted herein each of such individuals
expressly disclaims such ownership. ArcLight Energy Partners
Fund I, L.P. is located at 200 Clarendon Street, 55th
Floor, Boston, MA02117.
(4)
ArcLight Energy Partners Fund II, L.P. has the sole power
to vote, direct the voting of, dispose of and direct the
disposition of such shares. Such shares may be deemed to be own
beneficially (solely for purposes of
Rule 13d-3
under the Exchange Act) by Messrs. Revers, Turner and
Messina. However, as noted herein each of such individuals
expressly disclaims such ownership. ArcLight Energy Partners
Fund II, L.P. is located at 200 Clarendon Street, 55th
Floor, Boston, MA02117.
(5)
Cascade Investment, L.L.C. is located at 2365 Carillon Point,
Kirkland, WA98033. All common stock held by Cascade Investment,
L.L.C. (“Cascade”) may be deemed to be beneficially
owned by William H. Gates III as the sole member of Cascade.
Michael Larson, the Business Manager of Cascade, has voting
and investment power with respect to the common stock held by
Cascade. Mr. Larson disclaims any beneficial ownership of
the common stock beneficially owned by Cascade and
Mr. Gates.
(6)
Caisse de Dépôt et Placement du Québec is located
at Centre CDP Capital, 1000, place Jean-Paul Riopelle,
Montréal (Québec), H2Z 2B3, Canada.
(7)
Howard Hughes Medical Institute is located at 4000 Jones Bridge
Road, Chevy Chase, MD,20815.
(8)
The Northwestern Mutual Life Insurance Company is located at 720
East Wisconsin Avenue, Milwaukee, WI53202.
(9)
Mr. Revers is a managing director and member of ArcLight
Capital Holdings, LLC. 27,144,002 shares indicated as owned
by Mr. Revers are included because of Mr. Rever’s
affiliation with the ArcLight Funds. Mr. Revers disclaims
beneficial ownership of all shares owned by the ArcLight Funds
and neither the filing of this document nor any of its contents
shall be deemed to constitute an admission by Mr. Revers
that he is the beneficial owner of any of the securities
referred to herein for purposes of Section 13(d) of the
Securities Exchange Act of 1934, as amended, or for any other
purpose. Mr. Revers’ address is
c/o ArcLight
Capital Partners, LLC, 200 Clarendon Street, 55th Floor, Boston,
MA02117. See footnotes (3) and (4) above.
(10)
Mr. Turner is senior partner and member of ArcLight Capital
Holdings, LLC. 27,144,002 shares indicated as owned by
Mr. Turner are included because of Mr. Turner’s
affiliation with the ArcLight Funds. Mr. Turner disclaims
beneficial ownership of all shares owned by the ArcLight Funds
and neither the filing of this document nor any of its contents
shall be deemed to constitute an admission by Mr. Turner
that he is the beneficial owner of any of the securities
referred to herein for purposes of Section 13(d) of the
Securities Exchange Act of 1934, as amended, or for any other
purpose. Mr. Turner’s address is
c/o ArcLight
Capital Partners, LLC, 200 Clarendon Street, 55th Floor, Boston,
MA02117. See footnotes (3) and (4) above.
(11)
Mr. Messina is a principal of ArcLight Capital Holdings,
LLC. 27,144,002 shares indicated as owned by
Mr. Messina are included because of Mr. Messina’s
affiliation with the ArcLight Funds. Mr. Messina disclaims
beneficial ownership of all shares owned by the ArcLight Funds
and neither the filing of this document nor any of its contents
shall be deemed to constitute an admission by Mr. Messina
that he is the beneficial owner of any of the securities
referred to herein for purposes of Section 13(d) of the
Securities Exchange Act of 1934, as amended, or for any other
purpose. Mr. Messina’s address is
c/o ArcLight
Capital Partners, LLC, 200 Clarendon Street, 55th Floor, Boston,
MA02117. See footnotes (3) and (4) above.
Magnum is one of the largest coal producers in Central
Appalachia based on 2007 production. As of January 1, 2008,
Magnum controlled proven and probable reserves of
606.6 million tons of coal. Based on 2007 production of
16.1 million tons, Magnum’s reserve base could support
similar levels of production for more than 30 years.
Magnum produces, processes and sells bituminous coal with high
heat value and low sulfur content. As of January 1, 2008,
Magnum’s reserves had an average heat value of 12,783 Btu
per pound and an average sulfur content of 1.02%. Coal of this
quality typically sells at a higher price per ton than most
other types of coal produced in the United States outside of the
Central Appalachian Basin. As of March 31, 2008,
approximately 96%, 65% and 32% of Magnum’s expected coal
production in 2008, 2009 and 2010, respectively, was committed
and priced under sales contracts, some with pricing terms that
include a defined annual percentage increase, and others which
are tied to changes in published indices or have market-based
reopeners. Magnum’s production is sold as steam coal to
utilities and other customers for use in electricity generation
and as metallurgical coal for use in the production of
metallurgical coke.
History
The
Formation Transactions
Magnum was formed under the laws of the State of Delaware in
October 2005 by ArcLight Energy Partners Fund I, L.P.
(referred to in this proxy statement/prospectus as ArcLight
I) to effect the strategic combination of the Magnum
contributed properties and the Magnum acquired properties
(referred to in this proxy statement/prospectus as the Magnum
formation transactions). The following is a description of each
material agreement entered into in connection with the Magnum
formation transactions.
Purchase
and Sale Agreement with Arch Coal
On December 31, 2005, Magnum entered into a purchase and
sale agreement with Arch Coal, referred throughout this proxy
statement/prospectus as the Arch purchase and sale agreement,
pursuant to which Magnum acquired a number of properties,
including Apogee Coal, Catenary, Hobet, Robin Land Company LLC,
which we refer to as Robin Land and TC Sales Company, LLC, which
we refer to as TC Sales. The properties acquired from Arch Coal
are referred to together throughout this proxy
statement/prospectus
as the Magnum acquired properties.
Magnum acquired properties from Arch Coal in consideration for
Magnum’s assumption from Arch Coal of non-debt,
post-retirement liabilities of approximately $605.7 million
(excluding $15.0 million in voluntary employees’
beneficiary associations trusts, referred to in this proxy
statement/prospectus as VEBAs, that are funded by Arch Coal and
further described below) valued as of December 31, 2005.
Assumed Post-Retirement Liabilities. Pursuant
to the Arch purchase and sale agreement, Arch Coal established
two VEBAs, which are independent trusts qualified under
Section 501(c)(9) of the Code, that provide post-retirement
medical benefits to certain former employees of Apogee and
Hobet. Arch Coal funded VEBAs related to former employees of
Apogee and Hobet, in an aggregate amount of $15.0 million
in cash. The VEBAs are controlled by independent third-party
trustees. However, the responsibility for the post-retirement
benefits ultimately remains with Magnum, pursuant to the terms
of the Arch purchase and sale agreement. The VEBAs are intended
to partially pay for the post-retirement medical liabilities
assumed by Magnum with respect to certain former employees of
the Magnum acquired properties, and to the extent the VEBAs fail
to provide the post-retirement benefit liability offset they
were created to fund, Magnum will be liable to pay the
difference.
Magnum also assumed certain other liabilities related to former
employees of Apogee and Hobet, including liabilities related to
Black Lung claims; liabilities under the Coal Act; and potential
liabilities related to workers’ compensation claims (in
respect of which Arch Coal had contributed to Apogee and Hobet a
total of $4.5 million in cash for the purpose of providing
benefits to former employees of those entities under the
Black Lung Benefits Reform Act of 1977, although such amounts
are not restricted by Apogee, Hobet or Magnum for such
purposes). In addition, Arch Coal agreed to indemnify Magnum for
any and all liabilities Magnum incurs for workers’
compensation benefits relating to former employees of Apogee and
Hobet. Arch Coal has also agreed to reimburse Magnum for any
payments Magnum is required to make to the UMWA arising out of
pending litigation in the case of A.T. Massey Coal Company,
et al. v. Barnhart.
Indemnification. Arch Coal agreed to indemnify
Magnum for losses arising from breaches of its representations,
warranties, covenants and agreements in the Arch purchase and
sale agreement. Arch Coal’s indemnification obligations are
subject to an aggregate threshold amount of $7.5 million
and an aggregate maximum liability cap of $75.0 million.
Arch Coal’s representations and warranties and related
indemnification obligations are subject to specified survival
periods. The survival period for most of the representations and
warranties expired on December 31, 2006. For those relating
to title to membership interests, title to coal mining
interests, benefit plans and environmental and tax matters, the
survival period expires on the earlier of December 31, 2008
or the expiration of the relevant statute of limitations.
Arch Coal agreed to indemnify Magnum against claims arising from
all pending litigation proceedings at December 31, 2005
that involve any of the Magnum acquired properties, which
obligation will continue indefinitely. Arch Coal also agreed to
indemnify Magnum against claims arising from workers’
compensation benefits paid to certain former employees of the
Magnum acquired properties; from losses incurred by Magnum
related to certain Arch Coal employee benefit plans in existence
at the execution date of the Arch purchase and sale agreement
and employee pension benefit plans in existence during the four
years prior thereto; from losses incurred by Magnum related to
benefit claims by former employees of Arch Coal not covered
under benefit plans assumed by Magnum under the Arch purchase
and sale agreement and certain long-term disability obligations
thereunder; and from losses incurred by Magnum related to Arch
Coal credit agreements or liens.
Subject to certain limited exceptions, Magnum agreed to
indemnify Arch Coal for various liabilities and obligations
including, among others, (i) any payments that Arch Coal
makes with respect to guarantees on surety bonds and real
property leases on mining properties that Magnum acquired
pursuant to the Arch purchase and sale agreement, (ii) any
losses incurred by Arch Coal under the Worker Adjustment and
Retraining Notification Act and similar statutes and regulations
affecting employees of the Magnum acquired properties, and
(iii) any losses incurred by Arch Coal related to retention
agreements and liabilities under the Coal Act with respect to
certain employees and former employees of the Magnum acquired
properties. Magnum’s indemnification obligations will
continue indefinitely.
Guarantees of Surety Bonds, Leases and Other Agreements by
Arch Coal. Arch Coal has agreed to continue to
guarantee surety bonds it had in place with respect to the
Magnum acquired properties at December 31, 2005. Magnum has
agreed to indemnify Arch Coal and its affiliates, directors,
officers, employees and agents for any payments that Arch Coal
makes with respect to these guarantees, and for any costs and
expenses, including cost of maintenance, paid or incurred by
Arch Coal associated with surety bonds that it will maintain in
Magnum’s favor. Pursuant to a letter agreement between Arch
Coal and Magnum amending the terms of the Arch purchase and sale
agreement dated March 27, 2008, if Magnum cannot obtain a
release of the Arch Coal guarantees related to the reclamation
bonds by September 30, 2008, Magnum will be required to
post a letter of credit in Arch Coal’s favor in the amount
of the portion of the reclamation bonds guaranteed by Arch Coal
that is reflected as a liability on Magnum’s balance sheet.
Alternatively, if Magnum merges with a publicly traded coal
company prior to September 30, 2008, and prior to the
closing of the merger, Magnum has not obtained the release of
the Arch Coal guarantees outstanding, Magnum will be required to
post letters of credit in Arch Coal’s favor in accordance
with a specific schedule after the closing of such merger. The
merger with Patriot will subject Magnum to this requirement.
Following the termination of Arch Coal’s guarantee, or
earlier in the event that Arch Coal has defaulted on its
guarantee, Magnum could be subject to increased costs to
maintain the surety bonds or be unable to obtain replacement
surety bonds. As of the date of this proxy statement/prospectus,
Magnum has not obtained the release of the outstanding Arch Coal
guarantees. Arch Coal has also agreed to guarantee certain
equipment leases, the coal mining leases held by the Magnum
acquired properties and certain coal sales agreements described
in the Arch purchase and sale
agreement, and Magnum has agreed to use its commercially
reasonable efforts to facilitate the release of Arch Coal from
such guarantees.
Contribution
Agreement among ArcLight, Elliott and Magnum.
As part of the Magnum formation transactions, Magnum entered
into a contribution agreement with ArcLight I and Timothy
Elliott pursuant to which, among other things, ArcLight I and
Mr. Elliott contributed to Magnum their respective
ownership interests in Trout, whose properties include the
Panther, Remington and Jupiter mining complexes; and New Trout
Coal Holdings II, LLC, whose properties include, among other
things, the Dakota mining complex. The properties acquired
pursuant to the contribution agreement are referred to together
throughout this proxy statement/prospectus as the Magnum
contributed properties. Pursuant to the contribution agreement,
Magnum assumed the debt held by Trout and Dakota at the time of
their contribution to Magnum (of approximately
$402.2 million) on March 21, 2006, which was repaid
contemporaneously with the proceeds of the recapitalization of
Magnum in March 2006. The assumed debt did not include
$96.4 million in aggregate principal amount of subordinated
notes or the accrued interest outstanding at March 21, 2006
issued by Trout and Dakota in favor of ArcLight I. In exchange
for the contribution, ArcLight I was issued
17,843,448 shares of Magnum common stock and Elliott was
issued 338,022 shares of Magnum common stock.
Indemnification. Under the contribution
agreement, Magnum is liable for any taxes of the Magnum
contributed properties owed by the contributing stockholders
prior to their contribution to Magnum, in addition to all taxes
that are owed by them after the date of their contribution to
Magnum. Magnum is also liable for all real estate and personal
property taxes relating to the Magnum contributed properties.
Master
Coal Sales and Services Agreement.
On December 31, 2005, Magnum entered into a master coal
sales and services agreement with Arch Coal pursuant to which
Magnum agreed to sell to Arch Coal all coal required to be
supplied by Arch Coal under sales contracts that Magnum acquired
pursuant to the Arch purchase and sale agreement, but for which
Arch Coal had not yet received consent to transfer. Magnum also
performed certain coal production services on behalf of Arch
Coal including sourcing, processing, loading, sampling,
analyzing, weighing, scheduling, transporting and delivering
such coal. Magnum currently directly invoices customers under
these contracts. The master coal sales and services agreement
will terminate with respect to each coal sales contract upon the
earliest to occur of (i) receipt of consent or approval to
the assignment of such contract to Magnum and execution of an
assignment agreement, (ii) full performance and expiration
of such coal sales contract, and (iii) termination of such
coal sales contract.
Lease
and Option to Purchase.
On December 31, 2005, Robin Land, which Magnum acquired
pursuant to the Arch purchase and sale agreement on the same
date, and Ark Land Company, a wholly-owned subsidiary of Arch
Coal, entered into a lease agreement and a separate option to
purchase pursuant to which Robin Land acquired a ten-year lease
on Arch Coal’s Blue Creek property in Kanawha County and
Clay County, West Virginia, with automatic annual renewals
thereafter, and an option outstanding through December 31,2006 to acquire the Blue Creek property for consideration of
$20.0 million, which option was subsequently extended to
May 31, 2007 and then sold to a third party who
subsequently exercised the option. Robin Land now leases the
Blue Creek property from such third party.
Magnum’s
Mining Operations
Magnum has seven mining complexes, which include 11 mines, seven
preparation plants and one coal transloading dock facility. All
of Magnum’s mining complexes are located in West Virginia
and are operated on land that Magnum either owns or leases on a
long-term basis from various lessors. Most of the coal produced
by Magnum comes from company-operated facilities. Magnum employs
underground and surface mining methods that are designed to most
efficiently mine coal according to the geologic characteristics
of its
reserves. All of Magnum’s operations are located on or near
public roadways and receive electrical power from commercially
available sources. Existing facilities and equipment are
maintained in good working condition and are continuously
updated through investments in capital expenditure.
Surface
Mining
Surface mining is used when coal is located close to the
surface. In 2007, 68.9% of Magnum’s coal production came
from surface mines. This method involves the removal of
overburden (earth and rock covering the coal) with heavy earth
moving equipment and explosives, loading out the coal, replacing
the overburden and topsoil after the coal has been excavated,
re-establishing vegetation and plant life and making other
improvements. Seam recovery for surface mining is typically
between 80% and 90%. Magnum uses the following three types of
surface mining methods:
Truck-and-Shovel/Loader
Mining. Truck-and-shovel/loader
mining is a surface mining method that uses large shovels or
loaders to load overburden into rock trucks for transport to
either valley fills, spoil disposal areas or to backfill pits
after coal removal. Loaders load coal into trucks for transport
to a preparation plant or unit train loadout facility.
Dragline Mining. Dragline mining is an
efficient surface mining method that uses large capacity
draglines to remove overburden to expose the coal seams. In
Central Appalachia, the seams to be mined above the dragline are
pre-stripped with support equipment in order to create a bench
upon which the dragline can operate. Loaders load coal into haul
trucks for transport to a preparation plant or unit train
loadout facility.
Highwall Mining. Highwall mining is a surface
mining method generally utilized in conjunction with
truck-and-shovel/loader
surface mining. As the highwall is exposed by the
truck-and-shovel/loader
operation, a modified continuous miner with an attached auger
conveyor system cuts horizontal passages from the highwall into
a seam. These passages can penetrate to a depth of up to
1,600 feet.
Underground
Mining
Magnum’s underground mines are typically operated using one
of two different techniques: continuous mining or longwall
mining. Underground mining represented 31.1% of Magnum’s
2007 production.
Continuous Mining. Continuous mining is one
type of
room-and-pillar
mining in which rooms are cut into the coal bed leaving a series
of pillars, or columns of coal, to help support the mine roof
and control the flow of air. Continuous mining equipment is used
to cut the coal from the mining face. As mining advances, a
grid-like pattern of entries and pillars is formed. Shuttle cars
are used to transport coal from the coal face or actual working
area to the conveyor belt for transport to the surface. When
mining advances to the end of a panel, retreat mining may begin.
In retreat mining, as much coal as is feasible is mined from the
pillars that were created in advancing the panel. When retreat
mining is completed to the mouth of the panel, the mined panel
is abandoned. The
room-and-pillar
method is often used to mine smaller coal blocks or thinner
seams.
Longwall Mining. Longwall mining is the most
productive underground mining method used in the United States.
A rotating drum is trammed mechanically across the face of coal,
and a hydraulic system supports the roof of the mine while the
drum advances through the coal. Chain conveyors then move the
loosened coal to a standard underground mine conveyor system for
delivery to the surface. Continuous miners are used to develop
access to long rectangular blocks of coal that are then mined
with longwall equipment, allowing controlled subsidence behind
the advancing longwall machinery. Longwall mining is highly
productive and most effective for large blocks of medium to
thick coal seams.
Coal
Preparation Plants
Magnum’s preparation plants are modern heavy media plants
that generally have both coarse and fine coal cleaning circuits.
These preparation plants upgrade the quality and heat value of
Magnum’s coal by removing or reducing sulfur and
ash-producing materials from the raw coal. Coal of various
sulfur and ash contents can often be mixed or blended at a
preparation plant or loadout facility to meet the specific
combustion and environmental needs of Magnum’s customers.
From the loadout facilities, Magnum ships its
coal to customers via rail, truck or barge. Once the coal is
loaded onto rail, truck or barge, Magnum’s customer is
typically responsible for the freight costs to the ultimate
destination as is customary in the industry.
Magnum acquired these plants as part of Magnum’s
acquisition from Arch of the Magnum acquired properties and the
subsequent contribution by ArcLight I and Timothy Elliott of the
Magnum contributed properties. Magnum employs preventive
maintenance and rebuild programs to ensure that equipment is
modern and well maintained. The table below provides summary
information for each of Magnum’s preparation plants.
Preparation Plant
Mining Complex
Year First Operated
Year of Last Upgrade
Owned/Leased
Coal Clean
Panther
1996
2005
Owned
Pond Fork
Jupiter
1970
2008
Owned
Weatherby
Remington
1998
2004
Owned
Fanco
Apogee
1994
2005
Owned
Rensford
Campbell’s Creek
1982
2007
Owned
Tom’s Fork
Samples
1994
2007
Owned
Beth Station
Hobet
1979
2006
Owned
Magnum
Coal Reserves
In 2005, 2006, 2007 and 2008, Weir conducted independent audits
of the proven and probable reserves at each of Magnum’s
reserve areas. The coal reserve audits conducted by Weir were
planned and performed to obtain reasonable assurance of the
proven and probable reserves at each of Magnum’s operating
locations. In connection with the audits, Weir reviewed various
reserve and mine progress maps and had certified professional
geologists audit the estimates using standards accepted by
government and industry. Based on management’s estimates
and the Weir report, Magnum’s proven and probable reserves
as of January 1, 2008 were 606.6 million tons,
including 413.9 million tons of proven reserves and
192.7 million tons of probable reserves.
Coal reserve estimates are based on geologic data assembled and
analyzed by geologists and engineers. Reserve estimates are
periodically updated to reflect past coal production, new
drilling information and other geologic or mining data.
Acquisitions or sales of coal properties will also change the
reserve base. Changes in mining methods may increase or decrease
the recovery basis for a coal seam as will plant processing
productivity. Actual volumes of coal produced from the
controlled reserves may vary substantially from the overall
reserve estimates. Estimated minimum recoverable reserves are
comprised of coal that is considered to be merchantable and
economically recoverable by using mining practices and
techniques prevalent in the coal industry at the time of the
reserve study, based upon then-current prevailing market prices
for coal. Magnum uses the mining method that it believes will be
most profitable with respect to particular reserves. See
“Business of Patriot — Coal Reserves”for further explanation of guidelines and methodology for
estimating proven and probable reserves.
The following table provides a summary of Magnum’s
operating and other information regarding each of its mining
complexes or reserve properties as of January 1, 2008:
The Panther mining complex consists of one underground mine
located in Kanawha County and Boone County, West Virginia. As of
January 1, 2008, the Panther mining complex had proven and
probable reserves of 70.3 million tons. In 2007, Magnum
sold 1.8 million tons of coal produced at this complex. As
of January 1, 2008, Magnum’s proven and probable
reserves at the Panther mining complex had an average heat value
of 13,523 Btu per pound and an average sulfur content of 0.96%.
Coal produced at the Panther mining complex may be sold as a
metallurgical or steam product. Coal is produced from the Eagle
seam, with an average mining thickness of five and three quarter
feet.
Magnum utilizes the
room-and-pillar
continuous mining and longwall mining methods at the Panther
mining complex. The Panther complex longwall mining system
requires a mining cavity that is at least 68 inches high in
order to accommodate the height of the longwall face equipment.
Coal from the Panther complex is processed through an
on-site
preparation plant with a capacity of 1,200 run-of-mine tons per
hour, which we refer to as ROM tons per hour. The raw feed
bypass feature of this
facility enables Magnum to produce a wide range of products,
allowing Magnum flexibility to react to potential customer
demands. After processing, Magnum loads the coal into trucks
that are owned and operated by third party contractors for
transportation to a barge loading facility on the Kanawha River
located less than ten miles from the Panther mining complex. At
the loadout facility, the coal is loaded onto barges for
transportation to customers. Panther also has access pursuant to
certain contractual rights to the nearby CSX loadout at the
Samples mining complex that is less than ten miles from the
Panther mining complex. Magnum has the storage capacity to
stockpile significant amounts of raw coal inventory
on-site at
the Panther mining complex in order to maintain continuous
shipments to customers.
The Panther mine has encountered difficult geologic conditions
from time to time since the fourth quarter of 2005 (sandstone
extrusions on the longwall face and the floor below the coal
seam resulting in hard cutting) that adversely impacted
production in late 2005 and in 2006 and 2007. In order to help
identify the areas of potential hard cutting, Magnum’s
engineering staff has developed and maintained updated mining
height isopach maps. The isopach maps depict the mining height
using data generated from the continuous mining activities of
the longwall panel development. Magnum uses this mapping to
identify areas where the continuous mining development
experienced a reduction in cavity height as a result of hard
cutting thereby identifying the areas of the longwall panel that
have the potential for hard cutting and reduced production. This
process has helped increase Magnum’s ability to predict
potential hard cutting conditions. Magnum recently upgraded
selected equipment and operational infrastructure at Panther,
and has implemented a more aggressive preventative maintenance
program, including adding experienced electrical/maintenance
personnel, which management expects will significantly reduce
mechanical downtime in the future.
Remington
Mining Complex
The Remington mining complex consists of two underground mines
and one surface mine located in Kanawha County and Boone County,
West Virginia. The Remington mining complex is situated within
the Cabin Creek North reserve area, which as of January 1,2008, had proven and probable reserves in the aggregate of
78.6 million tons. In 2007, Magnum sold 1.4 million
tons of coal produced at this complex. As of January 1,2008, Magnum’s proven and probable reserves at the Cabin
Creek North reserve area had an average heat value of 12,448 Btu
per pound and an average sulfur content of 0.80%. Coal is
sourced from two underground mines and one surface mine. The two
underground mines operate in the Coalburg seam. The Stockburg
No. 2 mine has an average mining thickness of six feet and
the Deskins mine has an average mining thickness of six and one
half feet. The Wildcat surface mine operates in the Kittanning,
Clarion, Stockton and Coalburg seams, with a 15-to-1 average
overburden to coal ratio.
Magnum utilizes the
room-and-pillar
continuous mining method at the Remington underground mines. The
surface mining operation consists of a single loader spread
utilizing the contour mining method, and a highwall miner.
Magnum processes coal produced at the Remington mining complex
through an
on-site
preparation plant with a capacity of 600 ROM tons per hour.
After processing, Magnum loads the coal onto trucks, which are
owned and operated by third party contractors, for
transportation to a barge loading site on the Kanawha River
within 10 miles of the Remington mining complex. At the
loading dock, coal is loaded onto barges for transportation to
Magnum’s customers. Remington also has access pursuant to
certain contractual rights to the nearby CSX loadout at the
Samples complex situated within 10 miles of the Remington
mining complex.
Jupiter
Mining Complex
The Jupiter mining complex consists of one underground mine
located in Boone County, West Virginia. The Jupiter mining
complex is situated within the Pond Fork reserve area, which as
of January 1, 2008, had proven and probable reserves in the
aggregate of 22.2 million tons. In 2007, Magnum sold
1.5 million tons of coal produced at this complex. As of
January 1, 2008, Magnum’s proven and probable reserves
at the Pond Fork reserve area had an average heat value of
12,702 Btu per pound and an average sulfur content of 0.82%.
Coal is sourced from the Coalburg seam, with an average mining
thickness of nine feet.
Magnum utilizes the
room-and-pillar
continuous mining method at the underground mine at Jupiter.
Magnum processes coal produced at this complex through an
on-site
preparation plant. This plant has a capacity of 750 ROM tons per
hour. After the coal is processed, Magnum transfers it to a CSX
rail loadout facility that is located at the preparation plant,
and the coal is shipped to its customers via CSX rail.
Apogee
Mining Complex
The Apogee mining complex consists of one surface mine located
in Logan County, West Virginia. The Apogee mining complex is
situated within the Logan County reserve area, which as of
January 1, 2008, had proven and probable reserves in the
aggregate of 52.1 million tons. In 2007, Magnum sold
3.0 million tons of coal from this complex, of which
2.9 million tons were produced at captive operations at the
Apogee mining complex and 0.1 million ton was purchased
from third parties that were onsold by Magnum. As of
January 1, 2008, Magnum’s proven and probable reserves
at the Logan County mining reserve area had an average heat
value of 12,758 Btu per pound and an average sulfur content of
0.78%. Coal is sourced from the Freeport, Kittanning, Stockton
and Coalburg seams, with a 15-to-1 average overburden to coal
ratio.
Magnum utilizes the
truck-and-shovel/loader
mining method at its Apogee mining complex. Magnum transfers
coal produced at this complex by truck to its
on-site
preparation plant and loadout facility. This preparation plant
has a capacity of 650 ROM tons per hour. Coal is transported
from the loadout facility to its customers by CSX rail.
Campbell’s
Creek Mining Complex
The Campbell’s Creek mining complex consists of two
underground mines located in Kanawha County, West Virginia. As
of January 1, 2008, the Campbell’s Creek mining
complex had proven and probable reserves in the aggregate of
10.1 million tons. In 2007, Magnum sold 0.9 million
tons of coal produced at this complex. As of January 1,2008, the proven and probable reserves at the Campbell’s
Creek mining complex had an average heat value of 12,240 Btu per
pound and an average sulfur content of 0.82%. Coal is sourced
from two underground mines. The Campbell’s Creek No. 7
mine operates in the Winifrede seam, with an average mining
thickness of seven and one half feet. The Campbell’s Creek
No. 6 mine is a contract mine in the Stockton seam, and has
an average mining thickness of six and one half feet.
Magnum utilizes the
room-and-pillar
continuous mining method at the Campbell’s Creek mining
complex. The raw coal produced at this complex is trucked
off-highway by a third party contractor to the
on-site
preparation plant. This preparation plant has a processing
capacity of 400 ROM tons per hour. After processing, the coal is
transported by truck to the Kanawha River for loading onto
barges that deliver the coal to customers.
Samples
Mining Complex
The Samples mining complex consists of one surface mine located
primarily in Kanawha County, West Virginia. The Samples mining
complex is situated within the Cabin Creek South reserve area,
which as of January 1, 2008, had proven and probable
reserves in the aggregate of 52.2 million tons. In 2007,
Magnum sold 3.3 million tons of coal produced at this
complex. As of January 1, 2008, the proven and probable
reserves at the Cabin Creek South reserve area had an average
heat value of 13,439 Btu per pound and an average sulfur content
of 1.15%. Coal is sourced from the Freeport, Kittanning,
Stockton and Coalburg seams, with a 16.5-to-1 average overburden
to coal ratio.
Magnum currently utilizes
truck-and-shovel/loader
and highwall mining at the Samples mining complex. Raw coal
produced at this complex is trucked to Magnum’s
on-site
preparation plant and loadout facility at Tom’s Fork. This
preparation plant has a capacity of 650 ROM tons per hour. After
processing, coal is transported from the loadout facility to
Magnum’s customers by CSX rail or coal can also be trucked
approximately 14 miles to the Kanawha River and transported
by barge.
The Hobet mining complex consists of a surface mine located in
Boone County and Lincoln County, West Virginia. The Hobet mining
complex is situated within the Lincoln/Boone reserve area, which
as of January 1, 2008, had proven and probable reserves in
the aggregate of 220.0 million tons. In 2007, Magnum sold
4.1 million tons of coal produced at this complex. As of
January 1, 2008, Magnum’s proven and probable reserves
at the Lincoln/Boone reserve area had an average heat value of
12,661 Btu per pound and an average sulfur content of 1.13%.
Coal is sourced from the Freeport, Kittanning, Stockton and
Coalburg seams, with a 16-to-1 average overburden to coal ratio.
Magnum utilizes
truck-and-shovel/loader
and dragline mining at the Hobet mining complex. Magnum
transfers coal produced at this complex by belt to its
on-site
preparation plant and loadout facility. This preparation plant
has a capacity of 1,400 ROM tons per hour. After processing, the
coal is transported to Magnum’s customers by CSX rail.
Winchester
Mine
The Winchester mine is a two-section underground mine located
primarily in Kanawha County, West Virginia. The Winchester mine
is situated within the Cabin Creek South reserve area, which as
of January 1, 2008, had proven and probable reserves in the
aggregate of 52.2 million tons. Magnum commenced production
at this mine in early 2008. Coal is sourced from the Hernshaw
seam, with an average mining thickness of six and one half feet.
The Winchester mine currently utilizes
room-and-pillar
continuous mining. Magnum currently expects to spend a total of
approximately $30 million in capital expenditures in 2008
through 2011 in connection with developing these reserves and
currently expects Winchester to produce nearly 1 million
tons per year. Coal produced at this mine can be sold in both
the steam and metallurgic coal markets. Coal from Winchester is
processed at the Tom’s Fork preparation plant and loaded
onto rail cars and transported to Magnum’s customers by CSX
rail.
New
Development Opportunities
Included in Magnum’s sizable reserve base are large
undeveloped reserve blocks adjacent or close to Magnum’s
existing mining operations. One of Magnum’s largest
undeveloped reserve opportunities is the Blue Creek reserve.
Magnum has two organic growth projects that consist of the
development of Blue Creek and the dragline redeployment on the
LRPB reserve at Remington.
Blue
Creek Reserves
Magnum holds a long-term lease on coal reserves at Blue Creek,
which is located in Kanawha County and Clay County, West
Virginia. As of January 1, 2008, the Blue Creek property
had proven and probable reserves of 81.4 million tons. At
present, there are no mining operations at Blue Creek, but
Magnum has commenced the development of such operations. Total
capital expenditures required for this project are currently
estimated to be approximately $65 million between 2008 and
2010. The Blue Creek project is planned to consist of two
underground mines in the Stockton seam utilizing
room-and-pillar
continuous mining methods and a third-party-owned
on-site
preparation facility with a processing capacity of 950 ROM tons
per hour. Production is scheduled to commence in 2009 and reach
full production levels in 2010. At full capacity, Magnum expects
the operation at Blue Creek to produce approximately
2.0 million tons per year.
Dragline
Redeployment
The highly efficient dragline at Samples was idled in mid-2007
and will be idle until 2011, at which time it will be
refurbished in advance of being moved onto the Remington
property where it is expected to commence operations in 2012.
Magnum currently expects this development to result in
additional annual production at Remington of approximately
2.6 million tons, as well as an improvement in its cost
structure.
Magnum currently expects to spend a total of approximately
$85 million in capital expenditures in connection with this
project between 2009 and 2011.
Coal
Leases
Most of Magnum’s coal reserves are leased or subleased from
private landowners. As of January 1, 2008,
570.9 million tons of Magnum’s proven and probable
reserves were leased or subleased. After the commercially
recoverable reserves are depleted, the leases typically expire.
The leases are typically subject to readjustment or extension.
The majority of the leases covering virtually all of
Magnum’s proven and probable reserves are not scheduled to
expire prior to expiration of Magnum’s projected mining
activities. Most of the leases convey mining rights to Magnum in
exchange for a percentage of gross sales in the form of a
royalty payment to the lessor, subject to certain minimum
payments.
Transportation
Magnum ships coal to customers via barge, rail and truck. Magnum
typically pays the transportation costs and in certain
instances, transloading fees, to deliver the coal to the barge,
rail, or truck loadout facility, where the coal is then loaded
for final delivery. Once the coal is loaded onto the barge or
rail, Magnum’s customers are typically responsible for the
freight costs to the ultimate destination. Magnum is able to
minimize transportation costs through the strategic location of
its mines near the Kanawha River for barge transportation and
proximity to CSX rail lines for rail transportation.
Transportation costs borne by the customer vary greatly based
primarily on each customer’s proximity to the mine and, to
a lesser extent, Magnum’s proximity to the loadout
facilities.
Magnum owns a barge loadout facility on the Kanawha River known
as Little Creek Dock that can be used for shipping coal produced
at the Panther, Remington, Samples and Campbell’s Creek
mining complexes, as well as for throughput of purchased coal.
Magnum also collects fees for the use of Little Creek Dock by
third parties who need access to the Kanawha River in order to
load their coal onto river barges.
Suppliers
The main types of goods Magnum purchases are mining equipment
and replacement parts, steel-related (including roof control)
products, belting products, fuel and lubricants. Although Magnum
has many long, well-established relationships with its key
suppliers, it does not believe that it is dependent on any of
its individual suppliers other than for purchases of certain
surface and underground mining equipment. The supplier base
providing mining materials has been relatively consistent in
recent years, although there has been some consolidation.
Purchases of certain surface and underground mining equipment
are concentrated with one principal supplier; however, supplier
competition continues to develop.
Sales,
Marketing and Customers
Magnum has traditionally sold most of its coal as steam coal to
U.S. electric utilities for use in generating electricity.
Magnum has also sold steam coal to industrial plants. In late
2007, Magnum started selling metallurgical coal with shipments
commencing in January 2008. Magnum projects its metallurgical
coal sales volume to increase from 1.6 million tons in 2008
to 2.6 million tons in 2010. The sale of coal for ultimate
use in the steam market accounted for virtually all of
Magnum’s revenue in 2007.
In 2007, Magnum’s top 10 customers accounted for 95% of its
coal volume. The three customers that each accounted for 10% or
more of its 2007 coal volume were American Electric Power (43%
of 2007 volume), Progress Fuels Corporation (15% of 2007 volume)
and The Dayton Power and Light Company (13% of 2007 volume).
Magnum’s marketing and sales force, principally based at
Magnum’s Charleston, West Virginia headquarters, handles
the sales, distribution/traffic management, market research,
risk/credit management, and
contract and general administration functions of its business.
Magnum’s sales staff has long-standing relationships with a
large number of customers and has developed close working
relationships with individual buying personnel at many of its
large customers.
Magnum has the ability to serve a diverse base of customers by
offering steam coal with varying qualities of heat content,
sulfur, ash and other characteristics required by Magnum’s
customers. Magnum’s customer base consists principally of
electric utilities. Most of its large customers are
well-established electric utilities, and have been purchasing
coal from Magnum’s mines for a number of years.
Customer
and Backlog
Magnum enters into long-term (exceeding 12 months in
duration) and short-term (less than 12 months in duration)
coal supply contracts with many of its customers. Magnum’s
coal supply contracts typically stipulate a fixed volume of coal
to be delivered at a specific price. These arrangements allow
customers to secure a reliable and regular supply of coal and
provide Magnum with greater predictability of sales volume and
sales prices. As of March 31, 2008, approximately 96%, 65%
and 32% of Magnum’s expected coal production in 2008, 2009
and 2010, respectively, was committed and priced under existing
sales contracts. As current contracts with historical pricing
terms come up for renewal, Magnum intends to renew these
contracts at then prevailing market prices. Magnum also intends
to enter into new contracts to sell its currently uncommitted
coal production at then prevailing market prices.
Quality and volumes for the coal are stipulated in coal supply
agreements, and in some instances buyers have the option to vary
annual or monthly volumes. Most of Magnum’s coal supply
agreements contain provisions requiring it to deliver coal
within certain ranges for specific coal characteristics such as
heat value, sulfur, ash, hardness and ash fusion temperature.
Failure to meet these specifications can result in economic
penalties, suspension or cancellation of shipments or
termination of the contracts. Within the specifications, price
adjustments are typically made based on the actual quality of
the coal delivered. Heat value and sulfur content are the two
principal characteristics that result in price adjustments.
As of March 31, 2008, Magnum had a sales backlog of
50.8 million tons of coal, including backlog subject to
price reopener
and/or
extension provisions, and its coal supply agreements have
remaining terms up to ten years and an average volume weighted
remaining term of approximately 4.4 years.
Competition
The coal industry is highly competitive. The most important
factors on which Magnum competes are coal quality,
transportation costs, and the reliability of supply.
Magnum’s principal publicly-traded Central Appalachian
competitors include Alpha Natural Resources, Inc., International
Coal Group, Inc., James River Coal Company and Massey Energy
Company. Magnum also competes directly with all other Central
Appalachian coal producers.
As Central Appalachian coal has increased in price, certain of
Magnum’s customers have begun to purchase coal from other
sources, including coal produced in Northern and Southern
Appalachia, the Western United States and the Interior United
States, and foreign countries such as Colombia and Venezuela. If
this trend continues, then Magnum may also compete with
companies that produce coal from one or more of these other
regions or countries.
Employee
and Labor Relations
As of December 31, 2007, Magnum employed
1,722 persons. Employees at the Hobet and Apogee mining
complexes are members of the UMWA. Magnum, or certain companies
that supply Magnum with labor, have signed either the national
UMWA contract or memoranda of understanding with the UMWA.
Employees at the Panther, Jupiter, Remington, Samples,
Campbell’s Creek and Winchester operations are not
affiliated with any union. As of December 31, 2007,
approximately 30% of Magnum’s labor force was unionized.
In December 2006, the UMWA announced it had completed the
negotiation with the Bituminous Coal Operators Association for a
new five year collective bargaining agreement (the 2007 National
Agreement). The 2007 National Agreement provides for a $4.00 per
hour wage increase over the 5 year term, a $1,000 signing
bonus paid immediately, increased pension benefits, increased
pension plan contributions and preservation of full health care
benefits for active and retired employees. The memorandum of
understanding between the UMWA and Apogee Coal, which covers
workers at the Apogee mining complex, was initially scheduled to
expire at the end of 2007 but was extended unilaterally by
Apogee until June 30, 2008.
Magnum’s management believes that its relations with all
employees are good. Magnum offers an incentive program for
certain of its employees under which workers are paid additional
amounts once certain performance metrics are achieved.
Magnum’s management believes that this program enhances
both employee morale and mine productivity.
Regulatory
Matters
Federal and state authorities regulate the U.S. coal mining
industry with respect to matters such as employee health and
safety, permitting and licensing requirements, the protection of
the environment, plants and wildlife, the reclamation and
restoration of mining properties after mining has been
completed, surface subsidence from underground mining and the
effects of mining on groundwater quality and availability. In
addition, the industry is affected by significant legislation
mandating certain benefits for current and retired coal miners.
Magnum has in the past, and will in the future, be required to
incur significant costs to comply with these laws and
regulations.
Future legislation and regulations are expected to become
increasingly restrictive, and there may be more rigorous
enforcement of existing and future laws and regulations.
Depending on the development of future laws and regulations,
Magnum may experience substantial increases in equipment and
operating costs and may experience delays, interruptions or
termination of operations.
Failure to comply with these laws and regulations may result in
the assessment of administrative, civil and criminal fines or
penalties, the acceleration of cleanup and site restoration
costs, the issuance of injunctions to limit or cease operations
and the suspension or revocation of permits and other
enforcement measures that could have the effect of limiting
production from Magnum’s operations.
Mine
Safety and Health and Black Lung
The Mine Improvement and New Emergency Response Act of 2006,
also known as the MINER Act, was signed into law on
June 15, 2006. This legislation amends the Mine Safety and
Health Act of 1977. The MINER Act requires the implementation of
a number of mandates and suggested “best practices”
including improved emergency supplies of breathable air and
shelters that contain sufficient quantities of post-accident
breathable air to maintain trapped miners. Management estimates
that the capital costs for compliance will be
approximately $3 to 4 million annually in 2008 and 2009.
Ongoing operating costs to sustain compliance are estimated to
be no more than $1 million annually.
Magnum is committed to the continued strengthening of its mine
safety programs, in accordance with the MINER Act. Magnum has
successfully limited the incidence of accidents at most of its
mining complexes. In 2007, the average lost time accident rate
for Magnum’s mining complexes was below the national
average as recorded by MSHA. In recognition of its safety
performance, Magnum has received several accolades and awards
highlighting its commitment to mine safety. Magnum has recently
received several awards noting its safety performance.
Magnum’s recent safety awards include the Mountaineer
Guardian Award from the West Virginia Office of Miners’
Health, Safety & Training in 2004 through 2007, the
West Virginia Holmes Safety Associations Safety Awards at both
the state and regional levels for 2004 through 2006 and the
U.S. Department of Labor’s Mine Safety and Health
Administration’s West Virginia Pace Setter Award in 2005
and 2006.
For a more detailed discussion of the mining, health and safety
laws that are applicable to Magnum by virtue of being an
industry participant, as Patriot is, see generally the sections
captioned “Business of Patriot — Regulatory
Matters — Mine, Safety and Health” and
“Business of Patriot — Regulatory
Matters — Black Lung”.
Environmental
Laws
Magnum is subject to various federal and state environmental
laws and regulations that impose significant requirements on its
operations. The cost of complying with current and future
environmental laws and regulations and Magnum’s liabilities
arising from past or future releases of, or exposure to,
hazardous substances, may adversely affect Magnum’s
business, results of operations or financial condition. In
addition, environmental laws and regulations, particularly those
relating to air emissions, can reduce the demand for coal.
Significant public opposition has been raised with respect to
the proposed construction of certain new coal-fired electricity
generating plants due to the potential air emissions that would
result. Such regulation and opposition could reduce the demand
for coal.
Numerous federal and state governmental permits and approvals
are required for mining operations. When Magnum applies for
these permits or approvals, it may be required to prepare and
present to federal or state authorities data pertaining to the
effect or impact that a proposed exploration for, or production
or processing of, coal may have on the environment. Compliance
with these requirements could prove costly and time-consuming
and could delay commencing or continuing exploration or
production operations. A failure to obtain or comply with
permits could result in significant fines and penalties and
could adversely effect the issuance of other permits for which
Magnum or a related entity may apply.
Readers are directed to the section captioned “Business
of Patriot — Environmental Laws” under which
certain key environmental matters, laws and regulations facing
Patriot are discussed, because such environmental issues, laws
and regulations are also applicable to Magnum by virtue of being
an industry participant, as Patriot is.
Legal
Proceedings
From time to time, Magnum is involved in legal proceedings
arising in the ordinary course of business. Magnum’s
management believes it is indemnified for these liabilities by
third parties or otherwise covered by insurance and that, other
than set forth below, there is no individual case or group of
related cases pending that is likely to have a material adverse
effect on Magnum’s financial condition, results of
operations or cash flows.
West
Virginia Flood Litigation
2001
Flood Litigation
Arch Coal and certain of its subsidiaries, including Ark Land
Company, and one of Magnum’s subsidiaries, Catenary, have
been named as defendants, along with various other property
owners, coal
companies, timbering companies and oil and natural companies, in
connection with alleged damages arising from flooding that
occurred on July 8, 2001 in various watersheds primarily
located in southern West Virginia (referred to in this proxy
statement/prospectus as the 2001 flood litigation). The
plaintiffs have asserted that timbering, coal mining and the
construction of haul roads caused natural surface waters to be
diverted in an unnatural way causing damage to the plaintiffs.
Pursuant to orders from the West Virginia Supreme Court of
Appeals, the cases are being handled as mass litigation, and a
panel of three judges was appointed to handle the matters that
have been divided between the judges pursuant to the various
watersheds.
One of the cases, in the Upper Guyandotte River watershed, went
to trial against two defendants, both of which were land holding
companies, to determine whether the plaintiffs could establish
liability. The jury found in favor of the plaintiffs, but the
judge in this matter recently set aside the verdict stating he
committed reversible error by allowing certain testimony of the
plaintiffs’ experts. The judge went on to address the core
foundation necessary to prevail in the flood litigation in his
order which is whether the plaintiffs can scientifically
establish that a certain flood event caused
and/or
contributed to injury and, if so, who caused the injury and what
persons were injured by such conduct. An appeal of this order
has been filed with the West Virginia Supreme Court of Appeals.
In the Coal River watershed of the 2001 flood litigation,
another judge in the panel provided ample opportunity for the
plaintiffs to amend their complaints to more specifically
identify, among other things, the defendants’ specific
injury-causing conduct, and the amount of damages sustained by
each plaintiff. The plaintiffs were unable to meet the pleading
standard announced by the judge and in January 2007, the judge
entered an order that granted defendants’ motions to
dismiss with prejudice. An appeal of this order has been filed
with the West Virginia Supreme Court of Appeals.
In the event the 2001 flood litigation continues or the Orders
as described above are reversed by the West Virginia Supreme
Court of Appeals, pursuant to the Arch purchase and sale
agreement, Arch Coal indemnifies Magnum against claims arising
from certain pending litigation proceedings, including the 2001
flood litigation, which obligation will continue indefinitely.
The failure of Arch Coal to satisfy its indemnification
obligations could have a material adverse effect on Magnum.
2004
Flood Litigation
In 2006, Hobet and Catenary, two of Magnum’s subsidiaries,
were named as defendants along with various other property
owners, coal companies, timbering companies and oil and natural
companies, arising from flooding that occurred on May 30,2004 in various watersheds primarily located in southern West
Virginia (referred to in this proxy statement/prospectus as the
2004 flood litigation). This litigation is pending before two
different judges in the Circuit Court of Logan County, West
Virginia.
In the first action, the plaintiffs have asserted that
(i) Hobet failed to maintain an approved drainage control
system for a pond on land on, near,
and/or
contiguous to the situs of flooding; and (ii) Hobet
participated in the development of plans to grade, blast, and
alter the land on, near,
and/or
contiguous to the situs of the flooding. Hobet has filed a
motion to dismiss both claims based upon the assertion that
insufficient facts have been stated to support the claims of the
plaintiffs.
In the second action, on behalf of Catenary and Hobet, motions
to dismiss have been filed, asserting that the allegations
asserted by the plaintiffs are conclusory in nature and likely
deficient as a matter of law. Most of the other defendants also
filed motions to dismiss. Both actions have been stayed pending
a ruling from the West Virginia Supreme Court of Appeals in the
2001 flood litigation.
In the event the 2004 flood litigation continues and is not
dismissed, Magnum would assert any indemnification rights it has
under the Arch purchase and sale agreement against Arch Coal.
However, the successful assertion of third party claims in
excess of the indemnification liability cap of $75 million
in the Arch purchase and sale agreement, or the failure of Arch
Coal to satisfy its indemnification obligations to Magnum as to
which, in either case, no assurances can be given, could have an
adverse effect on Magnum.
As is the case with other coal mining companies, Magnum often
needs to construct fills and impoundments in channels that may
constitute “waters of the United States,” as defined
under the Clean Water Act (CWA). To do so lawfully, it must, in
the normal course of its mining operations, obtain permits
pursuant to Section 404 of the CWA. The ACOE issues two
types of permits pursuant to Section 404 of the CWA:
general (or “nationwide”) and “individual”
permits. Magnum often applies for authorizations pursuant to
(i) Nationwide Permit 21, which is issued by the ACOE in
relation to surface coal mining operations; (ii) Nationwide
Permit 50, which is issued by the ACOE in relation to
underground coal mining; and (iii) Nationwide Permit 49,
which is issued by the ACOE in relation to Magnum’s
remaining operations. Large surface coal mining operations are
applied for as individual permits.
During the last few years, lawsuits challenging the ACOE’s
authority generally to issue nationwide and individual permits
to various companies have been instituted by certain
environmental groups and, in some instances, environmental
groups have also sought to enjoin the use of specific permits
issued by the ACOE. Two such cases that remain pending or on
appellate review are Ohio Valley Environmental
Coalition v. Colonel Dana Hurst, U.S. Army Corp of
Engineers, Civil Action
No. No. 3:03-2281
(S.D. W.Va.) and Ohio Valley Environmental Coalition v.
U.S. Army Corps of Engineers, Civil Action
No. 3:05-0784
(S.D. W.Va.). To date, these challenges have not survived
appellate review, but there have been some lower court decisions
in favor of the environmental groups. In March 2007, in one such
lawsuit, the District Court for the Southern District of West
Virginia rescinded individual permits issued to one of
Magnum’s competitors in the coal industry, and that
decision currently is under appeal. In another case filed
against the ACOE involving nationwide permits, a claimant filed
a motion for preliminary injunction to enjoin the use of a
permit that had already been issued by the ACOE to Apogee, a
subsidiary of Magnum; however, on May 23, 2007, the claimant
agreed to withdraw its motion for preliminary injunction and
mining under the permit has proceeded. On October 11, 2007,
the United States District Court of the Southern District of
West Virginia in the matter of Ohio Valley Environmental
Coalition, et al., v. United States Army Corps of
Engineers, et al., Civil Action
No. 03:05-0784
issued a Memorandum Opinion and Order which granted a temporary
restraining order and preliminary injunction against the
Callisto Surface Mine of Jupiter whereby the ACOE was enjoined
from granting a valley fill permit to the Callisto Surface Mine,
which resulted in Jupiter ceasing mining activities at the
Callisto Surface Mine.
There can be no guarantee that similar claims or motions will
not be filed, or that future judicial rulings will not interfere
with the ACOE’s authorization to issue permits pursuant to
the CWA or will not enjoin the use of any permits issued by the
ACOE. If mining methods are limited or prohibited as a result of
future judicial rulings, it could significantly increase
Magnum’s operational costs, and make it more difficult to
economically recover a significant portion of its reserves and
have a material adverse effect on Magnum’s financial
condition and results of operations. Magnum may not be able to
increase the price it charges for coal to cover higher
production costs without reducing customer demand for
Magnum’s coal.
Selenium
Litigation
In 2007, Magnum was sued in state court in Boone County, West
Virginia, by the WVDEP. In 2007 and 2008, Magnum was sued in the
U.S. District Court for the Southern District of West
Virginia by OVEC and another environmental group (pursuant to
citizen suit provisions), which we refer to as the Federal OVEC
Case. The lawsuits each allege that Magnum has violated certain
water discharge limits set forth in a number of its National
Pollutant Discharge Elimination System permits. The lawsuits are
seeking fines and penalties as well as injunctions prohibiting
Magnum from further violating laws and its permits.
Some of the alleged violations relate to exceedances of
selenium. There is currently no reasonably available technology
that has been proven to effectively address selenium exceedances
in permitted water discharges, and as a result the WVDEP
deferred the obligations (of Magnum and other companies) to
comply with the current selenium discharge limit obligations in
those permits. However, many of those deferrals are themselves
the subject of an administrative appeal and other challenges by
environmental groups. On May 28, 2008 the judge in the
Federal OVEC Case determined that the attempted deferral of the
selenium discharge
limits set forth in one Apogee permit failed to meet certain
procedural requirements, and as a result has ordered Apogee to
develop a treatment plan within thirty days, and to implement
that plan within ninety days or to show cause of its inability
to do so. Magnum is actively engaged in studying potential
solutions to controlling selenium discharges, and has submitted
a proposed treatment plan to the WVDEP in March of 2008 and is
awaiting WVDEP’s final approval.
The federal EPA is currently considering revisions to the
selenium standards that would increase the permissible levels.
However, there can be no assurance that the standards will be
changed.
In addition, the EPA has recently issued a request for
information to Magnum which seeks extensive information
regarding its water discharges, and may in the future institute
a regulatory proceeding that could ultimately seek similar or
additional remedies to those requested by the lawsuits described
above.
As a result of the litigation, the process of applying for new
permits has become more time-consuming and complex, the review
and approval process is taking longer, and in certain cases new
permits may not be issued. If such litigation is determined
adversely to Magnum, or if Magnum is unable to comply with
enforceable legal requirements or judicial decisions, Magnum
could incur significant and material fines and penalties, could
be required to incur material costs to modify operations, could
potentially be required to shut-down some operations, and could
otherwise be materially adversely affected.
Monsanto
Litigation
Magnum is involved in various legal proceedings that arise in
the ordinary course of its business. Some of the lawsuits seek
damages in very large amounts, or seek to restrict the
company’s business activities. In addition to the lawsuits
described under the section captioned “Business of
Magnum — Legal Proceedings”, Apogee, a subsidiary
of Magnum, has been sued, along with eight other defendants,
including Monsanto Company, Pharmacia Corporation and Akzo Nobel
Chemicals, Inc., by certain plaintiffs in state court in Putnam
County, West Virginia. The lawsuits were filed in October 2007,
but not served on Apogee until February 2008, and each are
identical except for the named plaintiff. They each allege
personal injury occasioned by exposure to dioxin generated by a
plant owned and operated by certain of the other defendants
during production of a chemical, 2,4,5-T, from
1949-1969.
Apogee is alleged to be liable as the successor to the
liabilities of a company that owned and /or controlled a dump
site known as the Manila Creek landfill, which allegedly
received and incinerated dioxin-contaminated waste from the
plant. The lawsuits seek class action certification as well as
compensatory and punitive damages for personal injury. The
ultimate resolution of these lawsuits cannot be determined at
this time, but Magnum will represent its interests vigorously in
all of the proceedings that it is defending or prosecuting. Any
liabilities resulting from such proceedings may be material, and
if ultimately determined adversely to Magnum, could have a
material adverse effect on Magnum.
Potential
Participants in Solicitation
The following executive officers of Magnum may be deemed to be
participants in the solicitation of proxies from the
stockholders of Patriot in connection with the proposed issuance
of Patriot common stock pursuant to the merger agreement:
Paul H.
Vining
President &
Chief Executive Officer of Magnum
Paul H. Vining, age 53, is, and has been since 2006,
Magnum’s President and Chief Executive Officer and also
serves as a member of Magnum’s board of directors. Before
joining Trout (currently a subsidiary of Magnum) as President
and Chief Executive Officer in August 2005, Mr. Vining was
Senior Vice President of Marketing and Trading at Arch Coal, a
position he held since June 2005. Prior to that, from 2002 to
2006, he was President of Ellett Valley CC Inc., a coal trading,
marketing and consulting company based in Williamsburg,
Virginia. From 1999 to 2002, Mr. Vining was Executive Vice
President for Sales and Trading at Peabody Energy. From 1996 to
1999, he was President of Peabody COALTRADE. From 1995 to 1996,
Mr. Vining was Senior Vice President of Peabody COALSALES.
Earlier in his career, he held leadership
positions with Guasare Coal America, Agipcoal USA, Island Creek
Coal and A.T. Massey Coal. Mr. Vining holds a B.S. in
chemistry from the College of William and Mary in Williamsburg,
Virginia, and a B.S. in mineral engineering and an M.S. in
extractive metallurgy from Columbia University’s Henry
Krumb School of Mines in New York.
Richard
H. Verheij
Senior
Vice President, General Counsel and Secretary of
Magnum
Richard H. Verheij, age 49, is Magnum’s Senior Vice
President, General Counsel and Secretary. Before joining Magnum
in January 2006, Mr. Verheij served in various legal,
government relations and public affairs capacities, including
Executive Vice President — External Affairs and
General Counsel, at UST Inc. of Greenwich, Connecticut, a
publicly-traded Fortune 1000 consumer products company focused
on smokeless tobacco and wine (NYSE: UST). Mr. Verheij was
employed by UST from 1986 to 2005. Prior to 1986,
Mr. Verheij was in private practice. Mr. Verheij holds
a J.D. and a B.A. from Case Western Reserve University.
Magnum is one of the largest coal producers in Central
Appalachia based on 2007 production. As of January 1, 2008,
Magnum controlled proven and probable reserves of
606.6 million tons of coal. Based on 2007 production of
16.1 million tons, Magnum’s reserve base could support
similar levels of production for more than 30 years. In
2007, Magnum sold approximately 18.3 million tons of coal
including approximately 2.2 million tons of coal purchased
from third parties. Magnum owns and operates 11 mines, seven
preparation plants and one dock facility located in West
Virginia. Magnum produces, processes and sells bituminous coal
with high heat value and low sulfur content for use in the steam
and metallurgical markets.
The price at which Magnum sells its coal is affected by, among
other items, the supply of and demand for domestic and foreign
coal and the demand for electricity in the United States. See
“Risk Factors Relating to Magnum,” for further
discussion of factors affecting coal prices. Magnum’s coal
revenue is derived from sales contracts with electric utilities,
industrial companies or other customers such as coal producers.
Revenue is recognized and recorded at the time of shipment or
delivery to the customer, at fixed or determinable prices, when
risk of loss has passed in accordance with the terms of the
sales agreement. Typically, risk of loss transfers to the
customers at the mine or port where coal is loaded on the rail,
barge, truck or other transportation source that delivers the
coal to its destination. At March 31, 2008, based on
expected production over the next three years, Magnum estimates
that approximately 0.7 million tons or 4% of production in
2008, 6.5 million tons or 35% of production in 2009, and
13.8 million tons or 68% of production in 2010 is unpriced
and available for sale.
Basis of
Presentation
Management’s Discussion and Analysis of Financial Condition
and Results of Operations of Magnum are presented based on the
historical results of Magnum. Magnum was formed on
October 5, 2005 and acquired various properties from Arch
Coal, including Apogee Coal, Catenary, Hobet, Robin Land and TC
Sales, which we refer to as the Magnum acquired properties, in
exchange for the assumption of certain non-debt postretirement
liabilities on December 31, 2005. On March 21, 2006,
as part of a recapitalization, ArcLight I and Elliott
contributed 100% of their equity interests in Trout, Dakota, and
Elliott-owned labor companies, which we refer to as the Magnum
contributed properties, to Magnum in exchange for a total of
18,181,470 shares of Magnum common stock. For the period
from January 1, 2006 to March 21, 2006, the financial
information for the Magnum contributed properties is not
included in Magnum’s financial results. Magnum’s only
activity for the year ended December 31, 2005 was the
acquisition of the Magnum acquired properties and the payment of
related expenses. The information discussed below relates to
Magnum’s historical results and may not necessarily reflect
what Magnum’s financial position, results of operations and
cash flows will be in the future.
Certain reclassifications have been made to Magnum’s
historical financial results to conform to Patriot’s
definition of Adjusted EBITDA and Segment Adjusted EBITDA as
defined in “Management’s Discussion and Analysis of
Financial Condition and Results of Operations of Patriot”contained in this proxy statement/prospectus.
Magnum’s revenues increased by $14.1 million and
Magnum’s Mining Operations Adjusted EBITDA increased by
$3.0 million in the three months ended March 31, 2008
compared to the prior year, primarily driven by higher average
selling prices, and partially offset by higher costs. During the
first quarter of 2008,
average sales prices increased as compared to the prior year,
reflecting a combination of improved contract pricing and higher
spot prices for coal generally.
Tons
Sold and Revenues
Three Months Ended
March 31,
Increase (Decrease)
2008
2007
Tons/$
%
(Dollars and tons in thousands;
except per ton amounts)
(Unaudited)
Tons sold
4,461
4,576
(115
)
(2.5
)%
Coal sales
$
220,566
$
200,431
$
20,135
10.0
%
Other revenues
10,102
16,112
(6,010
)
(37.3
)%
Total revenue
$
230,668
$
216,543
$
14,125
6.5
%
Average coal sales price per ton sold
$
49.44
$
43.80
$
5.64
12.9
%
Coal sales were higher in the three months ended March 31,2008 compared to the same period in 2007 primarily due to
increased average sales prices driven by an improving coal
market with increasing price for both steam and metallurgical
coal.
Other revenues decreased for the three months ended
March 31, 2008 compared to the same period in 2007. The
decrease is driven by the expiration of synfuel commissions and
by lower freight revenue.
Loss generated from change in market value of interest rate swap
(2,285
)
(257
)
(2,028
)
n/a
Loss from continuing operations
(13,121
)
(28,845
)
15,724
54.5
%
Loss from discontinued operations
—
(2,272
)
2,272
100.0
%
Loss before income taxes
(13,121
)
(31,117
)
17,996
57.8
%
Income tax expense
(1,384
)
—
(1,384
)
n/a
Net loss
$
(14,405
)
$
(31,117
)
$
16,612
53.4
%
Past mining obligations were lower in the three months ended
March 31, 2008 than the same period in 2007 due to
actuarial gain recognition for the three months ended
March 31, 2008. A portion of the actuarial gain is due to
the increase in discount rate at December 31, 2007 compared
to the December 31, 2006 discount rate.
Selling and administrative expenses increased for the three
months ended March 31, 2008 compared to the same period in
2007 due to fees for the Patriot transaction and an increase in
the fair value of stock
compensation expense for the three months ended March 31,2008, offset by additional professional fees for the three
months ended March 31, 2007.
The gain on coal sales supply contract restructuring for the
three months ended March 31, 2008 resulted from Magnum
restructuring a below-market sales contract to reduce future
shipments in exchange for a discounted price on tons remaining
to be shipped, The restructuring was completed in the second
quarter of 2007.
Sales contract accretion (amortization) increased for the three
months ended March 31, 2008 compared to 2007. In 2007,
Magnum was amortizing amounts related to contracts that were
restructured in 2006. The costs associated with the restructured
contracts were fully amortized in 2007 and offset the accretion
for the below-market sales contracts. The accretion in 2008
relates only to below-market sales contracts.
Depreciation, depletion and amortization increased slightly in
the three months ended March 31, 2008 compared to 2007 due
to depletion on new mining sections.
Asset retirement obligation expense increased in the three
months ended March 31, 2008 primarily due to additional
mines being opened in late 2007 and the first quarter of 2008.
Interest expense for the first quarter of 2008 increased
compared with the first quarter of 2007 due to an increased
level of average indebtedness outstanding under Magnum’s
credit facility and additional capital leases outstanding.
The interest income decrease for the first quarter of 2008
compared to the same period in 2007 was driven by lower cash
balances available for investment.
Costs associated with credit facility amendment for the first
quarter of 2008 relate to the write off of a portion of the
deferred financing costs in connection with the prepayment of
the term loan from the proceeds of the Magnum convertible notes
and the costs associated with the amendment to Magnum’s
credit agreement entered into in the first quarter of 2008.
For the three months ended March 31, 2008, Magnum recorded
a charge related to the change in market value of its interest
rate swap due to a decrease in interest rates from 2007.
For the three months ended March 31, 2008, Magnum
recognized income tax expense of $1.3 million due to a
valuation reserve change.
Magnum’s total revenues were $897.3 million for the
year ended December 31, 2007, reflecting an increase of
$86.5 million compared to the prior year. The increase was
primarily due to higher sales volumes related to the addition of
the Magnum contributed companies and a gain on the exchange of
mining reserves. Mining Operations Adjusted EBITDA decreased
$20.4 million for the year ended December 31, 2007
compared to 2006 primarily due to higher operating costs related
to increased production and increased costs of labor and mining
supplies, partially offset by higher revenues. Net loss
increased by $43.7 million primarily due to the results of
operations discussed above as well as contract restructurings in
2006, discussed below, which resulted in higher contract
amortization in 2007.
Revenues increased for the year ended December 31, 2007
compared to the same period in 2006. The increase is primarily
due to the additional 2.2 million tons sold for the year
ended December 31, 2007, partially offset by a lower
average sales price of $3.21 per ton. The increase of
2.2 million tons sold is partially the result of an
additional 1.1 million tons of purchased coal sold in 2007.
Additionally, in 2006 the Magnum contributed properties produced
approximately 1.1 million tons prior to their combination
with Magnum. The decrease in average sales price in 2007 was
primarily due to more favorable pricing on coal contracts
expiring in 2006 and the overall decline in the Central
Appalachia coal markets in 2007.
Magnum realized a gain on exchange of coal reserves for the year
ended December 31, 2007 related to the exchange of coal
reserves with a third party. Magnum received approximately
3.1 million tons of adjacent coal reserves from a third
party, allowing Magnum to continue mining at an existing mine
site.
Other revenues increased for the year ended December 31,2007 compared to the same period in 2006 primarily due to
increased rental and dock loading income, synfuel income and
billable freight (due to the inclusion of twelve months of
revenue for the Magnum contributed properties in 2007 compared
to nine months in 2006). Due to the loss of synfuel tax
incentives, Magnum will cease production of synfuel in 2008.
Gain (loss) generated from change in market value of interest
rate swap
(1,551
)
748
(2,299
)
n/a
Loss from continuing operations
(117,770
)
(62,248
)
(55,522
)
(89.2
)%
Loss from discontinued operations
(3,787
)
(15,643
)
11,856
75.8
%
Net loss
$
(121,557
)
$
(77,891
)
$
(43,666
)
(56.1
)%
Mining Operations Adjusted EBITDA decreased for the year ended
December 31, 2007 compared to 2006, primarily due to higher
operating costs related to increased production (the Magnum
contributed properties are only included for nine months in
2006, compared to twelve months in 2007) and increased
costs of labor and mining supplies, partially offset by higher
revenues. The increase in operating costs for mining supplies
was driven by higher costs for diesel fuel, explosives, tires
and steel products. Labor costs for the year increased due to a
new labor agreement that went into effect on January 1,2007.
Past mining obligations expense decreased slightly for the year
ended December 31, 2007 as compared to 2006 primarily
related to lower costs associated with multiemployer healthcare
plan obligations.
Selling and administrative expenses increased for the year ended
December 31, 2007 as compared to 2006, resulting from
increased costs associated with the increase in staffing at
Magnum’s corporate office during 2007, increased
stock-based compensation expense, higher legal and professional
fees in 2007, and the inclusion of only nine months of expenses
related to the Magnum contributed properties in 2006 compared to
twelve months in 2007.
Magnum had a gain on coal sales supply contract restructuring
for the year ended December 31, 2007 compared with a loss
for the prior year. The gain resulted from Magnum restructuring
a below market sales contract to reduce future shipments in
exchange for a discounted price on tons remaining to be shipped.
In March 2006, Magnum restructured certain sales contracts with
two of its customers. In exchange for a cash payment, Magnum
repriced the remaining tons to be delivered and made a one-time
payment to eliminate the supply requirement for the other tons.
The loss on coal sales supply contract restructuring represents
the payment made to release Magnum from its requirement to
supply certain tons.
Sales contract amortization increased for the year ended
December 31, 2007 compared to 2006. During 2006, net sales
contract accretion was driven by shipments on below market sales
contracts exceeding the amortization on the contracts that were
restructured in March 2006. In 2007, a full year of amortization
on the restructured contracts was recorded which exceeded the
accretion on the below market sales contracts.
Depreciation, depletion and amortization decreased slightly for
the year ended December 31, 2007 compared to 2006 due to
accelerated depreciation of certain acquired assets in 2006,
partially offset by the inclusion of only nine months of
depreciation related to the Magnum contributed properties in
2006 compared to twelve months in 2007.
Asset retirement obligation expense increased for the year ended
December 31, 2007 compared to the prior year due to
additional mines opening in 2007 which increased valley fill and
reclamation expenses.
Interest expense increased for the year ended December 31,2007 compared to 2006 due to the increased level of average
indebtedness outstanding under Magnum’s credit facility
during 2007. The credit facility was originated in March 2006 in
conjunction with the recapitalization.
The loss on debt extinguishment for the year ended
December 31, 2006 represents the unamortized deferred
financing cost associated with the credit facility of the Magnum
contributed properties that was repaid in conjunction with the
recapitalization of Magnum in March 2006.
For the year ended December 31, 2007, Magnum recorded a
charge related to the change in market value of its interest
rate swap. The change in value was directly related to the
decrease in interest rates during 2007 compared with 2006 where
a gain was recognized.
The loss from discontinued operations reflects the impact of
shutting down Magnum’s Dakota operations in August 2006.
Magnum was formed on October 5, 2005 for the purpose of
acquiring the Magnum acquired properties. Magnum’s
activities in 2005 were limited to the completion of this
acquisition which closed on December 31, 2005. Because
Magnum conducted no operating activities in 2005, Magnum does
not believe that a comparison of its financial results for 2006
and 2005 is meaningful and is accordingly not presented.
Critical
Accounting Policies and Estimates
The preparation of financial statements in conformity with
accounting principles generally accepted in the United States
requires Magnum’s management to make estimates and
assumptions that affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities
at the date of the financial statements and the reported amounts
of revenues and expenses during the reporting period. Readers
are cautioned that Magnum’s actual results could differ
from these estimates and such differences could be material.
Coal sales contracts acquired have been recorded at their
estimated fair value at the date of acquisition. These sales
contracts are valued at the present value of the difference
between the stated price in the acquired contract, net of
royalties and taxes, and the market prices for new contracts of
similar duration and coal quality at the date of acquisition.
Using this approach to valuation, certain contracts, where the
expected contract price is below market price at the date of
acquisition, have a negative value and are classified as a net
liability, while contracts above market have a positive value
and are classified as assets. This liability is accreted and the
asset is amortized to income over the term of the contracts
based on the tons of coal shipped under each contract. Accretion
credits for 2007 and 2006 were $81.3 million and
$100.9 million, respectively, for unfavorable contracts and
amortization charges for 2007 and 2006 were $101.1 million
and $68.9 million, respectively, for favorable contracts.
Employee-Related
Liabilities
Magnum has significant long-term liabilities for postretirement
benefit costs. See Note 11 of the audited consolidated financial
statements of Magnum. Expenses for the year ended
December 31, 2007 for such liabilities totaled
$38.6 million, while benefits paid were $30.8 million.
Magnum’s other postretirement benefits liability was
actuarially-determined based upon present value of known claims
and an estimate of
future claims that will be awarded to former employees. The
expected rate of return on plan assets is determined by taking
into consideration expected long term returns of similar rated
assets on the market. Magnum makes assumptions related to future
trends for medical care costs in the estimates of retiree
healthcare obligations. Magnum’s medical trend assumption
is developed by annually examining the historical trend of its
cost per claim data.
If the assumptions do not materialize as expected, actual cash
expenditures and costs that are incurred could differ materially
from the current estimates and such difference could be
material. Moreover, regulatory changes could increase the
obligation to satisfy these or additional obligations.
Healthcare cost trend rates have a significant effect on the
expense and liability amounts reported for healthcare plans.
Magnum’s sensitivity analysis demonstrating the
significance of these assumptions in relation to reported
amounts is set forth below.
One-Percentage
One-Percentage
Point Increase
Point Decrease
(In thousands)
Effect on total of service cost and interest cost components
$
4,887
$
(3,998
)
Effect on year-end postretirement benefit obligation
62,643
(51,959
)
Impairment
of Long-lived Assets
If facts and circumstances suggest that a long-lived asset may
be impaired, the carrying value is reviewed. If this review
indicates that the value of the asset will not be recoverable,
as determined based on projected undiscounted cash flows related
to the asset over its remaining life, then the carrying value of
the asset is reduced to its estimated fair value.
Asset
Retirement Obligations
Magnum’s asset retirement obligation (referred to herein as
ARO) liabilities primarily consist of cost estimates related to
reclaiming surface land and support facilities at both surface
and underground mines in accordance with federal and state
reclamation laws as defined by each mine permit. The obligation
and corresponding asset are recognized in the period in which
the liability is incurred. Magnum estimates its ARO liabilities
for final reclamation and mine closure based upon detailed
engineering calculations of the amount and timing of the future
cash expenditures for a third party to perform the required
work. Cost estimates are escalated for inflation then discounted
at the credit-adjusted risk-free rate. Changes in estimates
could occur due to mine plan revisions, changes in estimated
costs, changes in timing of the performance of reclamation
activities, and changes in the credit profile of the company and
the related discount rate. Asset retirement obligation expense
for the year ended December 31, 2007, was $7.4 million
and payments totaled $2.0 million.
Deferred
Mine Development
Costs of developing new mines or significantly expanding the
capacity of existing mines are capitalized and amortized using
the units-of-production method over the estimated recoverable
reserves that are associated with the property being benefited.
Mineral
Rights
Significant portions of Magnum’s coal reserves are
controlled through leasing arrangements. Amounts paid to acquire
such lease rights are capitalized and depleted over the life of
those reserves that are proven and probable. Depletion of coal
lease rights is computed using the units-of-production method
and the rights are assumed to have no residual value. The leases
are generally long-term in nature, and substantially all of the
leases contain provisions that allow for automatic extension of
the lease term as long as mining continues. The net book value
of Magnum’s mineral rights was $799.6 million and
$807.7 million at December 31, 2007 and 2006,
respectively.
Revenue arising from production and sale of coal under
Magnum’s coal sales contracts is recognized when the coal
is delivered either by truck or by rail to an
agreed-upon
destination, and the risk of loss has passed to the customer as
specified in the respective contract.
Income
Taxes
Deferred income taxes are provided for temporary differences
between the financial statement and tax basis of assets and
liabilities existing at each balance sheet date using enacted
tax rates for years during which taxes are expected to be paid
or recovered. Deferred taxes result from differences between the
financial and tax bases of Magnum’s assets and liabilities.
Interest and penalties will be included as interest expense. A
valuation allowance is recorded to reduce deferred tax assets to
the amount most likely to be realized.
Liquidity
and Capital Resources
Credit
Facilities
Magnum is party to a credit agreement dated March 21, 2006
(amended on March 30, 2007 and March 26,2008) providing for senior secured credit facilities for
aggregate maximum extensions of credit of $260 million, for
which Lehman Brothers Inc. serves as sole arranger and sole
bookrunner. The credit agreement provides for (i) the issue
of a senior secured term loan in an aggregate principal amount
of $200 million with a maturity of March 21, 2013,
(ii) a senior secured revolving credit facility providing
for up to $40 million of revolving loans outstanding at any
time, which matures on March 21, 2011 and (iii) a
synthetic letter of credit facility of up to $20 million,
which matures on March 21, 2013. On December 8, 2006,
Magnum exercised its right to increase the amount of the
synthetic letter of credit facility by an additional amount of
up to $30 million (for a total of $50 million). On
March 26, 2008, Magnum issued $100 million of senior
subordinated second lien convertible notes to a number of
existing stockholders, primarily to pay down part of the debt
then outstanding under the credit facilities described above.
See “Certain Relationships and Related Party
Transactions of Magnum — Magnum Convertible
Notes”for a more detailed description of the Magnum
convertible notes. As of March 31, 2008, the outstanding
principal amounts of term loans and revolving credit loans under
the credit agreement were $116 million and
$20 million, respectively. As of the same date, the
aggregate face amount of outstanding letters of credit was
$27 million.
The obligations of Magnum under the senior secured credit
facilities are currently guaranteed by the direct and indirect
subsidiaries of Magnum. The existing credit facilities are
secured by (i) pledges of all membership interests of the
direct and indirect subsidiaries of Magnum, and (ii) a
first lien on substantially all of the tangible and intangible
assets owned by Magnum and its direct and indirect subsidiaries,
in both cases subject to certain exceptions. The credit
agreement contains certain customary covenants, including
financial covenants, as well as certain limitations on, among
other things, additional debt, liens, investments, acquisitions
and capital expenditures, future dividends and asset sales.
Under the terms of the merger agreement, Magnum’s credit
agreement must be fully repaid and terminated prior to the
consummation of the merger.
The interest rate per annum applicable to the loans under the
senior secured credit facilities is based on a fluctuating rate
of interest determined by reference to either (i) a base
rate for loans made in U.S. dollars, or (ii) a
eurodollar rate for loans made in eurodollars, in each case,
plus an applicable margin. The applicable margin for borrowings
under the revolving credit facility and the term loan is
250 basis points with respect to base rate borrowings and
350 basis points with respect to eurodollar borrowings and
is further subject to a pricing grid. At March 31, 2008,
the effective interest rates on the revolving credit facility
and term loan, respectively, were 9.75% and 9.75%, for
eurodollar borrowings.
Other
Magnum’s primary sources of cash include sales of its coal
production to customers, sales of non-core assets and financing
transactions. Magnum’s primary uses of cash include cash
costs of coal production,
capital expenditures, interest expense and costs related to past
mining obligations. Magnum’s ability to service its debt
(interest and principal) and acquire new productive assets or
businesses is dependent upon Magnum’s ability to generate
cash from the primary sources noted above in excess of the
primary uses. Magnum expects to fund its capital expenditure
requirements with cash generated from operations or from
financing transactions that may include sales of Magnum’s
equity or debt securities as necessary.
Net cash provided by operating activities was $25.4 million
for the three months ended March 31, 2008 compared to net
cash used by operating activities of $11.8 million in the
same period of 2007. The increase in cash primarily related to
improved operating results, a $11.7 million prepaid sales
contract with a customer, and increases in other working capital
accounts. Net cash provided by operating activities was
$17.1 million for the year ended December 31, 2007
compared to net cash used of $91.3 million for the year
ended December 31, 2006. This increase of
$108.4 million in net cash provided by operating activities
relates primarily to the restructuring of coal sales contracts
of $158.3 million in 2006, partially offset by sales
contract (accretion) dilution, a non-cash gain on exchange of
mining reserves and lower cash provided by changes in working
capital in 2007.
Net cash used in investing activities was $19.0 million for
the three months ended March 31, 2008 compared to
$9.0 million in the same period of 2007. The increased use
of cash is due to an increase in capital expenditures. Net cash
used in investing activities was $62.1 million for the year
ended December 31, 2007 compared to net cash used in
investing activities of $64.5 million for the year ended
December 31, 2006. For the year ended December 31,2006, Magnum’s investments in equipment and mine
development were $22.0 million higher than the year ended
December 31, 2007. These investments were offset with cash
acquired through the acquisition of the Magnum contributed
properties of $21.0 million for the year ended
December 31, 2006.
Net cash used in financing activities was $1.4 million for
the three months ended March 31, 2008 compared to net cash
provided in financing activities of $19.1 million in 2007.
For the three months ended March 31, 2008,
$100 million was paid on the Company’s existing credit
facility from the proceeds of the Magnum convertible notes
issued in March 2008. For the three months ended March 31,2007, Magnum used $20 million of its revolving credit
facility. Net cash provided by financing activities was
$35.8 million for the year ended December 31, 2007, a
decrease of $157.6 million compared to the prior year. In
2006, Magnum was recapitalized with net proceeds from the sale
of its common stock of $403.8 million and net proceeds from
borrowings under Magnum’s credit facility of
$191.9 million. These proceeds were used to retire
$402.2 million of existing indebtedness of the Magnum
contributed properties. In 2007, Magnum borrowed
$40.0 million under its revolving credit facility and made
the required principal payments on its term loan and capital
leases.
Represents long-term liabilities relating to Magnum’s
postretirement benefit plans, work-related injuries and
illnesses and mine reclamation and end-of-mine costs.
Magnum leases equipment under various noncancelable operating
lease agreements. The noncancelable lease agreements allow
Magnum to extend the lease agreements annually after the
original lease term. Rental
expense related to these operating leases was
$18.3 million, $14.2 million, and $7.2 million
for the years ended December 31, 2007, 2006, and 2005,
respectively.
Magnum also leases coal reserves under agreements that require
royalties to be paid as the coal is mined. The agreements
require minimum monthly royalties to be paid regardless of the
amount of coal mined during the year. Royalty expense related to
these agreements was $46.6 million, $42.7 million, and
$33.2 million for the years ended December 31, 2007,
2006, and 2005, respectively.
Off-Balance
Sheet Arrangements
In the normal course of business, Magnum is a party to certain
off-balance sheet arrangements. These arrangements include
guarantees, indemnifications, and financial instruments with
off-balance sheet risk. Liabilities related to these
arrangements are not reflected in the consolidated balance
sheets, and Magnum does not expect any material impact on its
financial condition, results of operations, or cash flows to
result from these off-balance sheet arrangements.
Magnum has used collateralized surety bonds to secure the
financial obligation for reclamation of mining properties of
$121.4 million and wage bonds of $1.4 million as of
December 31, 2007. Magnum also has issued letters of credit
in favor of the UMWA and to support surety bonds of
$9.1 million and $17.2 million, respectively. Of the
$121.4 million of reclamation bonds, Arch Coal provides
guarantees for $94.1 million of the reclamation bonds
outstanding as of December 31, 2007. If Magnum cannot
obtain a release of the Arch Coal guarantees related to
reclamation bonds by September 30, 2008, Magnum will be
required to post a letter of credit in Arch Coal’s favor in
the amount of the portion of the reclamation bonds guaranteed by
Arch Coal that is reflected as a liability on Magnum’s
balance sheet. Alternatively, if Magnum merges with a publicly
traded coal company on or prior to September 30, 2008, and
prior to the closing of the merger, Magnum has not obtained the
release of the Arch Coal guarantees outstanding, Magnum will be
required to post letters of credit in Arch Coal’s favor in
accordance with a specific schedule after the closing of such a
merger. The merger with Patriot will subject Magnum to this
requirement. Following the termination of Arch Coal’s
guarantee, or earlier in the event that Arch Coal has defaulted
on its guarantee, Magnum could be subject to increased costs to
maintain the surety bonds or be unable to obtain replacement
surety bonds. Arch Coal has also agreed to guarantee certain
equipment leases, the coal mining leases held by the Magnum
acquired properties and certain coal sales agreements described
in the Arch purchase and sale agreement, and Magnum has agreed
to use its commercially reasonable efforts to facilitate the
release of Arch Coal from such guarantees.
Changes
in and Disagreements with Accountants on Accounting and
Financial Disclosure
None.
Quantitative
and Qualitative Disclosures About Market Risk
Magnum presents the sensitivity of the market value of its
financial instruments to selected changes in market rates and
prices. The range of changes reflects Magnum’s
management’s reasonable expectations in a one year period.
Actual results may differ from the expectations presented by
Magnum.
Magnum manages the commodity price risk for the non-trading,
long-term coal contract portfolio through the use of long-term
coal supply agreements, rather than through the use of
derivative instruments. At March 31, 2008, based on current
expectations of production over the next three years, Magnum
expects production available for repricing of approximately
0.7 million tons in 2008, 6.5 million tons in 2009,
and 13.8 million tons in 2010.
Magnum’s objectives in managing exposure to interest rate
changes are to limit the impact of interest rate changes on
earnings and cash flows and to lower overall borrowing costs. To
achieve these objectives, Magnum has entered into a swap
agreement to convert a portion of the interest on the principal
of the loans made under Magnum’s credit agreement from
variable to fixed rate using a notional value. Until
March 2008, the notional principal value under
Magnum’s swap agreement was $150 million. A one
percentage point increase in interest rates would result in an
annualized increase to interest expense of $0.9 million on
the credit agreement, with a $2.4 million increase in
variable interest expense offset by $1.5 million income
from
the swap agreement. Effective in March 2008, the notional
principal value under Magnum’s swap agreement was decreased
to $110 million and the fixed rate was increased by
approximately 100 basis points.
Magnum is exposed to the risk of fluctuations in cash flows
related to the purchase of diesel fuel. Magnum has entered into
forward physical purchase contracts and heating oil swaps and
options to reduce volatility in the price of diesel fuel
annually. The swap agreements essentially fix the price paid for
diesel fuel by requiring Magnum to pay a fixed heating oil price
and receive a floating heating oil price. The call options
protect against increases in diesel fuel by granting Magnum the
right to participate in increases in heating oil prices. The
agreements are annual; therefore, Magnum recognizes the gains
and losses through cost of mining as a normal part of business.
Magnum has not entered into a heating oil swap agreement for
2008.
Magnum is exposed to price risk related to the value of sulfur
dioxide emission allowances that are a component of quality
adjustment provisions in many of the coal supply contracts.
Magnum may purchase call options to mitigate the risk of changes
in the fair value of a contract that contains a fixed price for
sulfur dioxide emission allowances. Currently, Magnum has not
entered into a sulfur dioxide emission contract. It is difficult
to predict the impact of complying with such regulations.
Magnum’s management believes that the quality of
Magnum’s coal reserves and market forces will serve to
mitigate the adverse affect of existing and new regulations.
During the three months ended March 31, 2008, Magnum sold
4.1 million tons of captive coal and 0.4 million tons
of purchased coal. During the year ended December 31, 2007,
Magnum sold 16.1 million tons of captive coal and
2.2 million of purchased coal. Sales were primarily to
electricity generating and industrial users in the eastern half
of the United States.
Customer
Credit Risk
Magnum’s sales are made primarily to electric utility
customers. Credit is extended based on an evaluation of the
customer’s financial condition prior to entering into
transactions. If a customer does not meet Magnum’s credit
standards, Magnum will require collateral or prepayments for
shipments before working with the customer. Magnum has not had
any allowance for bad debts for trade receivables for
December 31, 2007 or 2006.
For the year ended December 31, 2007, 93% of captive coal
sales were to U.S. electricity generators and 7% were to
other domestic coal producers. For the year ended
December 31, 2007, two customers accounted for 37% and 20%
of captive coal sales revenue.
Amounts due from coal sales to electric generating companies and
their affiliates represent 91% and 80% of trade accounts
receivable due Magnum at December 31, 2007 and 2006,
respectively. Magnum had 8% and 20% of accounts receivable due
from coal producing entities at December 31, 2007 and 2006,
respectively. In 2007, there were three customers who
represented 29%, 17%, and 15% of Magnum’s trade accounts
receivable balance. In 2006, there were five customers who
represented 33%, 15%, 12%, 11%, and 10% of Magnum’s trade
accounts receivable balance. No other customers exceeded 10% of
Magnum’s trade credit exposure.
Management’s Discussion and Analysis of Pro Forma Results
of Operations of Magnum are presented as if the acquisition of
the Magnum acquired properties and the Magnum contributed
properties, which we refer to as the Magnum formation
transactions, occurred on January 1, 2005, thus allowing
for a consistent basis of presentation across the three years
ended December 31, 2007, 2006 and 2005. On March 21,2006, as part of a recapitalization, ArcLight I and Elliott
contributed 100% of their equity interests in the Magnum
contributed properties to Magnum in exchange for a total of
18,181,470 shares of Magnum common stock. The historical
Magnum results of operations for the year ended
December 31, 2006 include nine months of activity for the
Magnum contributed properties. For purposes of determining pro
forma impact of the Magnum formation transactions on
Magnum’s results of operations for the years ended
December 31, 2006 and 2005, Magnum gave effect to the fair
value adjustments applied to the historical amounts of the
Magnum acquired properties and the minority interest of Elliott.
Magnum’s management believes the pro forma financial
information presented, giving effect to the consummation of the
Magnum formation transactions, is meaningful in understanding
and evaluating Magnum’s historical financial results,
because it reflects Magnum’s operating performance as if
Magnum’s formation transactions had occurred at the
beginning of the periods presented, which is consistent with
Magnum’s current presentation of its operating performance.
This pro forma information is not necessarily indicative of what
the results of operations actually would have been had the
Magnum formation transactions been completed at the date
indicated. In addition, the information discussed below relates
to Magnum’s historical results and may not necessarily
reflect Magnum’s future financial position, results of
operations and cash flows.
Certain reclassifications have been made to Magnum’s
historical financial results to conform to Patriot’s
definition of Adjusted EBITDA and Segment Adjusted EBITDA as
defined in “Management’s Discussion and Analysis of
Financial Condition and Results of Operations of Patriot”contained in this proxy statement/prospectus.
The unaudited pro forma results of operations for the year ended
December 31, 2006 include adjustments to reflect the
contribution of the Magnum contributed properties to Magnum, the
origination of the Magnum credit facility and related interest
rate swap activity as if these transactions occurred on
January 1, 2006 in order to be comparable to 2007. The
unaudited pro forma results of operations for the year ended
December 31, 2005 are presented as if all of the Magnum
formation transactions (acquisition of the Magnum acquired
properties and the Magnum contributed properties) had occurred
on January 1, 2005. The origination of the Magnum credit
facility and related interest rate swap that Magnum entered into
are assumed to be transaction costs unrelated to the Magnum
formation transaction.
Magnum’s total revenues were $897.3 million for the
year ended December 31, 2007, reflecting an increase of
$38.4 million compared to the prior year. The increase was
primarily due to a gain on the exchange of coal reserves and
increases in other revenues. Mining Operations Adjusted EBITDA
decreased $26.0 million for the year ended
December 31, 2007 compared to 2006 primarily due to higher
operating costs related to increased costs of labor and mining
supplies, partially offset by the gain on exchange of mining
reserves and higher other revenues. Net loss increased by
$36.3 million primarily due to the results of operations
discussed above as well as contract restructurings in 2006 which
resulted in higher contract amortization in 2007.
Tons
sold and Revenue
Year Ended December 31,
Increase (Decrease)
2007
2006
Tons/$
%
Historical
Pro Forma
(Dollars and tons in thousands; except per ton amounts)
Tons sold
18,300
18,164
136
0.7
%
Coal sales
$
813,974
$
812,090
$
1,884
0.2
%
Gain on exchange of mining reserves
15,262
—
15,262
100.0
%
Other revenues
68,018
46,775
21,243
45.4
%
Total revenues
$
897,254
$
858,865
$
38,389
4.5
%
Average coal sales price per ton sold
$
44.48
$
44.71
$
(0.23
)
(0.5
)%
In this pro forma presentation, Magnum’s total coal sales
were fairly consistent in 2007 and 2006 with the net increase of
0.1 million tons sold in 2007 compared to the prior year
reflecting an increase of 1.1 million tons in purchased
tons sold, largely offset by lower production of
1.0 million tons in 2007. The production shortfall
primarily related to difficult geologic conditions and the
impact of these conditions on the mining equipment at the
Panther mine. See “Business of Magnum —
Magnum’s Mining Complexes — Panther Mining
Complex” for a more detailed description of these
geologic conditions.
Magnum realized a gain on exchange of coal reserves for the year
ended December 31, 2007 related to the exchange of coal
reserves with a third party. Magnum received approximately
3.1 million tons of adjacent coal reserves from a third
party, allowing Magnum to continue mining at an existing mine
site.
Other revenues increased for the year ended December 31,2007 compared to the same period in 2006 primarily due to
increased rental and dock loading income, synfuel income and
billable freight. Due to the loss of synfuel tax incentives,
Magnum will cease production of synfuel in 2008.
Gain (loss) generated from change in market value of interest
rate swap
(1,551
)
2,504
(4,055
)
n/a
Loss from continuing operations
(117,770
)
(71,296
)
(46,474
)
(65.2
)%
Loss from discontinued operations
(3,787
)
(13,952
)
10,165
72.9
%
Net loss
$
(121,557
)
$
(85,248
)
$
(36,309
)
(42.6
)%
Mining Operations Adjusted EBITDA decreased for the year ended
December 31, 2007 compared to 2006, primarily due to higher
operating costs related to increased costs of labor and mining
supplies, partially offset by higher revenues. The increase in
operating costs for mining supplies was driven by higher costs
for diesel fuel, explosives, tires and steel products. Labor
costs for the year increased due to a new labor agreement that
went into effect on January 1, 2007.
Past mining obligations expense decreased slightly for the year
ended December 31, 2007 as compared to 2006 primarily
related to lower costs associated with multiemployer healthcare
plan obligations.
Selling and administrative expenses increased for the year ended
December 31, 2007 as compared to 2006, resulting from
increased costs associated with the increase in staffing at
Magnum’s corporate office during 2007, increased
stock-based compensation expense, and higher legal and
professional fees in 2007.
Magnum had a gain on coal sales supply contract restructuring
for the year ended December 31, 2007 compared with a loss
for the prior year. The gain resulted from Magnum restructuring
a below market sales contract to reduce future shipments in
exchange for a discounted price on tons remaining to be shipped.
In March 2006, Magnum restructured certain sales contracts with
two of its customers. In exchange for a cash payment, Magnum
repriced the remaining tons to be delivered and made a one-time
payment to eliminate the supply requirement for the other tons.
The loss on coal sales supply contract restructuring represents
the payment made to release Magnum from its requirement to
supply certain tons.
Sales contract amortization increased for the year ended
December 31, 2007 compared to 2006. During 2006, net sales
contract accretion was driven by shipments on below market sales
contracts exceeding the amortization on the contracts that were
restructured in March 2006. In 2007, a full year of amortization
on the restructured contracts was recorded which exceeded the
accretion on the below market sales contracts.
Depreciation, depletion and amortization decreased for the year
ended December 31, 2007 compared to 2006 due to accelerated
depreciation of certain acquired assets in 2006.
Asset retirement obligation expense increased for the year ended
December 31, 2007 compared to the prior year due to
additional mines opening in 2007 which increased valley fill and
reclamation expenses.
Interest expense increased for the year ended December 31,2007 compared to 2006 due to the increased level of average
indebtedness outstanding under the Magnum’s credit facility
during 2007.
The loss on debt extinguishment for the year ended
December 31, 2006 represents the unamortized deferred
financing cost associated with the credit facility of the Magnum
contributed properties that was repaid in conjunction with the
recapitalization of Magnum in March 2006.
For the year ended December 31, 2007, Magnum recorded a
charge related to the change in market value of its interest
rate swap. The change in value was directly related to the
decrease in interest rates during 2007 compared with 2006 where
a gain was recognized.
The loss from discontinued operations reflects the impact of the
shut down of Magnum’s Dakota operations in August 2006.
Magnum’s total revenues were $858.9 million for the
year ended December 31, 2006, reflecting an increase of
$105.2 million compared to the prior year. The increase was
primarily due to higher average prices, which were driven by
strong demand. Mining Operations Adjusted EBITDA increased
$28.6 million for the year ended December 31, 2006
compared to 2005 primarily due to the higher average sales
prices partially offset by higher operating costs. Net loss
increased by $62.0 million due to a loss on contract
restructurings, lower contract accretion in 2006 and higher
depreciation, depletion and amortization, partially offset by
lower interest expense, lower loss on debt extinguishment and
improved results from mining operations.
Tons
sold and Revenue
Year Ended December 31,
Increase (Decrease)
2006
2005
Tons/$
%
Pro Forma
Pro Forma
(Dollars and tons in thousands, except per ton amounts)
Tons sold
18,164
18,350
(186
)
(1.0
)%
Coal sales
$
812,090
$
706,444
$
105,646
15.0
%
Other revenues
46,775
47,270
(495
)
(1.0
)%
Total revenues
$
858,865
$
753,714
$
105,151
14.0
%
Average coal sales price per ton sold
$
44.71
$
38.50
$
6.21
16.1
%
Revenue increased for the year ended December 31, 2006
compared to 2005 as a result of increased average prices in 2006
driven by increased demand, and was partially offset by lower
tons shipped in 2006.
Other revenues are principally comprised of freight costs billed
to customers plus other revenue sources related to synfuel
income, lease and royalty income. Other revenues decreased for
the year ended December 31, 2006 compared to 2005 due to
lower billable freight, partially offset by higher synfuel
income as well as related lease income and increased royalties
earned.
Gain (loss) generated from change in market value of interest
rate swap
2,504
—
2,504
100.0
%
Loss from continuing operations
(71,296
)
(26,287
)
(45,009
)
(171.2
)%
Loss from discontinued operations
(13,952
)
3,053
(17,005
)
n/a
Net loss
$
(85,248
)
$
(23,234
)
$
(62,014
)
(266.9
)%
Mining Operations Adjusted EBITDA increased for the year ended
December 31, 2006 compared to 2005 primarily due to higher
average sales prices, partially offset by higher operating costs
for supplies, repairs and higher severance taxes (state taxes
paid in connection with the production of coal).
Selling, general and administrative expenses increased for the
year ended December 31, 2006 compared to 2005 due to
non-cash stock-based compensation expense incurred in 2006
partially offset by certain legal and professional expenses
incurred in 2005 related to the acquisition of the Magnum
acquired properties.
In March 2006, Magnum restructured certain sales contracts with
two of its customers. In exchange for a cash payment, Magnum
repriced the remaining tons to be delivered and made a one-time
payment to eliminate the supply requirement for the other tons.
The loss on coal sales supply contract restructuring represents
the payment made to release Magnum from its requirement to
supply certain tons.
Sales contract accretion decreased for the year ended
December 31, 2006 compared to 2005 principally due to the
impact of the sales contract restructuring completed in March
2006, discussed above.
Depreciation, depletion and amortization increased for the year
ended December 31, 2006 compared to 2005 as a result of
additional capital expenditures in 2006.
Asset retirement obligation expense increased for the year ended
December 31, 2006 compared to the prior year due to
reclamation performed and the valuation of the remaining costs
to complete.
Interest expense decreased for the year ended December 31,2006 compared to 2005 as a result of the refinancing of
Magnum’s outstanding indebtedness completed in March 2006.
The loss on debt extinguishment for the year ended
December 31, 2006 represents the unamortized deferred
financing cost associated with the credit facility of the Magnum
contributed properties that was repaid in conjunction with the
recapitalization of Magnum in March 2006.
For the year ended December 31, 2006, Magnum recorded a
gain related to the change in market value of its interest rate
swap. The interest rate swap was entered into in conjunction
with the recapitalization of Magnum.
The loss from discontinued operations reflects the impact of the
shut down of Magnum’s Dakota operations in August 2006
compared to the results of Dakota’s mining operations in
2005.
Certain
Relationships Resulting from the Transaction
Transaction
Related Agreements
In connection with the merger agreement, Patriot, the ArcLight
Funds, acting jointly, as stockholder representative, and
certain stockholders of Magnum entered into the voting agreement
and Patriot and certain stockholders entered into the support
agreements. At the effective time of the merger, Patriot and the
ArcLight Funds will enter into a registration rights agreement
and Patriot and the ArcLight Funds, acting jointly, as
stockholder representative, will enter into an escrow agreement.
For a description of the relationships arising from these
agreements, see “Ancillary Transaction
Agreements.”
In connection with the merger agreement, Patriot and the
ArcLight Funds entered into a commitment letter with respect to
the ArcLight financing. On May 30, 2008, Patriot terminated
the commitment letter. Patriot paid an aggregate of
$1.5 million in commitment fees to the ArcLight Funds in
connection with the commitment letter prior to its termination.
See “The Merger — Financing
Arrangements.”
Patriot’s
Relationship with Peabody
In connection with the spin-off, Patriot and Peabody entered
into a Separation Agreement and several ancillary agreements to
complete the separation of their businesses and to distribute
Patriot’s common stock. Several of these agreements govern
the ongoing relationship between Peabody and Patriot. The
agreements were prepared before the spin-off and reflect
agreement between then affiliated parties established without
arms-length negotiation. However, Patriot believes the terms of
these agreements will equitably reflect the benefits and costs
of its ongoing relationship with Peabody. The ancillary
agreements include the following:
•
Various coal supply agreements;
•
Tax Separation Agreement;
•
Coal Act Liability Assumption Agreement;
•
NBCWA Liability Assumption Agreement;
•
Salaried Employee Liability Assumption Agreement;
•
Administrative Services Agreement;
•
Transition Services Agreement;
•
Employee Matters Agreement;
•
Various real property agreements;
•
Throughput and Storage Agreement for a coal transloading
facility;
The Separation Agreement, Plan of Reorganization and
Distribution, which we refer to as the Separation Agreement,
sets forth the agreement between Patriot and Peabody with
respect to the principal corporate transactions required to
spin-off from Peabody and other agreements governing the
relationship between Peabody and Patriot following the
separation, including certain litigation matters.
The Separation Agreement generally provides for a full and
complete mutual release and discharge as of the date of the
spin-off of all liabilities existing or arising from all acts
and events occurring or failing to occur or alleged to have
occurred or have failed to occur and all conditions existing or
alleged to have existed on or before the separation, between or
among Peabody or its affiliates, on the one hand, and Patriot or
its affiliates, on the other hand, except as expressly set forth
in the Separation Agreement. The liabilities released or
discharged include liabilities arising under any contractual
agreements or arrangements existing or alleged to exist between
or among any such members on or before the separation, other
than the Separation Agreement, the ancillary agreements
described below and the other agreements referred to in the
Separation Agreement.
Subject to certain exceptions, Patriot agrees to indemnify
Peabody and its affiliates, and each of their directors,
officers and employees, from and against all liabilities
relating to, arising out of or resulting from:
•
The business, operations, contracts, assets and liabilities of
Patriot and its affiliates, whether arising before or after the
spin-off;
•
Liabilities or obligations associated with the Patriot business,
as defined in the Separation Agreement, or otherwise assumed by
Patriot pursuant to the Separation Agreement, including
liabilities associated with litigation related to the Patriot
business;
•
Any breach by Patriot of the Separation Agreement or any of the
ancillary agreements entered into in connection with the
Separation Agreement; and
•
Any untrue statement or alleged untrue statement of any material
fact contained in Patriot’s information statement dated
October 24, 2007 filed on
Form 8-K
or any amendment or supplement thereto or the omission or
alleged omission to state therein a material fact required to be
stated, except for information for which Peabody will agree to
indemnify Patriot as described below.
Subject to certain exceptions, Peabody agrees to indemnify
Patriot and its affiliates, and each of Patriot’s
directors, officers and employees, from and against all
liabilities relating to, arising out of or resulting from:
•
The business, operations, contracts, assets and liabilities of
Peabody and its affiliates (other than the Patriot business),
whether arising before or after the spin-off;
•
Liabilities or obligations of Peabody or its affiliates other
than those of an entity forming part of the Patriot business or
otherwise assumed by Patriot pursuant to the Separation
Agreement, including liabilities associated with litigation that
is not related to the Patriot business;
•
Any breach by Peabody of the Separation Agreement or any of the
ancillary agreements entered into in connection with the
Separation Agreement;
•
Certain retiree healthcare costs, as described under Liability
Assumption Agreements and Administrative Services Agreement
below; and
•
Any untrue statement or alleged untrue statement of any material
fact regarding Peabody included in certain sections of
Patriot’s information statement dated October 24, 2007
filed on
Form 8-K.
Non-solicitation
of employees
Except with the written approval of the other party and subject
to certain exceptions provided in the Separation Agreement,
Patriot and Peabody agree not to, for a period of 12 months
following the spin-off, directly or indirectly solicit or hire
employees of the other party or its subsidiaries.
Expenses
Peabody paid all costs and expenses incurred in connection with
the spin-off and the transactions contemplated by the Separation
Agreement, and all costs and expenses incurred in connection
with the preparation, execution, delivery and implementation of
the Separation Agreement and the ancillary
agreements. Peabody also paid other expenses of the transaction,
including the legal, filing, accounting, printing, and other
expenses incurred in connection with the preparation, printing,
and filing of the registration statement on Form 10.
Peabody also funded a portion of Patriot’s credit facility
origination fees and various legal fees related to the spin-off
totaling $7.1 million.
Litigation
Matters
The Separation Agreement provides that Patriot will diligently
conduct, at its sole cost and expense, the defense of any
actions related to the Patriot business, that Patriot will
notify Peabody of any material developments related to such
litigation, and that Patriot will agree not to file cross claims
against Peabody in relation to such actions. Peabody made
corresponding agreements with respect to actions that are not
related to the Patriot business. Patriot and Peabody have agreed
to share the cost and expense of certain actions that they
cannot currently identify as being related to the Patriot or
Peabody businesses, until they can be so classified.
Furthermore, the Separation Agreement requires Patriot and
Peabody to cooperate to, among other matters, maintain
attorney-client privilege and work product doctrine in
connection with litigation against Patriot or Peabody, as
further set forth in the common interest agreement described
below.
Amendments
and Waivers; Further Assurances
The Separation Agreement provides that no provisions of it or
any ancillary agreement will be deemed waived, amended,
supplemented or modified by any party unless the waiver,
amendment, supplement or modification is in writing and signed
by the authorized representative of the party against whom that
waiver, amendment, supplement or modification is sought to be
enforced.
Peabody and Patriot agree to use their respective reasonable
efforts to:
•
Execute and deliver any additional instruments and documents and
take any other actions the other party may reasonably request to
effectuate the purposes of the Separation Agreement and the
ancillary agreements and their terms; and
•
To take all actions and do all things reasonably necessary under
applicable laws and agreements or otherwise to consummate and
make effective the transactions contemplated by the Separation
Agreement and the ancillary agreements.
Dispute
Resolution
The Separation Agreement contains provisions that govern, except
as otherwise provided in any ancillary agreements, the
resolution of disputes, controversies or claims that may arise
between Patriot and Peabody. These provisions contemplate that
efforts will be made to resolve disputes, controversies or
claims by escalation of the matter to senior management,
independent Board committees or other representatives of Patriot
or Peabody. If those efforts are not successful, the parties may
by mutual agreement submit the dispute, controversy or claim to
arbitration, subject to the provisions of the Separation
Agreement.
Consummation
of Spin-off Transaction
On October 31, 2007, Patriot received a net contribution
from Peabody of $781.3 million, which reflected the
following:
•
retention by Peabody of certain retiree healthcare liabilities
of $615.8 million;
•
the forgiveness of the outstanding intercompany payables to
Peabody on October 31, 2007 of $81.5 million;
•
the retention by Patriot of trade accounts receivable at
October 31, 2007, previously recorded through intercompany
receivables, of $68.6 million;
the retention by Peabody of assets and asset retirement
obligations related to certain Midwest mining operations of a
net $8.1 million;
•
less the transfer of intangible assets of $22.7 million
related to purchased contract rights for a supply contract
retained by Peabody.
Coal
Supply Agreements
Following the spin-off, a majority of the coal produced by
Patriot’s operations is sold to Peabody pursuant to coal
supply agreements. Patriot will continue to supply coal pursuant
to the Master Coal Supply Agreements and two other coal supply
agreements discussed below. As of February 29, 2008,
Patriot’s obligations under these contractual arrangements
are as follows: 18.9 million tons in 2008,
10.6 million tons in 2009, 6.7 million tons in 2010,
6.5 million tons in 2011 and 2.8 million tons in 2012.
Patriot maintains a separate sales and marketing subsidiary, and
enters into its own coal supply arrangements for new business.
As Peabody’s underlying coal supply agreements expire,
Peabody and Patriot may separately compete with each other and
other coal suppliers for future business.
Master
Coal Supply Agreements
To ensure continuity of supply to certain customers of Peabody,
Patriot’s sales and marketing subsidiary entered into a
total of three Master Coal Supply Agreements with Peabody
subsidiaries, including separate agreements with each of the
following: (1) COALSALES, LLC, (2) COALSALES II, LLC
and (3) COALTRADE INTERNATIONAL, LLC. Under these
contracts, the Patriot subsidiary continues to supply coal
sourced from Patriot operations directly to customers who have
existing contracts with these Peabody subsidiaries. The Master
Coal Supply Agreements incorporate the terms and conditions of
individual contracts between the Peabody subsidiaries and
customers supplied by Patriot operations. Patriot undertakes to
perform Peabody’s obligations with respect to the
underlying coal supply contracts, and indemnifies Peabody for
Patriot’s unexcused failure to perform. In turn, Patriot is
entitled to the benefits that Peabody has under such contracts.
Payments to Patriot are due within five days following the
invoice date for end customer payments. Under the terms of the
Master Coal Supply Agreements, the Patriot subsidiary bears the
risk of default, non-performance and termination by the third
party customers. However, the applicable Peabody subsidiary must
use commercially reasonable efforts to defend its contract
rights toward the customer so that Patriot continues to maintain
the benefits of the pass-through agreement. In the course of
defending its rights, the Peabody subsidiary must also exercise
commercially reasonable efforts to avoid actions that are
detrimental to Patriot.
The Master Coal Supply Agreements involve sales of approximately
$965 million in the aggregate. They do not apply to coal
sold pursuant to Coal Supply Agreement I or Coal Supply
Agreement II (which are discussed below) or coal sales
agreements entered into directly by Patriot with third party
customers.
The Master Coal Supply Agreements cover a total of 41 contracts
which Peabody had with 36 customers as of February 29,2008. None of these contracts individually is material to
Patriot’s financial condition or results of operations. The
material terms and conditions of these contracts are summarized
below.
The terms and conditions of each underlying customer contract
(other than term, price and quantity, as described in the above
table) are substantially similar. Coal shipped under the
contracts to domestic customers is typically sold and delivered
to the customer at the mine, while export coal is typically sold
and delivered to the customer after loading in ocean-going
vessels. Payment terms vary by customer but typically range from
15-30 days
from receipt of invoice. The contracts contain provisions
requiring Patriot to deliver coal meeting quality thresholds for
characteristics such as Btu, sulfur, ash, moisture and size.
Failure to meet these specifications could result in economic
penalties, including price adjustments, the rejection of
deliveries or termination of the contracts. In some cases, the
underlying contracts also provide for a price premium if the
coal quality exceeds contractual specifications.
Some customer contracts contain provisions that allow for price
adjustments due to new laws or changes in law that affect
Patriot’s cost of production.
The customer contracts generally contain force majeure
provisions allowing temporary suspension of performance by
Patriot or the customer for the duration of specified events
caused by Acts of God or other circumstances beyond the control
of the affected party. In some cases, an extended force majeure
could lead to contract termination.
In addition to the termination events described above, the
customer contracts are generally terminable by the
non-defaulting party for any material uncured breach.
Coal
Supply Agreement I
COALSALES II, LLC, a Peabody affiliate (COALSALES II), currently
supplies approximately 2.9 million tons per year of coal to
steam coal customers with coal produced from Patriot’s
Rocklick and Big Mountain operations. To ensure continuity of
supply to its customers, COALSALES II entered into a new coal
supply agreement with Patriot (Coal Supply Agreement I). Sales
under Coal Supply Agreement I as of February 29, 2008 are
estimated to be approximately $737 million over the
remaining term of the contract.
The material terms and conditions of Coal Supply Agreement I are
as follows:
•
Patriot will generally be responsible for coordinating shipments
and the delivery of the coal into railcars for COALSALES II
customers.
•
Patriot will supply from 1,412,500 to 1,600,250 tons of coal per
contract half-year to COALSALES II through December 31,2012.
•
Conforming coal must be provided from pre-approved Patriot
production sources and shipping origins to meet specific quality
parameters in accordance with specific sampling, weighing and
analysis requirements. Non-conforming deliveries may be rejected
by COALSALES II, which could lead to suspension and agreement
termination if not remedied.
•
For Patriot coal shipments during the period from
January 1, 2008 through December 31, 2011, to entitle
COALSALES II to a first priority right of production, COALSALES
II will make a monthly prepayment to Patriot, ten (10) days
prior to the beginning of each month, in the amount of
$1,041,666 per month plus any applicable taxes and royalties
related thereto.
•
The unadjusted price for coal supplied under the agreement (also
known as the Base Price) ranges from $45.00 to $52.08 per ton
through December 31, 2012 and will be adjusted (within
certain limits and on certain conditions) to reflect changes in
cost due to new laws or regulations or changes in existing laws
or regulations.
•
To determine the Selling Price for coal, the Base Price is
adjusted upward or downward for sulfur and calorific value
quality variances from the agreement’s coal quality
specifications.
•
Payment terms are within 22 days after the end of each
half-month and COALSALES II must pay Patriot regardless of
whether or not the ultimate customer has paid COALSALES II.
•
The agreement contains force majeure provisions allowing for the
temporary suspension of performance by Patriot or the customer
for the duration of specified events beyond the control of the
affected party. Any shortfall in coal deliveries is generally
required to be made up within twelve months.
•
In general, COALSALES II will bear the risk of default,
non-performance and termination by its customers unless caused
by or attributable to Patriot. Should a COALSALES II customer
fail to
perform under its agreement with COALSALES II and damage
Patriot, COALSALES II will have the obligation to pursue its
rights and remedies against such customer for the benefit of
Patriot, as applicable.
Coal
Supply Agreement II
COALSALES, LLC, a Peabody affiliate (COALSALES), supplies coal
to the Tennessee Valley Authority pursuant to a coal supply
agreement that runs through December 31, 2011 (Underlying
Contract). COALSALES currently sources the Underlying Contract
with 3.5 million tons per year of coal produced from
Patriot’s Highland operation. To ensure continuity of
supply to its customer, COALSALES entered into a new coal supply
agreement with Patriot (Coal Supply Agreement II) for
deliveries from Highland. Sales under Coal Supply
Agreement II as of February 29, 2008 are estimated to
be approximately $448 million over the remaining term of
the contract.
The material terms and conditions of Coal Supply
Agreement II are as follows:
•
Patriot will supply coal to COALSALES through December 31,2011 and unless otherwise agreed to among the parties, COALSALES
will have no right to extend the agreement beyond such date.
•
Should the ultimate coal customer voluntarily elect to terminate
its contract with COALSALES early, COALSALES may continue to
take full delivery under its agreement with Patriot or elect to
terminate the agreement and pay to Patriot the liquidated
damages (25% of the Base Price, see below) it receives from the
ultimate coal customer. COALSALES may also terminate the
agreement with Patriot if the ultimate coal customer terminates
its agreement with COALSALES due to specified increases in
transportation costs, and no liquidated damages apply.
•
Coal is to be shipped in relatively equal monthly shipments of
290,000 tons per month with allowed variances of five (5%)
percent per month should the ultimate coal customer so elect.
The volume of coal to be shipped under the agreement may be
reduced by COALSALES, if the ultimate coal customer reduces
shipments of coal due to new environmental laws or regulations.
•
Patriot will generally be responsible for coordinating shipments
and the delivery of the coal into barges provided by the
ultimate coal customer.
•
Conforming coal must be provided from Patriot’s Highland
Mine (unless other production sources are approved by the
ultimate coal customer) to meet specific quality parameters.
Patriot is responsible for performing all sampling, weighing and
analysis requirements. Non-conforming deliveries may be rejected
by COALSALES
and/or the
ultimate coal customer, which could lead to suspension and
agreement termination if not remedied.
•
The Base Price for coal supplied under the agreement ranges from
$31.62 to $34.23 per ton through December 31, 2011 and may
be adjusted (within certain limits) to reflect changes in cost
due to new laws or regulations or changes in existing law or
regulation.
•
Payment terms are within 30 days after the unloading of
coal by the ultimate customer, or if later, the receipt of
Patriot’s invoice. Should there be any dispute of the
invoiced amount by the ultimate coal customer, COALSALES will
have the right to make a partial payment to Patriot excluding
such disputed amount.
•
Sixty (60) days after the end of each calendar quarter,
COALSALES will invoice Patriot for quality variances from the
coal specifications contained in the agreement. Such invoice
will include upward or downward price adjustments for moisture,
ash, sulfur and calorific value.
•
The agreement contains force majeure provisions allowing for the
temporary suspension of performance by Patriot or the customer
for the duration of specified events beyond the control of the
affected party. Any shortfall in coal deliveries will be made up
at Patriot’s election, subject to mutual agreement on
scheduling with the ultimate coal customer.
The Underlying Contract is generally terminable by the
non-defaulting party for any material uncured breach. In
general, COALSALES will bear the risk of default,
non-performance and termination by the end customer unless
caused by or attributable to Patriot. Should the ultimate coal
customer fail to perform under its agreement with COALSALES and
damage Patriot, COALSALES will have the obligation to pursue its
rights and remedies against the ultimate coal customer for the
benefit of Patriot, as applicable.
Tax
Separation Agreement
The tax separation agreement sets forth the responsibilities of
Peabody and Patriot with respect to, among other things,
liabilities for federal, state, local and foreign taxes for
periods before and including the spin-off, the preparation and
filing of tax returns for such periods and disputes with taxing
authorities regarding taxes for such periods. Peabody is
generally responsible for federal, state, local and foreign
income taxes of Patriot for periods before and including the
spin-off. Patriot is generally responsible for all other taxes
relating to its business. Peabody and Patriot are each generally
responsible for managing those disputes that relate to the taxes
for which each is responsible and, under certain circumstances,
may jointly control any dispute relating to taxes for which both
parties are responsible. The tax separation agreement also
provides that Patriot will have to indemnify Peabody for some or
all of the taxes resulting from the transactions related to the
distribution of Patriot common stock if it takes certain actions
and if the distribution does not qualify as tax-free under
Sections 355 and 368 of the Code.
To maintain the qualification of the distribution as tax-free
under sections 368(a)(1)(D) and 355 of the Code, there are
material limitations on transactions in which Patriot may be
involved during the two-year period following the distribution
date. Specifically, during this two-year period, Patriot has
agreed to refrain from engaging in any of the transactions
listed below unless it first obtains a private letter ruling
from the IRS or an opinion reasonably acceptable in substance to
Peabody from a tax advisor reasonably acceptable to Peabody
providing that the transaction will not affect the tax-free
treatment of the distribution and the preceding contributions of
capital.
Patriot is restricted from entering into any negotiations,
agreements or arrangements with respect to transactions or
events that may cause the spin-off to be treated as part of a
plan pursuant to which one or more persons acquire directly or
indirectly stock of Patriot representing a “50-percent or
greater interest” therein within the meaning of
Section 355(d)(4) of the Code, including such transactions
or events described below (and, for this purpose, including any
redemptions made pursuant to open market stock repurchase
programs), stock issuances pursuant to the exercise of options
or otherwise, option grants, capital contributions or
acquisitions, entering into any partnership or joint venture
arrangements or a series of such transactions or events, but not
including the spin-off.
•
Merging or consolidating with or into another corporation;
•
Liquidating or partially liquidating;
•
Selling or transferring all or substantially all of its assets
in a single transaction or series of related transactions, or
selling or transferring any portion of its assets that would
violate certain continuity requirements imposed by the
Code; and
•
Redeeming or otherwise repurchasing any of its capital stock
other than pursuant to open market stock repurchase programs
meeting certain IRS requirements.
If Patriot enters into any of these transactions, with or
without the required private letter ruling or opinion from tax
counsel, Patriot will be responsible for, and will indemnify
Peabody from and against, any tax liability resulting from any
such transaction.
Liability
Assumption Agreements and Administrative Services
Agreement
In connection with the spin-off, a subsidiary of Peabody agreed
to pay certain retiree healthcare liabilities of Patriot and its
subsidiaries arising under the Coal Industry Retiree Health
Benefit Act of 1992 (Coal Act)
and the 2007 National Bituminous Coal Wage Agreement (2007
NBCWA) and predecessor agreements, as well as retiree healthcare
liabilities relating to certain salaried employees. The terms
governing such assumptions are set forth in a Coal Act Liability
Assumption Agreement, a NBCWA Liabilities Assumption Agreement
and a Salaried Employee Liability Assumption Agreement, each
entered into among the Peabody subsidiary and the applicable
Patriot subsidiaries. Peabody guarantees the performance of its
subsidiary under these liability assumption agreements. Patriot
is secondarily liable if Peabody fails to meet the 2007 NBCWA
obligations and the salaried employee obligations.
As of December 31, 2007, the present value of the estimated
retiree healthcare liabilities to be paid by Peabody totaled
$603.4 million, including Coal Act liabilities, 2007 NBCWA
contractual liabilities and liabilities relating to salaried
employees of one of Patriot’s subsidiaries. As a result of
Peabody’s agreement to pay these liabilities,
Patriot’s retiree healthcare expense and related cash
payments were reduced significantly from historical levels
following the spin-off.
Under the Coal Act Liability Assumption Agreement, the Peabody
subsidiary agreed to pay all retiree healthcare liabilities of
Patriot and its subsidiaries under the Coal Act for employees
retiring on or after January 1, 1976 and prior to
October 1, 1994. Under the NBCWA Liability Assumption
Agreement, the Peabody subsidiary agreed to pay certain retiree
healthcare liabilities of Peabody Coal Company (a Patriot
subsidiary signatory to the 2007 NBCWA and predecessor
agreements) for employees retiring after September 30, 1994
and on or before December 31, 2006. In certain
circumstances, the Peabody subsidiary would not be responsible
for increases in retiree healthcare benefits associated with
future labor agreements entered into by Patriot. Under the
Salaried Employee Liability Assumption Agreement, the Peabody
subsidiary agreed to pay certain retiree healthcare liabilities
of Peabody Coal Company for employees retiring on or prior to
December 31, 2006.
Patriot administers the retiree healthcare benefits assumed by
the Peabody subsidiary, pursuant to an Administrative Services
Agreement entered into effective as of October 31, 2007.
The Peabody subsidiary pays Patriot a fee equal to the fair
market value of the administration of such benefits. The
Administrative Services Agreement shall remain in effect until
the termination of all of the liability assumption agreements.
Transition
Services Agreement
Peabody and Patriot entered into a transition services agreement
pursuant to which Peabody provides certain administrative and
other services to Patriot, including in the following areas:
information technology, purchasing and materials management,
accounting services, payroll, human resources, engineering,
geology, land management and environmental services. For each of
these areas, a transition service schedule summarizes the
services to be provided and the responsibilities of Peabody and
Patriot. The cost to Patriot for these services is an estimate
of fair market value rates. Patriot has the right to terminate
the transition services agreement or any class of services
provided thereunder on 60 days’ prior notice. The
agreement has an initial term of six months, and Patriot has the
option to extend for an additional term of three months and,
under certain circumstances, for another term of three months.
Patriot paid $0.9 million to Peabody in November and
December 2007 for transition services.
Employee
Matters Agreement
General
In connection with the spin-off, Patriot and Peabody entered
into an employee matters agreement, which provides for the
transition of Patriot’s employees and retirees from
Peabody’s employee plans and programs to employee plans and
programs at Patriot. The agreement also allocates responsibility
for certain employee benefit matters and liabilities after the
distribution date, including benefits for certain former
employees of Patriot’s subsidiaries. In general, and except
as described below or under the section captioned Liability
Assumption Agreements and Administrative Services Agreement,
Patriot and Peabody are responsible for all obligations and
liabilities relating to their respective current and former
employees and their dependents and beneficiaries.
Treatment
of Peabody Equity Awards held by Patriot Employees
In connection with the spin-off, each Peabody stock option that
was outstanding immediately prior to the distribution date was
adjusted based on a formula determined by Peabody’s
Compensation Committee in accordance with the terms of the
applicable stock incentive plan. Certain Peabody employees who
became Patriot executives following the spin-off held adjusted
Peabody stock options that were scheduled to vest on or before
January 3, 2008. These options continued to vest based on
such optionees’ continued employment with Patriot through
January 3, 2008. Such optionees have six months after the
earlier of January 3, 2008 or their termination from
Patriot to exercise vested options in accordance with the terms
of the applicable stock incentive plan and option agreement.
Certain Peabody employees who became Patriot executives
following the spin-off held restricted shares of Peabody common
stock. On October 22, 2007, those restricted stockholders
received the Patriot stock dividend on the same basis as all
other Peabody stockholders. In addition, restricted shares held
by these Patriot employees that were scheduled to vest on or
before January 3, 2008 continued to vest based on continued
employment with Patriot through January 3, 2008. These
restricted shares remained subject to the terms and conditions
of the applicable stock incentive plan and award agreement as in
effect immediately prior to October 31, 2007. Restricted
shares held by these Patriot employees that were scheduled to
vest after January 3, 2008 accelerated and became fully
vested on October 31, 2007.
Peabody’s Board of Directors approved certain amendments to
Peabody’s existing long term incentive stock plans,
effective as of October 31, 2007, to permit the treatment
of equity awards as outlined above.
For all other Peabody employees who hold Peabody equity awards
and became Patriot employees, an amendment to Peabody’s
long-term stock incentive plans was implemented to allow for
continued vesting under these plans.
Certain
Real Property Arrangements
Following the spin-off, Patriot and its affiliates controlled
approximately 1.3 billion tons of proven and probable coal
reserves and related surface property in West Virginia, western
Kentucky and Illinois through various means, including fee
ownership, coal leases and option agreements. Except for certain
easements, rights of access and similar rights due to the
adjacent ownership of real property in western Kentucky, no
continuing real property relationships exist between Peabody and
Patriot subsequent to the spin-off. In the future, Patriot and
Peabody may enter into other commercial real property agreements
from time to time, the terms of which will be determined at
those relevant times.
Pursuant to a Conveyance and Assumption Agreement between a
subsidiary of Patriot and several subsidiaries of Peabody, these
Peabody subsidiaries assumed certain reclamation obligations at
sites in Indiana, Illinois, Kentucky and Ohio in exchange for
equipment owned by Patriot’s subsidiary having an aggregate
book value of approximately $1.2 million as of
October 31, 2007.
Throughput
and Storage Agreement
Since 1985, Patriot’s operations have transloaded coal for
seaborne markets through Dominion Terminal Associates (DTA), a
coal transloading and ground storage facility in Newport News,
Virginia. Peabody owns a 30% interest in DTA. In connection with
the spin-off, Patriot entered into a five-year Throughput and
Storage Agreement with Peabody pursuant to which Patriot
continues to utilize the DTA facility for transloading seaborne
shipments from Central Appalachia which originate on the CSX
railroad at an agreed fair value rate. Payments under the
Throughput and Storage Agreement are estimated to be
$17.3 million over the term of the contract.
Master
Equipment Sublease Agreement
Certain mining equipment and facilities used in the Patriot
business are leased from third parties by various Peabody
affiliates. Following the spin-off, Patriot subleases this
equipment and facilities from Peabody on terms and conditions
substantially similar to the third-party lease agreements. The
sublease payments will
be approximately $17 million in 2008 and decline to
$2.2 million per year by 2011 assuming exercise of certain
buy-out options related to such equipment and facilities. After
the spin-off, all new equipment and facilities leases have been
entered into by Patriot without Peabody involvement. Upon
expiration of an underlying equipment lease, Patriot shall have
the right to exercise any applicable buy-out rights or return
the respective equipment to the lessor in accordance with the
terms of such lease. Patriot shall indemnify, defend and hold
Peabody harmless from and against any and all claims, damages,
costs and expenses related to the subleased equipment or any
breach by Patriot of the master sublease agreement or its
underlying lease agreements. Subject to the foregoing, Patriot
is responsible for acquiring and maintaining all equipment and
facilities used in the operation of its businesses following the
spin-off.
Guarantees
Patriot and its subsidiaries were guarantors with respect to
Peabody’s public debt. At spin-off, Patriot was released
from all such guarantee obligations.
Peabody currently does not guarantee any outstanding debt
obligations of Patriot or its subsidiaries. In the normal course
of business, Peabody has guaranteed the performance of Patriot
and its subsidiaries under various arrangements, including real
property leases, equipment and fixture leases, coal supply
agreements and other contracts. Those obligations which can be
quantified include payments under premises leases, equipment
leases and maintenance contracts. The total amount of such
guarantee obligations was approximately $72 million as of
December 31, 2007. Peabody also has guarantees in place
with respect to certain of Patriot’s Federal Black Lung
Benefits Act and workers’ compensation liabilities. The
total amount of such guaranteed obligations was approximately
$215 million as of December 31, 2007. For other
obligations, including guarantees of mineral and real property
leases and performance guarantees under coal supply agreements,
Peabody’s potential exposure depends upon future production
and market prices, which cannot be determined at this time.
Software
License Agreement
Pursuant to the software license agreement, Peabody granted to
Patriot a non-exclusive license, solely in connection with
Patriot’s operation of the Patriot business, to install,
copy and distribute internally, use and create improvements,
enhancements and modifications to certain proprietary software
applications. The license was conditioned upon Patriot’s
prior acquisition, at Patriot’s expense, of a license to
all third party software applications, code or other proprietary
data or information which must be on the same platform in order
for the licensed software to run. Peabody also granted the right
to copy and distribute internally, use and create improvements,
enhancements or modifications to any related documentation
developed by Peabody that pertains to the operation of the
licensed software applications.
The software license agreement continues indefinitely, subject
to certain termination rights, such as upon a change of control
of Patriot. The agreement also provides that Peabody may, but is
under no obligation to, provide Patriot with improvements,
enhancements or modifications it makes to the licensed software
applications and related documentation after the date of the
spin-off. Patriot may make its own improvements, enhancements or
modifications to the licensed software applications and related
documentation, but all intellectual property rights therein are
owned by Peabody and licensed to Patriot under this agreement.
Peabody does not provide support and maintenance services to
Patriot in connection with the licensed software applications
other than under the Transition Services Agreement. As
consideration for the license granted under the software license
agreement, Patriot paid Peabody a non-refundable upfront license
fee of $1.2 million. Patriot does not currently anticipate
that Peabody will provide it with updates, enhancements or
modifications to the licensed software applications during the
term of the software license agreement.
Common
Interest Agreement
In connection with the spin-off, Patriot and Peabody entered
into a common interest agreement, which sets forth the terms
under which Patriot will cooperate with Peabody with respect to
claims, suits, investigations or other proceedings that have
been, or that in the future could be, initiated against Patriot
or
Peabody. With the exception of situations where a conflict of
interest arises between Patriot and Peabody, under the common
interest agreement, the attorney-client privilege and the work
product doctrine will apply to all privileged information and
work product exchanged between Patriot and Peabody.
The common interest agreement provides that the parties will
share such information and documents as they deem appropriate
under the law with the other parties and their officers,
directors, employees, advisors or agents, so long as such person
is informed by the applicable party of the confidential nature
of the shared information and documents and is obligated to
treat such information and documents in accordance with the
provisions of the common interest agreement. If any third party
requests, by summons, subpoena or otherwise, the production of
any privileged documents from any party to the common interest
agreement, the recipient of such demand will immediately notify
the other party and will take all reasonable steps to permit the
assertion of all applicable rights and privileges with respect
to the documents and information subject to the request.
Policy
for Approval of Related Person Transactions
The Nominating & Governance Committee is responsible
for reviewing and approving all transactions between Patriot and
certain “related persons,” such as its executive
officers, directors and owners of more than 5% of Patriot’s
voting securities in accordance with its written policy. Such
transactions are generally reviewed before entry into the
related person transaction. In addition, if any of its specified
officers becomes aware of a related party transaction that has
not been previously approved or ratified, such related person
transaction will be promptly submitted thereafter to the
Committee for its review. In reviewing a transaction, the
Committee considers the relevant facts and circumstances,
including the benefits to Patriot, any impact on director
independence and whether the terms are consistent with a
transaction available on an arms-length basis. Only those
related person transactions that are determined to be in (or not
inconsistent with) the best interests of Patriot and
stockholders are permitted to be approved. No member of the
Committee may participate in any review of a transaction in
which the member or any of his or her family members is the
related person. A copy of the policy can be found on
Patriot’s website (www.patriotcoal.com) by clicking on
“Investors,” then “Corporate Governance,”
and then “Related Party Transactions” and is available
in print to any stockholder who requests it. Information on the
website is not considered part of this proxy
statement/prospectus.
Director
Independence
As required by the rules of the New York Stock Exchange, the
Board of Directors will evaluate the independence of its members
at least annually, and at other appropriate times when a change
in circumstances could potentially impact the independence or
effectiveness of one or more directors (e.g., in connection with
a change in employment status or other significant changes).
This process is administered by the Nominating &
Governance Committee which consists entirely of directors who
are independent under applicable New York Stock Exchange rules.
After carefully considering all relevant relationships with
Patriot, the Nominating & Governance Committee submits
its recommendations regarding independence to the full Board,
which then makes a determination with respect to each director.
In making independence determinations, the
Nominating & Governance Committee and the Board
consider all relevant facts and circumstances, including
(1) the nature of any relationships with Patriot,
(2) the significance of the relationship to Patriot, the
other organization and the individual director, (3) whether
or not the relationship is solely a business relationship in the
ordinary course of Patriot’s and the other
organization’s businesses and does not afford the director
any special benefits, and (4) any commercial, industrial,
banking, consulting, legal, accounting, charitable and familial
relationships. For purposes of this determination, the Board
deems any relationships that have expired for more than three
years to be immaterial.
After considering the standards for independence adopted by the
New York Stock Exchange and various other factors as described
herein, the Board of Directors has determined that all directors
other than Messrs. Whiting and Engelhardt are independent.
None of the directors, other than Messrs. Whiting and
Engelhardt, receives any compensation from Patriot other than
customary director and committee fees.
The Board has determined that Directors Adorjan, Brown,
Lushefski and Scharf are independent, based upon the fact that
they have no relationships with Patriot (other than serving as
directors). The Board has also
determined that Mr. Viets is independent after evaluating
his relationship with Patriot and concluding that such
relationship is immaterial. Such relationship is outlined below.
Mr. Viets serves as a director of RLI Corp., a specialty
property and casualty insurer that provides marine excess
liability insurance coverage to Patriot for an annual premium of
$8,400. The Board has concluded that this relationship is not
material since this service is offered to Patriot on the same
general terms and conditions as other large commercial customers
and was provided to Patriot prior to Mr. Viets joining the
Board. Patriot’s directors did not solicit these commercial
relationships and were not involved in any related discussions
or deliberations.
Magnum
Nominees for Appointment to Patriot’s Board of Directors if
the Merger is Consummated
The nominees initially designated by the stockholder
representative under the voting agreement for appointment to
Patriot’s board of directors are Robb E. Turner and
John F. Erhard, each of whom is affiliated with the
ArcLight Funds. The nominating and governance committee of
Patriot’s board of directors has determined that as of the
date of the voting agreement, Messrs. Turner and Erhard
would, to the reasonable satisfaction of the nominating and
governance committee of Patriot’s board of directors, be
“independent directors” under the New York Stock
Exchange’s listing standards, disregarding certain
disclosed relationships. However, Messrs. Turner and Erhard
may not satisfy the criteria to be “independent
directors” as a result of certain relationships between the
ArcLight Funds and Magnum. See “Ancillary Transaction
Documents — Voting Agreement — Board of
Directors of Patriot Following the Merger”and
“Risk Factors — Risk Factors Relating to the
Merger — Directors appointed pursuant to the voting
agreement may not satisfy the criteria to be “independent
directors” under the New York Stock Exchange’s listing
standards.”
Pursuant to certain agreements entered into by Trout, a
subsidiary of Magnum, and certain of its affiliates (referred to
as the Trout entities) and Christopher Cline, Cline granted to
the Trout entities an option to purchase interests in certain
coal mining reserves procured by Cline in exchange for an agreed
payment amount. Such amount was to be payable to Cline
periodically over time at a rate of an agreed number of cents
per clean ton sold of coal mined by certain of the Trout
entities until the total amount was paid in full. These periodic
payments are referred to in this proxy statement/prospectus as
royalty streams. In January 2007, Cline assigned his rights to
the royalty streams to RoyaltyCo, LLC, a subsidiary owned by the
ArcLight Funds, Magnum’s majority stockholder, for a price
of $19 million. The amount payable in any payment period
will depend on the volume of coal mined by the Trout entities.
The total amounts paid in respect of such royalty streams under
these arrangements were approximately $3.4 million in 2004,
$2.9 million in 2005, $2.7 million in 2006 and
$2.1 million in 2007. The aggregate amount of royalty
streams that remains to be paid is approximately
$72.4 million as of February 29, 2008. On
March 26, 2008, RoyaltyCo, LLC, Magnum, Trout, New Trout
Coal Holdings II, LLC and Panther LLC entered into an amended
and restated royalty clarification letter agreement, clarifying
the terms of the royalty streams referred to above.
Pursuant to the amended and restated royalty clarification
letter agreement, Magnum agreed, among other things, that until
the full amount of remaining royalty payments owing to RoyaltyCo
has been paid, Magnum will not transfer or dispose of any of its
ownership interests in the applicable subsidiaries or the coal
reserves owned or leased by the applicable subsidiaries without
the prior written consent of RoyaltyCo, which consent will not
be unreasonably withheld, delayed or conditioned. However, after
the effective time of the merger, RoyaltyCo’s consent will
not be required for any such transfer if (1) Magnum has
provided prior notice of the transfer to RoyaltyCo, (2) the
transferee has unconditionally agreed with RoyaltyCo to pay the
applicable royalty streams on the same terms and conditions as
apply to Magnum, to provide RoyaltyCo with access to certain
information and not to transfer the applicable properties
without the transferee thereof agreeing in writing to be bound
by the terms and conditions of the letter agreement and
(3) Patriot unconditionally guarantees the payment
obligations of the transferee.
Financial
Advisor
Citigroup Global Markets Inc., a non-controlled affiliate of the
Citigroup Capital Partners II affiliates that are
stockholders of Magnum, is acting as a financial advisor to
Magnum in respect of the proposed merger between Magnum and
Patriot described in this proxy statement/prospectus.
Affiliate
Loans
ArcLight I advanced Magnum $22 million in funding for
operations through March 2006. All such loans were repaid prior
to December 31, 2007.
Cascade
Side Letter
Magnum issued a letter to one of its institutional stockholders,
Cascade Investment, L.L.C. (Cascade), dated April 2, 2008,
pursuant to which Magnum agreed to reimburse Cascade in
connection with certain expenses related to any Hart Scott
Rodino Act filings required to be made by it in connection with
the merger. The letter specifies that such reimbursement shall
not exceed the sum of: (i) the amount of the filing fees
actually paid respect to such filing and (ii) $40,000.
On March 26, 2008, Magnum issued $100 million of
senior subordinated second lien convertible notes, which we
refer to as the Magnum convertible notes, to a number of
existing stockholders (including, among others, several of its
officers). The principal amounts of the Magnum convertible notes
issued to Magnum’s stockholders is summarized in the
following table:
Institutional Stockholders
ArcLight Energy Partners Fund I, L.P.
$
15,000,000.00
ArcLight Energy Partners Fund II, L.P.
$
48,214,596.00
Caisse De Depot Et Placement Du Quebec
$
9,600,000.00
Cascade Investment, L.L.C.
$
11,588,720.00
Citigroup Capital Partners II Employee Master Fund,
L.P.
$
2,676,285.57
Citigroup Capital Partners II 2006 Citigroup Investment,
L.P.
$
2,382,601.53
Citigroup Capital Partners II Onshore, L.P.
$
1,208,231.36
Citigroup Capital Partners II Cayman Holdings, L.P.
$
1,513,948.54
Howard Hughes Medical Institute
$
7,585,617.00
Individual Stockholders
H. Douglas Dahl
$
20,000.00
Officers
Paul Vining
$
154,000.00
David Turnbull
$
20,000.00
Richard Verheij
$
25,000.00
B. Scott Spears
$
11,000.00
Total Notes
$
100,000,000.00
The Magnum convertible notes bear interest at a rate of 10% per
annum payable quarterly in arrears solely in kind (calculated on
the basis of twelve
30-day
months, in a
360-day
year).
The Magnum convertible notes (including all unpaid principal and
accrued and unpaid interest thereon) shall automatically be
convertible into shares of common stock of Magnum, at a
conversion price per share equal to the merger conversion price
in the event that the merger with Patriot is consummated (and
such conversion shares shall be exchanged for Patriot common
stock as part of the 11,901,729 shares to be exchanged
under the merger). The merger conversion price means the lesser
of (a) $7.50 and (b) (x) the positive difference of
the value of Magnum minus the then unpaid principal of
the convertible notes and all accrued and unpaid interest
thereon (calculated immediately prior to the effectiveness of
the merger) divided by (y) the number of shares of
Magnum common stock issued and outstanding immediately prior to
the effectiveness of the merger, not including the shares to be
issued on conversion of the convertible notes. The value of
Magnum means, immediately prior to the effectiveness of the
merger, (a) the aggregate number of shares of Patriot
common stock to be issued to Magnum’s stockholders as
consideration for their Magnum common stock upon the
effectiveness of the merger, including the Magnum common stock
to be issued on conversion of the Magnum convertible notes,
multiplied by (b) the volume-weighted average price of the
Patriot common stock on the New York Stock Exchange for all
trades executed during the ten trading days immediately
preceding the effectiveness of the merger (based on trading data
as reported on Bloomberg Financial Services, Inc.).
If the merger is not consummated, the Magnum convertible notes
(including all unpaid principal and accrued and unpaid interest
thereon) shall be converted into Magnum common stock under
certain prescribed circumstances. Additionally, if the merger is
not consummated and the Magnum convertible notes are not
converted into Magnum common stock, the convertible notes would
remain outstanding as indebtedness of
Magnum, with a bullet payment maturity date falling on the date
that is seven days prior to the fifth anniversary of the closing
under the Magnum convertible note purchase agreement.
The Magnum convertible notes are secured by a second priority
lien on all the assets of Magnum that are now subject to a first
priority lien in favor of the secured parties under
Magnum’s existing credit agreement and are subordinated in
right of payment and in right of collateral security to
Magnum’s obligations under Magnum’s existing credit
agreement.
Of the aggregate $100 million raised by Magnum pursuant to
the issuance of the Magnum convertible notes, $80 million
was used to prepay amounts then outstanding under Magnum’s
existing term loan facility, and $20 million was used to
prepay amounts then outstanding under Magnum’s revolving
credit facility (thereby providing Magnum with $20 million
of revolver availability for its immediate liquidity needs prior
to the closing of the merger).
The following summary of the capital stock of Patriot is subject
in all respects to applicable Delaware law, the Patriot
certificate of incorporation, Patriot’s by-laws and
Patriot’s rights agreement. See also “Comparison of
Rights of Common Stockholders of Magnum and Common Stockholders
of Patriot”.
Authorized
and Outstanding Capital Stock
Patriot’s authorized capital stock consists of
100 million shares of common stock, par value $0.01 per
share, and 10 million shares of preferred stock, par value
$0.01 per share. The authorized preferred shares include
1 million shares of Series A Junior Participating
Preferred Stock. At the close of business of June 16, 2008,
approximately 26,755,877 shares of common stock were issued
and outstanding and no shares of preferred stock were issued and
outstanding.
Common
Stock
Dividends
Subject to preferences that may be applicable to any series of
preferred stock, the owners of Patriot common stock may receive
dividends when declared by the board of directors out of funds
legally available for the payment of dividends. All decisions
regarding the declaration and payment of dividends will be
evaluated from time to time in light of Patriot’s financial
condition, earnings, growth prospects, funding requirements,
applicable law and other factors the Patriot board of directors
deems relevant.
Voting
Rights
Each share of common stock is entitled to one vote in the
election of directors and all other matters submitted to
stockholder vote. Except as otherwise required by law or
provided in any resolution adopted by Patriot’s board of
directors with respect to any series of preferred stock, the
holders of Patriot common stock possess all voting power. No
cumulative voting rights exist. In general, all matters
submitted to a meeting of stockholders, other than as described
below, are decided by vote of a majority of the shares of
Patriot’s common stock present in person or represented by
proxy at the meeting and entitled to vote on the matter.
Directors are elected by a plurality of the shares of
Patriot’s common stock present in person or represented by
proxy at the meeting and entitled to vote on the election of
directors.
The approval of at least 75% of the shares of Patriot’s
outstanding common stock entitled to vote is necessary to
approve certain actions, such as amending the provisions of
Patriot’s by-laws or certificate of incorporation relating
to the plurality voting standard for the election of directors,
the number and manner of election and removal of directors, the
classified nature of Patriot’s board of directors, the
manner of filling vacancies thereon or prohibiting action by the
stockholders by written consent, or electing a director to fill
a vacancy if the stockholders’ power to do so is expressly
conferred by applicable Delaware law. Other amendments to
Patriot’s by-laws and certificate of incorporation, and
certain extraordinary transactions (such as a merger or
consolidation involving Patriot or a sale of all or
substantially all of the assets of Patriot), must be approved by
a majority of Patriot’s outstanding common stock entitled
to vote.
Certain holders of Magnum common stock who receive Patriot
common stock in the merger will be subject to certain
restrictions on their ability to vote their shares of Patriot
common stock. See “Ancillary Transaction
Agreements — Voting Agreement — Voting
Obligations of Certain Magnum Stockholders.”
Liquidation
Rights
If Patriot liquidates, dissolves or
winds-up its
business, whether voluntarily or not, Patriot’s common
stockholders will share equally in the distribution of all
assets remaining after payment to creditors and preferred
stockholders.
The common stock does not carry preemptive or similar rights.
Listing
Patriot’s common stock is listed on the New York Stock
Exchange under the trading symbol “PCX”.
Transfer
Agent and Registrar
The transfer agent and registrar for Patriot’s common stock
is American Stock Transfer & Trust Company.
Preferred
Stock
Patriot’s certificate of incorporation authorizes
Patriot’s board of directors, without the approval of
stockholders, to fix the designation, powers, preferences and
rights of one or more series of preferred stock, which may be
greater than those of the common stock. The issuance of shares
of preferred stock, or the issuance of rights to purchase shares
of preferred stock, could be used to discourage an unsolicited
acquisition proposal. See “— Anti-Takeover
Effects of Provisions of Delaware Law and Patriot’s Charter
and By-Laws.”
Authorized
but Unissued Capital Stock
Delaware law does not require stockholder approval for any
issuance of authorized shares. However, the listing requirements
of the New York Stock Exchange, which would apply so long as the
common stock remains listed on the New York Stock Exchange,
require stockholder approval of certain issuances equal to or
exceeding 20% of the then-outstanding number of shares of common
stock. These additional shares may be used for a variety of
corporate purposes, including future public offerings, to raise
additional capital or to facilitate acquisitions.
One of the effects of the existence of unissued and unreserved
common stock or preferred stock may be to enable Patriot’s
board of directors to issue shares to persons friendly to
current management, which issuance could render more difficult
or discourage an attempt to obtain control of Patriot by means
of a merger, tender offer, proxy contest or otherwise, and
thereby protect the continuity of Patriot’s management and
possibly deprive the stockholders of opportunities to sell their
shares of common stock at prices higher than prevailing market
prices.
Anti-Takeover
Effects of Provisions of Delaware Law and Patriot’s Charter
and By-Laws
Delaware
Law
Patriot is subject to the provisions of Section 203 of the
Delaware General Corporation Law, which applies to a broad range
of business combinations between a Delaware corporation and an
interested stockholder. The Delaware law definition of business
combination includes mergers, sales of assets, issuances of
voting stock and certain other transactions. An interested
stockholder is defined as any person who owns, directly or
indirectly, 15% or more of the outstanding voting stock of a
corporation.
Section 203 prohibits a corporation from engaging in a
business combination with an interested stockholder for a period
of three years following the date on which the stockholder
became an interested stockholder, unless:
•
the board of directors approved the business combination before
the stockholder became an interested stockholder, or the board
approved the transaction that resulted in the stockholder
becoming an interested stockholder;
•
upon completion of the transaction which resulted in the
stockholder becoming an interested stockholder, such stockholder
owned at least 85% of the voting stock outstanding when the
transaction
began other than shares held by directors who are also officers
and other than shares held by certain employee stock
plans; or
•
the board approved the business combination after the
stockholder became an interested stockholder and the business
combination was approved at a meeting by at least two-thirds of
the outstanding voting stock not owned by such stockholder.
These limitations on business combinations with interested
stockholders do not apply to a corporation that does not have a
class of stock listed on a national securities exchange,
authorized for quotation on an interdealer quotation system of a
registered national securities association or held of record by
more than 2,000 stockholders.
The provisions of Section 203 may encourage companies
interested in acquiring Patriot to negotiate in advance with
Patriot’s board of directors because the stockholder
approval requirement would be avoided if Patriot’s board of
directors approves either the business combination or the
transaction which results in the stockholder becoming an
interested stockholder. These provisions also may have the
effect of preventing changes in Patriot’s board of
directors and may make it more difficult to accomplish
transactions which stockholders may otherwise deem to be in
their best interests.
Patriot’s certificate of incorporation and by-laws contain
provisions that could make more difficult the acquisition of
Patriot by means of a tender offer, a proxy contest or
otherwise. These provisions are summarized below.
Classes of Preferred Stock. Under
Patriot’s certificate of incorporation, Patriot’s
board of directors has the full authority permitted by Delaware
law to determine the voting rights, if any, and designations,
preferences, limitations and special rights of any class or any
series of any class of the preferred stock, which may be greater
than those of Patriot’s common stock. The effects of the
issuance of a new series or class of preferred stock might
include, among other things, restricting dividends on
Patriot’s common stock, diluting the voting power of
Patriot’s common stock, impairing the liquidation rights of
Patriot’s common stock, or delaying or preventing a change
in control of Patriot.
Removal of Directors; Filling
Vacancies. Patriot’s certificate of
incorporation and by-laws provide that directors may be removed
only for cause and only upon the affirmative vote of holders of
at least 75% of the voting power of all the outstanding shares
of stock entitled to vote generally in the election of
directors, voting together as a single class. Additionally, only
Patriot’s board of directors will be authorized to fix the
number of directors and to fill any vacancies on Patriot’s
board. These provisions could make it more difficult for a
potential acquirer to gain control of Patriot’s board.
Stockholder Action. Patriot’s certificate
of incorporation and by-laws provide that stockholder action can
be taken only at an annual or special meeting of stockholders
and may not be taken by written consent in lieu of a meeting.
Patriot’s certificate of incorporation and by-laws provide
that special meetings of stockholders can be called only by
Patriot’s Chief Executive Officer or pursuant to a
resolution adopted by Patriot’s board. Stockholders are not
permitted to call a special meeting or to require that the Board
call a special meeting of stockholders.
Advance Notice Procedures. Patriot’s
by-laws establish an advance notice procedure for stockholders
to make nominations of candidates for election as directors, or
bring other business before an annual or special meeting of
stockholders. This notice procedure provides that only persons
who are nominated by, or at the direction of Patriot’s
board, the chairman of the board, or by a stockholder who has
given timely written notice to the secretary of Patriot prior to
the meeting at which directors are to be elected, will be
eligible for election as directors. This procedure also requires
that, in order to raise matters at an annual or special meeting,
those matters be raised before the meeting pursuant to the
notice of meeting Patriot delivers or by, or at the direction
of, the chairman or by a stockholder who is entitled to vote at
the meeting and who has given timely written notice to the
secretary of Patriot of his intention to raise those matters at
the annual meeting. If the chairman or other officer presiding
at a meeting determines that a person was not nominated, or
other
business was not brought before the meeting, in accordance with
the notice procedure, that person will not be eligible for
election as a director, or that business will not be conducted
at the meeting.
Classified board of directors. Patriot’s
certificate of incorporation provides for Patriot’s board
to be divided into three classes of directors, as nearly equal
in number as possible, serving staggered terms. Approximately
one-third of Patriot’s board will be elected each year.
Under Section 141 of the Delaware General Corporation Law,
directors serving on a classified Board can only be removed for
cause. The initial term of Class I directors expires in
2008, the initial term of Class II directors expires in
2009 and the initial term of Class III directors expires in
2010. After the initial term of each class, Patriot’s
directors will serve three-year terms. At each annual meeting of
stockholders, a class of directors will be elected for a
three-year term to succeed the directors of the same class whose
terms are then expiring. Patriot’s board currently consists
of seven directors. See “Ancillary Transaction
Agreements — Voting Agreement — Board of
Directors of Patriot Following the Merger”for changes
that will occur to the Patriot board of directors if the merger
is consummated.
The provision for a classified board could prevent a party that
acquires control of a majority of the outstanding voting stock
from obtaining control of Patriot’s board until the second
annual stockholders meeting following the date the acquiror
obtains the controlling stock interest. The classified board
provision could have the effect of discouraging a potential
acquiror from making a tender offer for Patriot’s shares or
otherwise attempting to obtain control of Patriot and could
increase the likelihood that Patriot’s incumbent directors
will retain their positions.
Amendments. Patriot’s certificate of
incorporation provides that the affirmative vote of the holders
of at least 75% of the voting power of the outstanding shares
entitled to vote, voting together as a single class, is required
to amend the provisions of Patriot’s certificate of
incorporation relating to the prohibition of stockholder action
without a meeting, the number, election and term of
Patriot’s directors, the classified board and the removal
of directors. Patriot’s certificate of incorporation
further provides that Patriot’s by-laws may be amended by
Patriot’s board or by the affirmative vote of the holders
of at least 75% of the outstanding shares entitled to vote,
voting together as a single class.
Rights
Agreement
Patriot’s board of directors adopted a rights agreement
dated October 22, 2007. Under the rights agreement, one
preferred share purchase right was issued for each outstanding
share of common stock.
In connection with the entry into the merger agreement, Patriot
amended its rights agreement on April 2, 2008 to render it
inapplicable to the issuance of Patriot common stock to the
holders of Magnum common stock pursuant to the merger, and to
provide that no Magnum stockholder will be deemed to have
acquired beneficial ownership of 15% or more of Patriot’s
outstanding common stock for purposes of the rights agreement
solely as a result of the merger. See “The Merger
Agreement — Patriot Rights Agreement
Amendment”.
Purchase
Price
Once the rights become exercisable, each right will entitle the
registered holder to purchase from Patriot one one-hundredth of
a share of Patriot’s Series A Junior Participating
Preferred Stock, or preferred shares, par value $0.01 per share,
at a price of $125 per one one-hundredth of a preferred share,
subject to adjustment.
Flip-In
In the event that any person or group of affiliated or
associated persons acquires beneficial ownership of 15% or more
of Patriot’s outstanding common stock, each holder of a
right, other than rights beneficially owned by the acquiring
person (which will thereafter be void), will thereafter have the
right to receive upon exercise that number of shares of
Patriot’s common stock having a market value of two times
the exercise price of the right.
If Patriot is acquired in a merger or other business combination
transaction or 50% or more of Patriot’s combined assets or
earning power are sold after a person or group acquires
beneficial ownership of 15% or more of Patriot’s
outstanding common stock, each holder of a right (other than
rights beneficially owned by the acquiring person, which will be
void) will thereafter have the right to receive that number of
shares of common stock of the acquiring company which at the
time of such transaction will have a market value of two times
the exercise price of the right.
Distribution
Date
The distribution date is the earlier of: (1) 10 days
following a public announcement that a person or group of
affiliated or associated persons have acquired beneficial
ownership of 15% or more of Patriot’s outstanding common
stock; or (2) 10 business days (or such later date as may
be determined by action of Patriot’s board of directors
prior to such time as any person or group of affiliated persons
acquires beneficial ownership of 15% or more of Patriot’s
outstanding common stock) following the commencement of, or
announcement of an intention to make, a tender offer or exchange
offer the consummation of which would result in the beneficial
ownership by a person or group of 15% or more of Patriot’s
outstanding common stock.
Transfer
and Detachment
Until the distribution date, the rights will be evidenced by
book entry in Patriot’s direct registration system. Until
the distribution date (or earlier redemption or expiration of
the rights), the rights will be transferred with and only with
the common stock, and transfer of those shares will also
constitute transfer of the rights.
Exercisability
The rights are not exercisable until the distribution date. The
rights will expire at the earliest of (1) October 22,2017, unless that date is extended, (2) the time at which
Patriot redeems the rights, as described below, or (3) the
time at which Patriot exchanges the rights, as described below.
Adjustments
The purchase price payable, and the number of preferred shares
or other securities or property issuable, upon exercise of the
rights are subject to adjustment from time to time to prevent
dilution in the event of stock dividends, stock splits,
reclassifications, or certain distributions with respect to
preferred shares. The number of outstanding rights and the
number of one one-hundredths of a preferred share issuable upon
exercise of each right are also subject to adjustment if, prior
to the distribution date, there is a stock split of
Patriot’s common stock or a stock dividend on
Patriot’s common stock payable in common stock or
subdivisions, consolidations or combinations of Patriot’s
common stock. With certain exceptions, no adjustment in the
purchase price will be required until cumulative adjustments
require an adjustment of at least 1% in the purchase price.
Preferred
Shares
Preferred shares purchasable upon exercise of the rights will
not be redeemable. Each preferred share will be entitled to the
greater of (a) a minimum preferential quarterly dividend
payment of $1.00 per share and (b) 100 times the aggregate
dividend declared per share of common stock, subject to
adjustment. In the event of liquidation, the holders of the
preferred shares will be entitled to a minimum preferential
liquidation payment of $100 per share together with an aggregate
payment of 100 times the payment made per share of common stock.
Each preferred share will have 100 votes, voting together with
the common stock. Finally, in the event of any merger,
consolidation or other transaction in which shares of
Patriot’s common stock are exchanged, each preferred share
will be entitled to receive 100 times the amount received per
share of common stock. These rights are protected by customary
anti-dilution provisions.
The value of the one one-hundredth interest in a preferred share
purchasable upon exercise of each right should, because of the
nature of the preferred shares’ dividend, liquidation and
voting rights, approximate the value of one share of
Patriot’s common stock.
Exchange
At any time after any person or group acquires beneficial
ownership of 15% or more of Patriot’s outstanding common
stock, and prior to the acquisition by such person or group of
beneficial ownership of 50% or more of Patriot’s
outstanding common stock, Patriot’s board of directors may
exchange the rights (other than rights owned by the acquiring
person, which will have become void), in whole or in part, at an
exchange ratio of one share of Patriot’s common stock, or
one one-hundredth of a preferred share (subject to adjustment).
Redemption
At any time prior to any person or group acquiring beneficial
ownership of 15% or more of Patriot’s outstanding common
stock, Patriot’s board of directors may redeem the rights
in whole, but not in part, at a price of $0.001 per right. The
redemption of the rights may be made effective at such time on
such basis with such conditions as Patriot’s board in its
sole discretion may establish. Immediately upon any redemption
of the rights, the right to exercise the rights will terminate
and the only right of the holders of rights will be to receive
the redemption price.
Amendments
The terms of the rights may be amended by Patriot’s board
of directors without the consent of the holders of the rights,
including an amendment to lower certain thresholds described
above to not less than 10%, except that the board may not reduce
or cancel the redemption price and from and after such time as
any person or group of affiliated or associated persons acquires
beneficial ownership of 15% or more of Patriot’s
outstanding common stock, no such amendment may adversely affect
the interests of the holders of the rights.
Rights
of Holders
Until a right is exercised, the holder thereof, as such, will
have no rights as a stockholder of Patriot’s company,
including, without limitation, the right to vote or to receive
dividends.
Anti-takeover
Effects
The rights have certain anti-takeover effects. If the rights
become exercisable, the rights will cause substantial dilution
to a person or group that attempts to acquire Patriot on terms
not approved by Patriot’s board of directors, except
pursuant to any offer conditioned on a substantial number of
rights being acquired. The rights should not interfere with any
merger or other business combination approved by Patriot’s
board since the rights may be redeemed by Patriot at a nominal
price prior to the time that a person or group has acquired
beneficial ownership of 15% or more of Patriot’s common
stock. Thus, the rights are intended to encourage persons who
may seek to acquire control of Patriot to initiate such an
acquisition through negotiations with Patriot’s board.
However, the effect of the rights may be to discourage a third
party from making a partial tender offer or otherwise attempting
to obtain a substantial equity position in Patriot’s equity
securities or seeking to obtain control of Patriot. To the
extent any potential acquirors are deterred by the rights, the
rights may have the effect of preserving incumbent management in
office.
Patriot and Magnum are each Delaware corporations subject to the
provisions of the Delaware General Corporation Law, which we
refer to as Delaware law. The rights of Patriot’s
stockholders are currently governed principally by the Patriot
certificate of incorporation, the Patriot by-laws, the Patriot
rights agreement and Delaware law. The merger will not affect
the rights of Patriot’s stockholders.
The rights of holders of Magnum common stock are currently
governed principally by:
•
Delaware law;
•
Magnum’s restated certificate of incorporation, which we
refer to in this proxy statement/prospectus as Magnum’s
charter;
•
Magnum’s restated by-laws, which we refer to in this proxy
statement/prospectus as Magnum’s bylaws; and
•
Magnum’s stockholders’ agreement dated as of
March 21, 2006 among Magnum and certain Magnum stockholders
party thereto, which we refer to in this proxy
statement/prospectus as the Magnum stockholders agreement.
As a result of the merger, holders of Magnum common stock who
receive Patriot common stock will have the rights and privileges
of Patriot stockholders governed principally by the Patriot
certificate of incorporation, the Patriot by-laws, the Patriot
rights agreement and Delaware law. In addition, certain holders
of Magnum common stock who receive Patriot common stock will
have certain rights and be subject to certain obligations under
the voting agreement, as described under “Ancillary
Transaction Agreements — Voting Agreement”.
While both Magnum and Patriot are Delaware corporations, there
are certain material differences between the rights of holders
of Magnum common stock and the rights of holders of Patriot
common stock as of the date of this proxy statement/prospectus.
The following description summarizes the material differences
between the rights of Magnum stockholders and Patriot
stockholders but does not purport to be a complete statement of
all those differences, or a complete description of the specific
provisions referred to in this summary. The identification of
specific differences is not intended to indicate that other
equally or more significant differences do not exist.
Public
Market
Magnum
Magnum common stock is not listed on any national securities
exchange, such as the New York Stock Exchange or NASDAQ, and
accordingly, there is no public market for Magnum common stock.
Patriot
Patriot’s common stock is listed on the New York Stock
Exchange under the trading symbol “PCX”. Shares
of Patriot common stock to be issued to holders of Magnum common
stock in the merger will be, subject in the case of Magnum
stockholders party to the voting agreement, to certain
contractual
lock-up
agreements discussed under “Ancillary Transaction
Agreements — Voting Agreement”in this proxy
statement/prospectus, able to be sold without restriction on the
New York Stock Exchange by the former stockholders of Magnum who
are non-affiliates of Patriot.
Capitalization
Magnum
Under Magnum’s charter, Magnum may issue up to
101 million shares of capital stock, of which
100 million shares of Magnum common stock may be issued (of
which up to 3 million shares may be
restricted stock to be issued to employees and directors of, and
consultants to, Magnum under Magnum’s equity compensation
plans) and 1 million shares of preferred stock may be
issued. As of the date of this proxy statement/prospectus,
51,670,642 shares of Magnum common stock were issued and
outstanding and no shares of Magnum’s preferred stock were
issued and outstanding.
Patriot
Patriot’s authorized capital stock is described under
“Description of Patriot Capital Stock.”
Magnum
Stockholders Agreement
The Magnum stockholders agreement provides for, among other
things, negative covenants requiring the consent of certain of
Magnum’s stockholders prior to Magnum taking certain
actions, transfer restrictions (including tag-along and
drag-along rights, as well as a right of first refusal procedure
as a condition to any transfer of Magnum common stock by a
stockholder party to the agreement), a right of first refusal in
favor of the Magnum stockholders party to the agreement in
respect of the primary issuance of equity securities by Magnum,
and other terms and conditions customary for private company
stockholder agreements. Magnum and the stockholders party to the
agreement, in connection with the execution and delivery of the
merger agreement, agreed that the Magnum stockholders agreement
will terminate at the effective time of the merger.
Magnum stockholders will not, in respect of the Patriot common
stock to be issued in connection with the merger, have the
contractual rights of the stockholders set forth in the Magnum
stockholders agreement. Certain holders of Magnum common stock
who receive Patriot common stock will have certain rights and be
subject to certain obligations under the voting agreement and
the registration rights agreement, as described under
“Ancillary Transaction Agreements.”
Patriot’s rights agreement is described under
“Description of Patriot Capital Stock.”
Number,
Election, Vacancy and Removal of Directors
Magnum
Magnum’s bylaws provide that the total number of Magnum
directors will be not less than 1 and not more than 15, as
determined by the Magnum board from time to time. Magnum
currently has 6 directors. The Magnum stockholders
agreement specifies that the composition of Magnum’s board
of directors shall be designated as follows: (1) three
directors are designated by the ArcLight Funds, (2) one
director shall be Magnum’s chief executive officer,
(3) one director is designated by the non-management
investors party to the Magnum stockholders agreement and
(4) one independent director that is designated by
stockholders holding at least 66.67% of Magnum’s common
stock. Magnum directors are elected at each annual meeting of
stockholders to serve until the next annual meeting, unless
elected by written consent in lieu of an annual meeting. Neither
Magnum’s charter nor its by-laws provides for cumulative
voting in the election of directors.
Under Magnum’s stockholders’ agreement, if there is a
vacancy on the board of directors, the stockholder who initially
designated the director is entitled to designate a replacement
director. If the director was not designated by stockholders
pursuant to the Magnum stockholders agreement, then such vacancy
may be filled by a majority vote of the directors then in
office. Under the Magnum stockholders agreement, directors may
be removed, either with or without cause, by the stockholder
that originally designated such director. If a director is
removed by the stockholder that initially selected the director,
such stockholder is entitled to designate a replacement
director. Both the Magnum stockholders agreement and its by-laws
allow for the
appointment of observers at its board meetings (which observers
represent key stockholders party to the Magnum stockholders
agreement).
Patriot
The applicable provisions relating to the number, election,
vacancy and removal of Patriot directors are described under
“Description of Patriot Capital Stock.”
Amendments
to Charter Documents
Magnum
Under Delaware law, a proposed amendment to a corporation’s
certificate of incorporation requires approval by its board of
directors and adoption by an affirmative vote of a majority of
the outstanding stock entitled to vote on the amendment.
Magnum’s charter provides that it may be amended in any
manner prescribed by law, subject to the Magnum stockholders
agreement, which requires the affirmative vote of at least 75%
of the stockholders party to the Magnum stockholders agreement
whenever the proposed amendment adversely affects the rights of
Magnum’s common stockholders.
Patriot
Patriot’s certificate of incorporation may be amended as
described under “Description of Patriot Capital
Stock.”
Subject to the Magnum stockholders agreement, which requires the
affirmative vote of at least 75% of the stockholders party to
the Magnum stockholders agreement whenever a proposed amendment
to the bylaws would adversely affect the rights of Magnum’s
common stockholders, Magnum’s bylaws may be amended by
(1) an affirmative vote of at least a majority of the
entire board of directors or (2) the affirmative vote of
the holders of at least 80% of the voting power of the shares
entitled to vote in connection with the election of directors.
Patriot
Patriot’s by-laws may be amended as described under
“Description of Patriot Capital Stock.”
Action by
Written Consent
Magnum
Under Magnum’s bylaws and Section 228 of Delaware law,
Magnum stockholders may take any action required or permitted to
be taken at any annual or special meeting of stockholders
without a meeting, without prior notice and without a vote, if a
written consent setting forth the action so taken is signed by
the holders of Magnum common stock having not less than the
minimum number of votes that would be necessary to authorize
such action at a meeting at which all shares of Magnum common
stock were present and had been voted.
Patriot
Patriot stockholders may not take action by written consent in
lieu of a meeting. See “Description of Patriot Capital
Stock.”
Special meetings of Magnum’s stockholders may be called by
Magnum’s chairman, Magnum’s president or Magnum’s
board of directors.
Patriot
Special meetings of Patriot stockholders may be called as
described under “Description of Patriot Capital
Stock.”
Advance
Notice Procedures
Magnum
Magnum’s bylaws provide that written notice of the time,
place and purpose or purposes of every meeting of stockholders
must be given not less than 10 days and not more than
60 days before the date of the meeting to each stockholder
of record entitled to vote at the meeting. Magnum’s bylaws
further provide that the only matters that may be considered and
acted upon at an annual meeting of stockholders are those
matters brought before the meeting through the notice of
meeting, by the board of directors or by a stockholder of record
entitled to vote at such meeting. Generally, Magnum’s
bylaws require a stockholder who intends to bring matters before
an annual meeting to provide advance notice of such intended
action not less than 90 days nor more than 120 days
prior to the date of the anniversary date of the prior
year’s annual meeting of stockholders. The notice must
contain, among other things, a brief description of the business
desired to be brought before the meeting and must identify any
personal or other material interest of the stockholder with
respect to such proposed business.
Patriot
Advance notice procedures applicable to Patriot stockholders are
described under “Description of Patriot Capital
Stock.”
Limitation
of Personal Liability and Indemnification of Directors and
Officers
Delaware law provides that, among other things, a corporation
may indemnify directors and officers as well as other employees
and agents of the corporation against expenses (including
attorneys’ fees), judgments, fines, and amounts paid in
settlement in connection with specified actions, suits or
proceedings, whether civil, criminal, administrative or
investigative (other than actions by or in the right of the
corporation, i.e. a “derivative action”), if they
acted in good faith and in a manner they reasonably believed to
be in or not opposed to the best interests of the corporation
and, with respect to any criminal action or proceeding, had no
reasonable cause to believe their conduct was unlawful. A
similar standard is applicable in the case of derivative
actions, except that indemnification only extends to expenses
(including attorneys’ fees) incurred in connection with the
defense or settlement of such actions, and the statute requires
court approval before there can be any indemnification where the
person seeking indemnification has been found liable to the
corporation. The statute provides that it is not exclusive of
other indemnification that may be granted by a
corporation’s by-laws, disinterested director vote,
stockholder vote, agreement or otherwise.
Magnum
Magnum’s bylaws provide that to the fullest extent
permitted under Delaware law, Magnum will indemnify any person
who was or is involved in any proceedings by reason of the fact
that he or she is or was a director or officer of Magnum or is
or was serving at the request of Magnum’s as a director or
officer of another entity, against all expenses, liability and
loss actually and reasonably incurred by him or her in
connection with such proceeding so long as such person acted in
good faith and in a manner that such person reasonably believed
to be in or not opposed to the best interest of Magnum.
Magnum’s charter and bylaws provide further that the right
to indemnification includes the right to receive payment of
expenses incurred by
the indemnified person in connection with such proceeding in
advance of the final disposition of such proceeding.
The employment agreements of various senior executives of Magnum
contain provisions pursuant to which Magnum has agreed to
indemnify such executives against any claim, loss or cause of
action arising out of the executive’s performance as an
officer, director or employee of Magnum or in any capacity,
including fiduciary capacity, in which the executive serves at
the request of Magnum, to the maximum extent permitted by
applicable law or under Magnum’s certificate of
incorporation or by-laws.
Magnum has obtained directors’ and officers’ liability
insurance providing coverage to Magnum’s directors and
officers.
Delaware law permits a corporation to provide in its certificate
of incorporation that a director of the corporation shall not be
personally liable to the corporation or its stockholders for
monetary damages for breach of fiduciary duties as a director,
except for liability (1) for any transaction from which the
director derives an improper personal benefit, (2) for acts
or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law, (3) under
Section 174 of Delaware law (certain illegal
distributions), or (4) for any breach of a director’s
duty of loyalty to the corporation or its stockholders.
Magnum’s certificate of incorporation includes such a
provision.
Patriot
Patriot’s certificate of incorporation and by-laws required
indemnification to the fullest extent permitted by Delaware law.
Patriot has also obtained directors’ and officers’
liability insurance providing coverage to Patriot’s
officers and directors.
In connection with Patriot’s indemnification procedures and
policies and the rights provided for by its certificate of
incorporation and by-laws, Patriot has entered into
indemnification agreements with each of Patriot’s directors
and certain officers. Pursuant to those indemnification
agreements, to the fullest extent permitted by Delaware law,
Patriot has agreed to indemnify those persons against any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by
reason of the fact that the indemnified person is or was or has
agreed to serve at the request of Patriot as a director,
officer, employee or agent of Patriot, or while serving as a
director or officer of Patriot, is or was serving or has agreed
to serve at the request of Patriot as a director, officer,
employee or agent (which, for purposes of the indemnification
agreements, includes a trustee, partner, manager or a position
of similar capacity) of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise, or by
reason of any action alleged to have been taken or omitted in
such capacity. The indemnification provided by these agreements
is from and against expenses (including attorneys’ fees),
judgments, fines and amounts paid in settlement actually and
reasonably incurred by the indemnified person or on his or her
behalf in connection with the action, suit or proceeding and any
appeal therefrom, but shall only be provided if the indemnified
person acted in good faith and in a manner the indemnified
person reasonably believed to be in or not opposed to the best
interests of Patriot, and, with respect to any criminal action,
suit or proceeding, had no reasonable cause to believe the
indemnified person’s conduct was unlawful. Patriot’s
certificate of incorporation and the indemnification agreements
require the advancement of expenses incurred by officers and
directors in relation to any action, suit or proceeding.
Delaware law permits a corporation to provide in its certificate
of incorporation that a director of the corporation shall not be
personally liable to the corporation or its stockholders for
monetary damages for breach of fiduciary duties as a director,
except for liability (1) for any transaction from which the
director derives an improper personal benefit, (2) for acts
or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law, (3) under
Section 174 of Delaware law (certain illegal
distributions), or (4) for any breach of a director’s
duty of loyalty to the corporation or its stockholders.
Patriot’s certificate of incorporation includes such a
provision.
Voting
Rights; Required Vote for Authorization of Certain Actions;
Anti-Takeover Effects of Provisions of Delaware Law
Magnum
General. Each holder of Magnum common stock is
entitled to one vote for each share held of record and may not
cumulate votes for the election of directors.
Merger; Sale of all or Substantially all of the Assets;
Dissolution. Under Delaware law, the merger, sale
of all or substantially all of Magnum’s assets or its
dissolution requires the affirmative vote of holders of a
majority of the outstanding stock of Magnum entitled to vote.
However, under the Magnum stockholders agreement, the merger of
Magnum or the sale of all or substantially all of Magnum’s
assets or assets or properties with an aggregate book value in
excess of $200 million requires the affirmative vote of at
least 66.67% of Magnum’s stockholders that are party to the
Magnum stockholders agreement. The dissolution of Magnum also
requires the affirmative vote of at least 66.67% of Magnum
stockholders that are party to the Magnum stockholders agreement.
Business Combinations. Section 203 of
Delaware law restricts the ability of an “interested
stockholder” of a Delaware corporation to merge with or
enter into other business combinations with the corporation for
a period of three years after becoming an “interested
stockholder.” A person is generally deemed to be an
“interested stockholder” upon acquiring 15% or more of
the outstanding voting stock of the corporation.
Section 203 does not apply to a corporation if:
•
before the date the person became an interested stockholder, the
board of directors of the corporation approved either the
business combination or the transaction which resulted in the
stockholder becoming an interested stockholder;
•
upon consummation of the transaction which resulted in the
stockholder becoming an interested stockholder, the interested
stockholder owned at least 85% of the voting stock of the
corporation outstanding at the time the transaction commenced
(excluding shares owned by directors who are also officers and
certain employee stock plans); or
•
the business combination is approved by the corporation’s
board of directors and the holders of two-thirds of the
corporation’s voting stock, excluding shares owned by the
interested stockholder.
Section 203 applies to a Delaware corporation if its stock
is (1) listed on a national securities exchange or
(2) held of record by more than 2,000 stockholders.
However, Section 203 does not apply, if, among other things:
•
the corporation’s original certificate of incorporation
contains a provision expressly electing not to be governed by
Section 203;
•
the corporation, by action of its board of directors, adopted
within ninety days following the enactment of Section 203
an amendment to its by-laws expressly electing not to be
governed by the statute;
•
the corporation, by action of a majority of its stockholders,
adopts an amendment to its certificate of incorporation or
by-laws expressly electing not to be governed by the
statute; or
•
the stockholder becomes an interested stockholder inadvertently
and divests itself of sufficient shares so that the stockholder
ceases to be an interested stockholder (which exception applies
only if the stockholder would not have been an interested
stockholder, but for the inadvertent acquisition, at any time
within the three-year period immediately prior to a business
combination between the corporation and the stockholder).
Although Magnum did not, in the Magnum charter, elect not to be
governed by Section 203, because the Magnum common stock is
not listed on a national securities exchange or held of record
by more than 2,000 stockholders, Section 203 does not apply
to Magnum.
Voting rights of Patriot stockholders, the required vote for
authorization of certain actions of Patriot stockholders and
certain anti-takeover effects of provisions of Delaware law are
described under “Description of Patriot Capital
Stock.”
The consolidated financial statements of Patriot Coal
Corporation at December 31, 2007 and 2006, and for each of
the three years in the period ended December 31, 2007,
included in this proxy statement/prospectus have been audited by
Ernst & Young LLP, independent registered public accounting
firm, as set forth in their report appearing elsewhere herein
which, as to the years 2006 and 2005, are based in part on the
report of PricewaterhouseCoopers LLP, independent registered
public accounting firm. The financial statements referred to
above are included in reliance upon such reports given on the
authority of such firms as experts in accounting and auditing.
The consolidated financial statements of KE Ventures, LLC and
its subsidiaries at December 31, 2006 and 2005, and the
results of their operations and cash flows for each of the years
then ended are not included in this proxy statement/prospectus
but are reflected in Patriot’s financial statements under
the equity method of accounting in the year ended and at
December 31, 2005 and under consolidation accounting in the
year ended and at December 31, 2006. The audited financial
statements of KE Ventures, LLC for the years ended
December 31, 2006 and 2005, not separately presented in
this proxy statement/prospectus, have been audited by
PricewaterhouseCoopers LLP, an independent registered public
accounting firm, whose report thereon appears herein. Such
financial statements have been included in reliance on the
report of such independent registered public accounting firm
given on the authority of said firm as experts in auditing and
accounting.
The consolidated financial statements of Magnum and its
subsidiaries as of December 31, 2007 and 2006 and for the
years then ended and for the period from inception
(October 31, 2005) to December 31, 2005, and the
combined financial statements of the Arch Properties,
predecessor to Magnum for the year ended December 31,2005, have been included in this proxy statement/prospectus in
reliance upon the report of Ernst & Young LLP, an
independent registered public accounting firm, upon the
authority of said firm as experts in accounting and auditing.
The estimates of Patriot’s proven and probable coal
reserves referred to in this proxy statement/prospectus to the
extent described in this proxy statement/prospectus, have been
prepared by Patriot and reviewed by John T. Boyd
Company and Alpha Engineering Services, Inc. The estimates of
Magnum’s proven and probable coal reserves referred to in
this proxy statement/prospectus to the extent described in this
proxy
statement/prospectus,
have been prepared by Weir International, Inc.
As of the date of this proxy statement/prospectus, the board of
directors of Patriot knows of no matters that will be presented
for consideration at the special meeting, other than as
described in this proxy statement/prospectus.
Patriot files annual, quarterly and current reports, proxy
statements and other information with the SEC. You may read and
copy any report, statement or other information that Patriot
files with the SEC at the SEC’s public reference room at
the following location:
Public Reference Room
100 F Street, N.E.
Washington, D.C. 20549
Please call the SEC at
1-800-SEC-0330
for further information on the public reference room. These SEC
filings are also available to the public from commercial
document retrieval services and at the website maintained by the
SEC at
“http://www.sec.gov.”Reports, proxy statements and other information concerning
Patriot may also be obtained at its website at
“http://www.patriotcoal.com”
and at the offices of the New York Stock Exchange at
20 Broad Street, New York, New York10005.
Patriot has supplied all information contained in this proxy
statement/prospectus relating to Patriot, and Magnum has
supplied all such information relating to Magnum.
You should rely only on the information contained in this proxy
statement/prospectus. We have not authorized anyone to provide
you with information that is different from what is contained in
this proxy statement/prospectus. This proxy statement/prospectus
is dated June 17, 2008. You should not assume that the
information contained in this proxy statement/prospectus is
accurate as of any date other than that date. Neither the
mailing of this proxy statement/prospectus to stockholders nor
the issuance of Patriot common stock in the merger creates any
implication to the contrary.
This proxy statement/prospectus contains forward-looking
statements within the meaning of the “safe harbor”
provisions of the United States Private Securities Litigation
Reform Act of 1995. Forward-looking statements may be identified
by the use of words such as “anticipate,”“may,”“can,”“believe,”“expect,”“project,”“intend,”“likely,” similar expressions and any other statements
that predict or indicate future events or trends or that are not
statements of historical facts. These forward-looking statements
are subject to numerous risks and uncertainties. There are
various important factors that could cause actual outcomes and
results to differ materially from those in any such
forward-looking statements. These factors include, but are not
limited to, the following:
•
Patriot’s and Magnum’s ability to complete the merger;
•
failure to obtain Patriot stockholder approval of the issuance
of Patriot common stock to the holders of Magnum common stock
pursuant to the merger agreement;
•
failure to obtain, delays in obtaining or adverse conditions
contained in any required regulatory or other approvals
necessary to complete the merger;
•
the availability and cost of financing required to repay
Magnum’s indebtedness upon closing of the merger;
•
failure to consummate or delay in consummating the merger for
other reasons;
•
Patriot’s ability to successfully integrate operations and
to realize the synergies from the merger;
•
changes in laws or regulations;
•
changes in general economic conditions, including coal and power
market conditions;
•
the outcome of commercial negotiations involving sales contracts
or other transactions;
•
Patriot’s dependence on Peabody Energy Corporation in the
near future relating to certain coal sales agreements;
•
geologic, equipment and operational risks associated with mining;
•
supplier performance and the availability and cost of key
equipment and commodities;
•
Patriot’s and Magnum’s ability to recover coal
reserves;
•
labor availability and relations;
•
availability and costs of transportation;
•
weather patterns affecting energy demand;
•
Magnum’s dependence on its operations at the Panther mine;
•
the correctness of Magnum’s assumptions regarding its
likely future expenses related to employee benefit plans and
reclamation and mine closure obligations;
•
Arch Coal’s fulfillment of its indemnification obligations
to Magnum under the Arch purchase and sale agreement and
Magnum’s indemnification obligations to Arch Coal
thereunder;
Magnum’s dependence on Arch Coal and certain former
customers of Arch Coal in connection with certain coal supply
agreements;
•
risks associated with environmental laws and compliance; and
•
the availability and costs of competing energy resources.
All subsequent written and oral forward-looking statements
concerning the merger or other matters addressed in this proxy
statement/prospectus and attributable to Patriot, Magnum or any
person acting on their behalf are expressly qualified in their
entirety by the cautionary statements contained or referred to
in this section. Forward-looking statements speak only as of the
date of this proxy statement/prospectus. Patriot and Magnum
undertake no obligation to publicly update or revise any
forward-looking statement or to make any other forward-looking
statements, whether as a result of new information, future
events or otherwise, unless required to do so by securities laws.
AGREEMENT
AND PLAN OF MERGER dated
as of April 2, 2008
among MAGNUM COAL COMPANY,
PATRIOT COAL CORPORATION
COLT MERGER CORPORATION, and ARCLIGHT ENERGY PARTNERS FUND I, L.P.
AND
ARCLIGHT ENERGY PARTNERS FUND II, L.P., acting jointly,
as
Stockholder Representative
AGREEMENT AND PLAN OF MERGER (this “Agreement”)
dated as of April 2, 2008 by and among Magnum Coal Company,
a Delaware corporation (the “Company”), Patriot
Coal Corporation, a Delaware corporation
(“Parent”), Colt Merger Corporation, a Delaware
corporation and a wholly-owned subsidiary of Parent
(“Merger Subsidiary”), and ArcLight Energy
Partners Fund I, L.P., a Delaware limited partnership, and
ArcLight Energy Partners Fund II, L.P., a Delaware limited
partnership, acting jointly, as Stockholder Representative for
the Designated Stockholders in accordance with
Section 11.05 and for certain other purposes as set forth
herein (the “Stockholder Representative”).
WHEREAS, the Boards of Directors of each of Parent, the Company
and Merger Subsidiary have determined that the merger of Merger
Subsidiary with and into the Company, with the Company being the
surviving corporation (the “Merger”) is
advisable and in the best interests of Parent, the Company and
Merger Subsidiary and their respective stockholders;
WHEREAS, for U.S. federal income tax purposes, it is
intended that the Merger shall qualify as a
“reorganization” within the meaning of
Section 368(a) of the Code, and that this Agreement
constitute a “plan of reorganization” within the
meaning of
Section 1.368-2(g)
of the Treasury regulations promulgated under the Code;
WHEREAS, in order to induce Parent and Merger Subsidiary to
enter into this Agreement, concurrently with the execution and
delivery of this Agreement, Parent and the holders of shares of
Company Stock representing approximately 98.955% of the issued
and outstanding Company Stock, have executed and delivered
support agreements (collectively, the “Support
Agreements”) pursuant to which, among other things,
each such holder agreed to execute and deliver an irrevocable
written consent approving this Agreement and the Merger (the
“Stockholder Consents”) immediately after the
execution and delivery of this Agreement; and
WHEREAS, in order to induce Parent and Merger Subsidiary to
enter into this Agreement, concurrently with the execution and
delivery of this Agreement, Parent, the Designated Stockholders
and the Stockholder Representative have executed and delivered a
Voting and Standstill Agreement (the “Voting
Agreement”).
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties and covenants contained herein and
other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
intending to be legally bound do hereby agree as follows:
ARTICLE 1
Definitions
Section 1.01. Definitions. (a) As
used herein, the following terms have the following meanings:
“Acquisition Proposal” means, other than the
transactions contemplated by this Agreement, any offer, proposal
or inquiry relating to, or any Third Party indication of
interest in, (A) any acquisition or purchase, direct or
indirect, of 20% or more of the consolidated assets of the
Company and its Subsidiaries or over 20% or more of any class of
equity or voting securities of the Company or any of its
Subsidiaries whose assets, individually or in the aggregate,
constitute more than 20% of the consolidated assets of the
Company and its Subsidiaries, (B) a merger, consolidation,
share exchange, business combination, sale of substantially all
the assets, reorganization, recapitalization, liquidation,
dissolution or other similar transaction involving the Company
or any of its Subsidiaries whose assets, individually or in the
aggregate, constitute more than 20% of the consolidated assets
of the Company and its Subsidiaries, (C) any other
transaction that, if consummated, would result in one or more
Third Parties beneficially owning 20% or more of any class of
equity or voting securities of the Company or any of its
Subsidiaries whose assets, individually or in the aggregate,
constitute more than 20% of the consolidated assets of the
Company and its Subsidiaries, or (D) any other transaction
the consummation of which would reasonably be expected to
impede, interfere with, prevent or materially delay the Merger.
Notwithstanding the
foregoing, any action taken by the Company that is expressly
consented to by Parent pursuant to the consent provision of
Section 6.01, shall not be deemed an Acquisition Proposal
hereunder.
“Affiliate” means, with respect to any Person,
any other Person directly or indirectly controlling, controlled
by, or under common control with such Person, and, for the
purposes hereof, the term “control” means the
power to direct the management and policies of such Person
(directly or indirectly), whether through ownership of
securities, by contract or otherwise (and the terms
controlling and controlled have the meanings
correlative to the foregoing).
“Applicable Law” means, with respect to any
Person, any federal, state, local or foreign law (statutory,
common or otherwise), constitution, treaty, convention,
ordinance, code, rule, regulation, order, injunction, judgment,
decree, ruling or other similar requirement enacted, adopted,
promulgated or applied by a Governmental Authority that is
binding upon or applicable to such Person, as amended unless
expressly specified otherwise.
“ArcLight Funds” means ArcLight Energy Partners
Fund I, L.P. and ArcLight Energy Partners Fund II,
L.P., and when so referred to herein as an ArcLight Fund, not
acting in their capacity as Stockholder Representative.
“Business Day” means a day, other than
Saturday, Sunday or other day on which commercial banks in New
York, New York are authorized or required by Applicable Law to
close.
“CERCLA” means the Comprehensive Environmental
Response, Compensation and Liability Act of 1980.
“Code” means the Internal Revenue Code of 1986.
“Company Balance Sheet” means the audited
consolidated balance sheet of the Company and its Subsidiaries
as of December 31, 2007 and the notes (other than
(i) the first paragraph under the caption “Off-Balance
Sheet Arrangements” in note 2, (ii) the first and
second sentences under note 10, (iii) the first,
second and third sentences under the caption “Other
Postretirement Benefits” in note 11, (iv) the
first sentence in the first paragraph of note 16,
(v) the first and second sentences in the second paragraph
of note 16 and (vi) the first and fifth paragraphs of
note 18) to the financial statements referred to in
Section 4.07(b).
“Company Convertible Debt” means the
Company’s issued and outstanding convertible indebtedness,
originally issued in an aggregate principal amount of
$100,000,000.
“Company Convertible Debt Notes” means the
promissory notes issued to the holders of Company Convertible
Debt in connection with the issuance of the Company Convertible
Debt.
“Company Convertible Debt NPA” means the Note
Purchase Agreement dated as of March 26, 2008 (as it may be
amended consistent with Section 6.06) relating to the
Company Convertible Debt.
“Company Credit Agreement” means the Credit
Agreement dated as of March 21, 2006 among the Company, the
Lenders party thereto, Lehman Brothers Inc., as sole lead
arranger and book runner, Lehman Commercial Paper Inc., as
administrative agent and collateral agent and Bank of Montreal,
as syndication agent, as amended or modified from time to time.
“Company Disclosure Schedule” means the
disclosure schedule dated the date hereof regarding this
Agreement that has been provided by the Company to Parent and
Merger Subsidiary.
“Company Material Adverse Effect” means a
material adverse effect on (a) the ability of the Company
to consummate the transactions contemplated by this Agreement
without material delay or (b) the condition (financial or
otherwise), business, assets, liabilities or results of
operations of the Company and its Subsidiaries, taken as a
whole; provided that for purposes of this clause (b),
none of the following shall be deemed, either alone or in
combination, to constitute, and none of the following shall be
taken into account in determining whether there has been or will
be a Company Material Adverse
Effect: (i) any adverse change, effect, event, occurrence,
state of facts or development attributable to conditions
affecting the industry in which the Company or its Subsidiaries
participates, the U.S. economy as a whole or the capital or
financial markets (including public and private debt markets) in
general or the markets in which the Company or its Subsidiaries
operate, except to the extent, in any such case,
disproportionately impacting the Company or its Subsidiaries,
taken as a whole, as compared to the other entities operating in
such industries or markets, respectively (and in any such case,
only such disproportionate impact shall be taken into account in
determining if a Company Material Adverse Effect has occurred);
(ii) any adverse change, effect, event, occurrence, state
of facts or development arising from or relating to any change
in accounting requirements or principles or any change in
Applicable Law (or the interpretation thereof) except to the
extent, in either case, disproportionately impacting the Company
or its Subsidiaries, taken as a whole, as compared to the other
entities operating in the industries in which the Company and
its Subsidiaries operate (and in any such case, only such
disproportionate impact shall be taken into account in
determining if a Company Material Adverse Effect has occurred)
(provided that any such adverse change, effect, event,
occurrence, state of facts or development to the extent arising
from or relating to the failure by the Company or any of its
Subsidiaries to comply with any change in Applicable Law shall
not be disregarded under this clause (ii)); (iii) any
adverse change, effect, event, occurrence, state of facts or
development arising from or relating to compliance with the
Company’s obligations under this Agreement or any other
Transaction Document or (iv) the breach of this Agreement
or any other Transaction Document by Parent or Merger Subsidiary
(or any of their Affiliates party to any other Transaction
Document). The term “Company Material Adverse Effect”
as used in any representation or warranty in Article 4
shall include (A) in the context of Article 11 (other
than to the extent relating to Section 4.30) an adverse
effect of $20,000,000 or more and (B) in the context of
Article 11 to the extent relating to Section 4.30 and
in the context of Section 9.02, an adverse effect of
$60,000,000 or more.
“Company Restricted Stock” means any and all
shares of the Company Stock that have been awarded in the form
of restricted stock (whether vested or unvested) to employees
and directors of, and consultants to, the Company under the
Stock Plan.
“Company Stock” means the common stock,
$0.01 par value, of the Company.
“Company Stockholders Agreement” means the
Stockholders Agreement dated as of March 21, 2006 among the
Company and the investors party thereto.
“Confidentiality Agreements” means (i) the
Confidentiality Agreement dated as of November 7, 2007
between Parent and the Company relating to confidential
information of Parent and (ii) the Confidentiality
Agreement dated as of November 7, 2007 between Parent and
the Company relating to confidential information of the Company.
“Covered Contract” means (in each case, other
than agreements solely between or among the Company and its
wholly-owned Subsidiaries and not containing any rights of or
obligations to any Third Party):
(i) any agreement or series of related agreements for the
purchase, sale (other than coal supply or coal product sales
agreements), receipt, lease or use of materials, supplies,
goods, services, equipment or other assets providing for
(A) annual payments by or to the Company or any of its
Subsidiaries of $5,000,000 or more, (B) aggregate payments
by or to the Company or any of its Subsidiaries of $10,000,000
or more or (C) a term in excess of three years;
(ii) any partnership, joint venture, limited liability
company, operating, shareholder, investor rights or other
similar agreement or arrangement with any Person (other than any
limited liability company or operating agreement of any
wholly-owned Subsidiary of the Company);
(iii) any distributor, dealer, sales agency, sales
representative, marketing or similar contracts providing for
(A) annual payments by or to the Company or any of its
Subsidiaries of $100,000 or more, (B) aggregate payments by
or to the Company or any of its Subsidiaries of $250,000 or more
or (C) a term in excess of three years;
(iv) any agreement or series of related agreements relating
to, or entered into in connection with, the acquisition or
disposition of the equity securities of any Person, any business
or any material amount of assets outside the ordinary course of
business (in each case, whether by merger, sale of stock, sale
of assets or otherwise);
(v) any agreement relating to indebtedness for borrowed
money, the deferred purchase price of property or the prepaid
sale of goods or products (in any such case, whether incurred,
assumed, guaranteed or secured by any asset and, in the case of
agreements relating to the deferred purchase price of property,
with a value in excess of $5,000,000 per asset or $10,000,000 in
the aggregate for all such assets), including indentures,
mortgages, loan agreements, capital leases, security agreements
or other agreements for the incurrence of indebtedness, other
than trade accounts payable incurred in the ordinary course of
business;
(vi) any agreement relating to any interest rate, currency
or commodity derivative or hedging transaction (excluding any
agreements for the purchase of diesel fuel where physical
delivery is intended);
(vii) any agreement (including any keepwell agreement)
under which (A) any Person has directly or indirectly
guaranteed any liabilities or obligations of the Company or any
of its Subsidiaries (other than any such guarantees by the
Company and its wholly-owned Subsidiaries) or (B) the
Company or any of its Subsidiaries has, directly or indirectly,
guaranteed any liabilities or obligations of any other Person
(other than the Company or any wholly-owned Subsidiary);
(viii) any agreement that (A) limits the freedom of
the Company or any of its Subsidiaries to compete in any line of
business or with any Person or in any area or which would so
limit the freedom of Parent, the Company or any of their
respective Affiliates after the Effective Time or
(B) contains exclusivity or “most favored nation”
obligations or restrictions binding on the Company or any of its
Subsidiaries or that would be binding on Parent or its
Affiliates after the Effective Time;
(ix) any employment, consultancy, deferred compensation,
loan, retention, bonus, severance, retirement or other similar
agreement or arrangement (including any amendment to any such
existing agreement or arrangement) with any director, officer or
employee of the Company or any of its Subsidiaries (other than
loans to non-executive employees not in excess of $10,000
individually or $100,000 in the aggregate);
(x) to the extent not otherwise included in the definition
of “Covered Contract” hereunder, any consulting
agreement or similar arrangement with an independent contractor
(i) providing for annual payments by the Company or any of
its Subsidiaries of $250,000 or more, (ii) providing for
aggregate payments by the Company or any of its Subsidiaries of
$500,000 or more, (iii) providing for a term in excess of
three years or (iv) to the extent that, after entry into
such agreement or arrangement, the Company and its Subsidiaries
shall have entered into consulting agreements or similar
arrangements with independent contractors providing for
aggregate payments by the Company or any of its Subsidiaries in
excess of $1,000,000 pursuant to all of such agreements or
arrangements;
(xi) any collective bargaining agreement;
(xii) any contracts or agreements relating to the provision
of contract mining (excluding any agreement solely with respect
to the provision of contract labor) by or to the Company or any
of its Subsidiaries providing for (i) annual payments by or
to the Company or any of its Subsidiaries of $5,000,000 or more,
(ii) aggregate payments by or to the Company or any of its
Subsidiaries of $10,000,000 or more or (iii) a term in
excess of three years;
(xiii) any lease or sublease of or relating to
(A) real property leased to others, (B) tangible
personal property leased to others or (C) mining or
exploration rights leased to others, in each case providing for
(i) annual payments to the Company or any of its
Subsidiaries of $500,000 or more,
(ii) aggregate payments to the Company or any of its
Subsidiaries of $1,000,000 or more or (iii) a term in
excess of three years;
(xiv) any lease or sublease of or relating to (A) real
property to be leased by the Company or any of its Subsidiaries,
or (B) mining or exploration rights to be leased by the
Company or any of its Subsidiaries, in each case providing for
(i) annual payments by the Company or any of its
Subsidiaries of $1,000,000 or more, (ii) aggregate payments
by the Company or any of its Subsidiaries of $5,000,000 or more
or (iii) a term in excess of three years;
(xv) any contracts or agreements related to the storage,
transportation or processing of the Company’s or its
Subsidiaries’ coal (including stock piling and loading
agreements) providing for either (i) annual payments by the
Company or any of its Subsidiaries of $5,000,000 or more,
(ii) aggregate payments by the Company or any of its
Subsidiaries of $10,000,000 or more or (iii) a term in
excess of three years;
(xvi) any (A) coal supply agreement or coal product
sales agreement providing for sales in excess of $250,000,000 in
the aggregate or a term in excess of three years or (B) any
coal purchase agreement providing for purchases in excess of
$10,000,000 individually or $100,000,000 in the aggregate or a
term in excess of three years; or
(xvii) any other agreement, commitment, arrangement or plan
not of a type described above but with a value in excess of
$2,500,000 (provided that the aggregate value of all such
agreements, commitments, arrangements or plans with a value in
excess of $1,000,000 shall not exceed $5,000,000).
“Damages” means any and all damage, loss,
diminution in value, liability, fines, penalties and expenses
(including reasonable expenses of investigation and reasonable
attorneys’ fees and expenses in connection with any action,
suit or proceeding whether involving a Third Party claim or a
claim to enforce the provisions hereof).
“Delaware Law” means the General Corporation
Law of the State of Delaware.
“Designated Stockholders” means the
Stockholders set forth on Section 1.01(a) of the Company
Disclosure Schedule.
“Environmental Claim” means any notice,
notification, demand, request for information, citation,
summons, order, complaint, investigation, action, claim, suit,
proceeding or review (or any basis therefor) of any nature,
civil, criminal, regulatory or otherwise, by any Person alleging
liability or potential liability (including liability or
potential liability for investigatory costs, cleanup costs,
governmental response costs, natural resource damages, fines or
penalties) relating to or arising out of any Environmental Laws
or any Hazardous Materials.
“Environmental Laws” means any Applicable Laws
or any agreement with any Governmental Authority or other third
party, relating to human health or to remediation, restoration
or protection of the environment or natural resources or other
environmental matters, including Applicable Laws relating to
storage, treatment, management, generation or transportation of
Hazardous Materials, land use, development, pollution, waste
disposal, toxic materials, conservation of natural resources and
resource allocation (including any Applicable Law relating to
development or exploitation of any natural resource) or use or
disposal of Hazardous Materials, including, without limitation,
the following statutes: (a) CERCLA, (b) the federal
Resource Conservation and Recovery Act of 1976, (c) the
federal Hazardous Materials Transportation Act, (d) the
federal Toxic Substances Control Act, (e) the federal Clean
Water Act, (f) the federal Clean Air Act, (g) the
federal Safe Drinking Water Act, (h) the federal National
Environmental Policy Act of 1969, (i) the federal Emergency
Planning and Community Right-to-Know Act, (j) the federal
Mine Safety Act of 1977, (k) the federal Surface Coal
Mining Land Conservation and Reclamation Act, (l) the
federal Abandoned Mined Lands and Water Reclamation Act and
(m) the federal Coal Mine Health and Safety Act, and, in
each case, any comparable state or local statutes.
“Environmental Permits” means all permits,
licenses, franchises, certificates, approvals and other similar
authorizations of Governmental Authorities relating to or
required by Environmental Laws and affecting, or relating to, as
applicable, the business of the Company and its Subsidiaries as
currently (unless expressly specified otherwise) conducted or
the business of Parent and its Subsidiaries as currently (unless
expressly specified otherwise) conducted.
“ERISA” means the Employee Retirement Income
Security Act of 1974.
“ERISA Affiliate” of any entity means any other
entity that, together with such entity, would be treated as a
single employer under Section 414 of the Code.
“Escrow Agent” means an escrow agent mutually
agreed by Parent and the Company prior to Closing.
“Escrow Agreement” means the Escrow Agreement
among Parent, the Stockholder Representative and the Escrow
Agent, substantially in the form of Exhibit A hereto.
“GAAP” means generally accepted accounting
principles in the United States.
“Governmental Authority” means any
transnational, domestic or foreign federal, state or local,
governmental authority, department, court, agency or official,
including any political subdivision thereof.
“Hazardous Materials” means any material or
substance defined as a “hazardous substance,”“toxic substance,”“hazardous waste,”“solid waste,”“pollutant” or
“contaminant” or any other term of similar import
under any Environmental Law, or any other materials which are
regulated or give rise to liability under Environmental Laws,
including petroleum (including crude oil or any fraction
thereof), asbestos and asbestos-containing materials, acidic
mine drainage, radiation and radioactive materials,
lead-containing paints, molds and other harmful biologic agents,
and polychlorinated biphenyls.
“HSR Act” means the
Hart-Scott-Rodino
Antitrust Improvements Act of 1976.
“Identified Mining Laws” means (a) the
federal Mine Safety Act of 1977, (b) the federal Surface
Coal Mining Land Conservation and Reclamation Act, (c) the
West Virginia Surface Coal Mining and Reclamation Act,
(d) the federal Abandoned Mined Lands and Water Reclamation
Act, (e) the federal Coal Mine Health and Safety Act (as
amended by the Mine Improvement and New Emergency Response Act
of 2006), (f) with respect to any Person, any state or
local statutes comparable to the statutes referred to in the
preceding clauses (a)-(e) that are binding upon or applicable to
such Person, (g) any other Applicable Laws similar to any
of the items in the preceding clauses (a)-(f) and relating
primarily to mining, miner health and safety, reclamation, land
use and development and exploitation or restoration of natural
resources and (h) any written agreements with any
Governmental Authority relating to any of the foregoing.
“Intellectual Property Rights” means
(i) trademarks, service marks, brand names, certification
marks, trade dress, domain names and other indications of
origin, the goodwill associated with the foregoing and
registrations in any jurisdiction of, and applications in any
jurisdiction to register, the foregoing, including any
extension, modification or renewal of any such registration or
application; (ii) inventions and discoveries, whether
patentable or not, in any jurisdiction; patents, applications
for patents (including, without limitation, divisions,
continuations, continuations in part and renewal applications),
and any renewals, extensions or reissues thereof, in any
jurisdiction; (iii) trade secrets and confidential
information and rights in any jurisdiction to limit the use or
disclosure thereof by any person (the “Trade
Secrets”); (iv) writings and other works, whether
copyrightable or not, in any jurisdiction, and any and all
copyright rights, whether registered or not; and registrations
or applications for registration of copyrights in any
jurisdiction, and any renewals or extensions thereof;
(v) moral rights, database rights, design rights,
industrial property rights, publicity rights and privacy rights;
and (vi) any similar intellectual property or proprietary
rights.
“knowledge” of any Person that is not an
individual means the actual knowledge of (i) with respect
of the Company, Paul Vining, Keith St. Clair, Dwayne Francisco,
Robert Bennett, David Turnbull,
Richard Verheij, John Eagan and Mark Cornell, and (ii) with
respect to Parent, Richard M. Whiting, Mark N. Schroeder, Jiri
Nemec, Charles A. Ebetino, Jr., Joseph W. Bean, Michael V.
Altrudo, Gary Halstead and Sara E. Wade.
“Lien” means, with respect to any property or
asset, any mortgage, lien, lease, levy, pledge, charge, security
interest, restrictive covenant, easement, encroachment, right of
way, right to use or acquire, title defect, interest created
under any bill of sale, trust or power, encumbrance or other
adverse claim of any kind in respect of such property or asset.
For purposes of this Agreement, a Person shall be deemed to own
subject to a Lien any property or asset that it has acquired or
holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title
retention agreement relating to such property or asset.
“1933 Act” means the Securities Act of
1933.
“1934 Act” means the Securities Exchange
Act of 1934.
“Market Value” means the average of the closing
price of Parent Stock on the New York Stock Exchange (or if
Parent Stock is not then traded on the New York Stock Exchange,
the principal stock exchange on which Parent Stock is then
traded) for the 10 consecutive trading days immediately
preceding (i) with respect to a payment of Escrow Shares
from the Escrow Account, the applicable date on which shares of
Parent Stock are to be released from the Escrow Account,
(ii) with respect to the calculation of the Net Per Share
Number, the Closing Date and (iii) with respect to a
payment made pursuant to the last sentence of
Section 11.02(c), the applicable date on which payment is
to be made.
“Net Per Share Number” means “X” as
determined by the following formula: X = (11,901,729-(Excess
Transaction Expenses Deduction Amount/Market Value))/Company
Outstanding Stock Number.
“Parent Balance Sheet” means the audited
consolidated balance sheet of Parent and its Subsidiaries as of
December 31, 2007 and the notes to the financial statements
referred to in Section 5.08(b).
“Parent Disclosure Schedule” means the
disclosure schedule dated the date hereof regarding this
Agreement that has been provided by Parent to the Company.
“Parent Employee Plan” means each material
“employee benefit plan,” as defined in
Section 3(3) of ERISA, and, whether or not subject to
ERISA, each material employment, severance, change in control,
retention or similar contract, plan, arrangement or policy and
each other material plan or arrangement (written or oral)
providing for compensation, bonuses, profit-sharing, stock
option or other equity-based rights or other forms of incentive
or deferred compensation, vacation benefits, insurance
(including any self-insured arrangements), health or medical
benefits, employee assistance program, disability or sick leave
benefits, workers’ compensation, supplemental unemployment
benefits, severance benefits, post-employment or retirement
benefits (including compensation, pension, health, medical or
life insurance benefits) and any other material plan, agreement,
program or policy which is maintained, sponsored or contributed
to by Parent or any ERISA Affiliate of Parent and covers any
current or former director, officer, employee or independent
consultant of Parent or any of its Subsidiaries, or with respect
to which Parent or any of its Subsidiaries has any liability.
“Parent Material Adverse Effect” means a
material adverse effect on (a) the ability of Parent to
consummate the transactions contemplated by this Agreement
without material delay or (b) the condition (financial or
otherwise), business, assets, liabilities or results of
operations of Parent and its Subsidiaries, taken as a whole;
provided that for purposes of this clause (b), none of
the following shall be deemed, either alone or in combination,
to constitute, and none of the following shall be taken into
account in determining whether there has been or will be a
Parent Material Adverse Effect: (i) any adverse change,
effect, event, occurrence, state of facts or development
attributable to conditions affecting the industry in which
Parent or its Subsidiaries participates, the U.S. economy
as a whole or the capital or financial markets (including public
and private debt markets) in general or the markets in which
Parent or its Subsidiaries operate, except to the extent, in any
such case, disproportionately impacting Parent or its
Subsidiaries, taken as a whole, as compared to the other
entities operating in such industries or markets, respectively
(and in any such case, only such disproportionate impact shall
be taken into account in determining if a Parent Material
Adverse Effect has occurred); (ii) any adverse change,
effect, event, occurrence, state of facts or development arising
from or relating to any change in accounting requirements or
principles or any change in Applicable Law (or the
interpretation thereof) except to the extent, in either case,
disproportionately impacting Parent or its Subsidiaries, taken
as a whole, as compared to the other entities operating in the
industries in which Parent and its Subsidiaries operate (and in
any such case, only such disproportionate impact shall be taken
into account in determining if a Parent Material Adverse Effect
has occurred) (provided that any such adverse change,
effect, event, occurrence, state of facts or development to the
extent arising from or relating to the failure by Parent or any
of its Subsidiaries to comply with any change in Applicable Law
shall not be disregarded under this clause (ii)); (iii) any
adverse change, effect, event, occurrence, state of facts or
development arising from or relating to compliance with
Parent’s obligations under this Agreement or any other
Transaction Document; (iv) a decline in the price or
trading volume of Parent Stock on the New York Stock Exchange
(provided that any underlying cause or causes for any
change in the price or trading volume of Parent Stock on the New
York Stock Exchange may be considered in determining whether a
Parent Material Adverse Effect has occurred); or (v) the
breach of this Agreement or any other Transaction Document by
the Company (or any of its Affiliates or Stockholders party to
any other Transaction Document). The term “Parent Material
Adverse Effect” as used in any representation or warranty
in Article 5 shall include (A) in the context of
Article 11 (other than to the extent relating to
Section 5.27) an adverse effect of $50,000,000 or more and
(B) in the context of Article 11 to the extent
relating to Section 5.27 and in the context of
Section 9.03, an adverse effect of $150,000,000 or more.
“Parent Proxy Statement” means the proxy
statement of Parent to be filed by Parent with the SEC in
connection with the Parent Stock Issuance (which shall be
included in the Registration Statement).
“Parent Stock” means the common stock,
$0.01 par value, of Parent.
“PBGC” means the Pension Benefit Guaranty
Corporation.
“Permitted Liens” means (i) Liens
disclosed on the Company Balance Sheet or Parent Balance Sheet,
as applicable, (ii) Liens for taxes not yet due or being
contested in good faith (and, in either case, for which adequate
accruals or reserves have been established on the Company
Balance Sheet or Parent Balance Sheet, as applicable),
(iii) deposits made in the ordinary course of business
securing the performance of bids, trade contracts, leases,
statutory obligations, surety, customs and appeal bonds and
other obligations of like nature incurred as or incidental to
and in the ordinary course of business, (iv) any statutory
Lien arising in the ordinary course of business by operation of
Applicable Law with respect to a liability that is not yet due
or delinquent or being contested in good faith (and for which
adequate accruals or reserves have been established on the
Company Balance Sheet or Parent Balance Sheet, as applicable),
(v) any imperfection of title or similar Lien,
(vi) easements, zoning restrictions, rights-of-way,
encroachments and similar encumbrances on real property imposed
by law or arising in the ordinary course of business or which
are necessary or desirable in connection with the business or
the development thereof, (vii) any terms and conditions
included in the contracts set forth on Section 1.01(a)(vii)
of the Company Disclosure Schedule or the Parent Disclosure
Schedule, as applicable, (viii) customary bank setoff
rights under the agreements set forth on
Section 1.01(a)(viii) of the Company Disclosure Schedule or
the Parent Disclosure Schedule, as applicable, or to which a
bank is entitled with respect to an account with such bank,
(ix) any interest or title of a lessor under any lease
entered into by the Company or any of its Subsidiaries, or
Parent or any of its Subsidiaries, as the case may be, in the
ordinary course of business and covering only the assets so
leased, (x) Liens disclosed on Section 1.01(a)(x) of
the Company Disclosure Schedule or Section 1.01(a)(x) of
the Parent Disclosure Schedule, as applicable; provided
that (a) the term “Permitted Lien” shall not
include any Lien securing indebtedness except as provided in
clauses (i) and (x), (b) in the case of clauses (v),
(vi), (vii) and (ix) above, such Liens individually or
in the aggregate with other such Liens do not materially detract
from the value or materially interfere with any present or
intended use of the property or assets to which they relate, and
(c) in the case of clause (iv) above, such Liens
individually or in the aggregate with other
such Liens do not materially interfere with any present or
intended use of the property or assets to which they relate.
“Person” means an individual, corporation,
partnership, limited liability company, association, trust or
other entity or organization, including a government or
political subdivision or a department, agency or instrumentality
thereof.
“Registration Rights Agreement” means the
Registration Rights Agreement among Parent and the other parties
thereto, in the form attached as Exhibit B hereto.
“Registration Statement” means the Registration
Statement of Parent to be filed by Parent with the SEC with
respect to the issuance of Parent Stock in connection with the
Merger (which shall include the Parent Proxy Statement).
“Release” means any spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping,
leaching, dumping, or disposing of Hazardous Materials into any
occupied structure or upon the environment, including surface
water, ground water, a drinking water supply, land surface or
subsurface strata or ambient air (including the abandonment or
discarding of barrels, containers, and other closed receptacles
containing any Hazardous Material).
“SEC” means the Securities and Exchange
Commission.
“Stockholders” means the holders of shares of
Company Stock, including Company Restricted Stock.
“Stock Plan” means the Magnum Coal Company 2006
Stock Incentive Plan, as adopted by the Company on
March 21, 2006.
“Subsidiary” means, with respect to any Person,
any entity of which securities or other ownership interests
having ordinary voting power to elect a majority of the board of
directors or other persons performing similar functions are at
any time directly or indirectly owned by such Person.
“Third Party” means (i) for purposes of
this Agreement other than Article 11, any Person, including
as defined in Section 13(d) of the 1934 Act, other
than Parent or any of its Affiliates and (ii) for purposes
of Article 11, any Person other than any Parent Indemnified
Party, any Stockholder Indemnified Party or the Stockholder
Representative.
“Transaction Documents” means this Agreement,
the Escrow Agreement, the Registration Rights Agreement, the
Stockholder Consents, the Support Agreements, the Voting
Agreement and any and all other agreements, certificates and
documents required to be delivered by any party hereto prior to
or at the Closing pursuant to the terms of this Agreement.
“Transaction Expenses” means any out-of-pocket
amount paid or to be paid, and any payment obligations incurred,
by or on behalf of the Company or any of its Subsidiaries in
connection with this Agreement, the other Transaction Documents,
the Merger and the other transactions contemplated hereby
including, but not limited to, professional fees and related
expenses for services rendered by counsel, actuaries, auditors,
accountants, investment bankers, brokers, finders or other
intermediaries, experts, consultants and other advisors, in each
case only to the extent incurred since January 1, 2008;
provided that “Transaction Expenses” shall not
include “change in control”, severance or similar
payments to employees that are only payable upon a termination
of employment after the Closing.
“Transaction Expenses Cap” means the sum of
(i) $4,000,000 and (ii) the amount of fees and
expenses payable by the Company to Citigroup Global Markets Inc.
in connection with the Merger pursuant to the engagement
agreement provided to Parent prior to the date hereof.
Section 1.02. Other
Definitional and Interpretative Provisions. The
words “hereof”, “herein” and
“hereunder” and words of like import used in this
Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement. The captions herein
are included for convenience of reference only and shall be
ignored in the construction or interpretation hereof. References
to Articles, Sections, Exhibits and Schedules are to Articles,
Sections, Exhibits and Schedules of this Agreement unless
otherwise specified. All Exhibits and Schedules annexed hereto
or referred to herein are hereby incorporated in and made a part
of this Agreement as if set forth in full herein. Any
capitalized terms used in any Exhibit or Schedule but not
otherwise defined therein, shall have the meaning as defined in
this Agreement. Any singular term in this Agreement shall be
deemed to include the plural, and any plural term the singular.
Whenever the words “include”, “includes” or
“including” are used in this Agreement, they shall be
deemed to be followed by the words “without
limitation”, whether or not they are in fact followed by
those words or words of like import. “Writing”,
“written” and comparable terms refer to printing,
typing and other means of reproducing words (including
electronic media) in a visible form. References to any agreement
or contract are to that agreement or contract as amended,
modified or supplemented from time to time in accordance with
the terms hereof and thereof; provided that with respect
to any agreement or contract listed on any schedules hereto, all
such amendments, modifications or supplements must also be
listed in the appropriate schedule. References to any Person
include the successors and permitted assigns of that Person.
References from or through any date mean, unless otherwise
specified, from and including or through and including,
respectively. References to “law” or “laws”
shall be deemed also to include any Applicable Law. References
to any particular statute or law shall be to such statute or law
as amended from time to time, and to the rules and regulations
promulgated thereunder and enforceable interpretations thereof.
Any references in this Agreement to compliance by any Person
with any Applicable Law, permit, authorization, agreement or
other item shall include compliance by any business, assets or
operations of such Person.
Section 2.01. The
Merger. (a) At the Effective Time, Merger
Subsidiary shall be merged with and into the Company in
accordance with Delaware Law, whereupon the separate existence
of Merger Subsidiary shall cease, and the Company shall be the
surviving corporation (the “Surviving
Corporation”).
(b) The closing of the Merger (the
“Closing”) shall take place at the offices of
Davis Polk & Wardwell, 450 Lexington Avenue, New York,
New York10017 at 10:00 A.M., three Business Days after the
date on which the last of the conditions set forth in
Article 9 shall have been satisfied or waived (other than
those conditions that (i) by their nature are to be
satisfied at Closing and (ii) will be satisfied at
Closing), or on such other date, time and place as the Company
and Parent may mutually agree (the “Closing
Date”). On the Closing Date the Company and Merger
Subsidiary shall file a certificate of merger with the Delaware
Secretary of State and make all other filings or recordings
required by Delaware Law in connection with the
Merger. The Merger shall become effective at such time (the
“Effective Time”) as the certificate of merger
is duly filed with the Delaware Secretary of State (or at such
later time as may be specified in the certificate of merger by
agreement of the parties).
(c) From and after the Effective Time, the effect of the
Merger shall be as provided in this Agreement and the applicable
provisions of Delaware Law. Without limiting the generality of
the foregoing, at the Effective Time, all of the property,
rights, privileges, powers and franchises of the Company and
Merger Subsidiary shall vest in the Surviving Corporation, and
all of the debts, liabilities, obligations and duties of the
Company and Merger Subsidiary shall become the debts,
liabilities, obligations and duties of the Surviving Corporation.
Section 2.02. Conversion
of Shares. At the Effective Time:
(a) except as otherwise provided in Section 2.02(b)
and Section 2.09, and subject to Section 2.04(b), each
share of Company Stock (including Company Restricted Stock and
shares of Company Stock issued upon conversion of the Company
Convertible Debt Notes) outstanding immediately prior to the
Effective Time shall be converted into the right to receive the
Net Per Share Number of shares of Parent Stock (together with
the cash in lieu of fractional shares of Parent Stock as
specified below, the “Merger Consideration”);
provided that, notwithstanding the foregoing, the parties
acknowledge and agree that the Escrow Shares shall be deducted
from the Parent Stock deliverable to each Designated Stockholder
based on that Designated Stockholder’s Pro Rata Share of
the Escrow Shares as set forth in Section 2.08 and such
Escrow Shares shall be deliverable to such Designated
Stockholders only as provided in the Escrow Agreement.
(b) each share of Company Stock held by the Company as
treasury stock shall be canceled, and no payment shall be made
with respect thereto; and
(c) each share of common stock of Merger Subsidiary
outstanding immediately prior to the Effective Time shall be
converted into and become one share of common stock of the
Surviving Corporation with the same rights, powers and
privileges as the shares so converted and shall constitute the
only outstanding shares of capital stock of the Surviving
Corporation.
Section 2.03. Surrender
and Payment. (a) Parent shall act as agent
or prior to the Effective Time Parent shall appoint an agent
(Parent or such agent, as applicable, the “Exchange
Agent”) for the purpose of exchanging for the Merger
Consideration certificates representing shares of Company Stock,
including Company Restricted Stock (the
“Certificates”). Parent shall make available to
the Exchange Agent, as needed, the Merger Consideration to be
paid in respect of the Certificates. Promptly after the
Effective Time (but not later than ten Business Days after the
Closing), Parent shall send, or shall cause the Exchange Agent
to send, to each holder of shares of Company Stock at the
Effective Time, a letter of transmittal and instructions (which
shall specify that the delivery shall be effected, and risk of
loss and title shall pass, only upon proper delivery of the
Certificates to the Exchange Agent) for use in such exchange.
(b) Each holder of shares of Company Stock that have been
converted into the right to receive the Merger Consideration
shall be entitled to receive, upon surrender to the Exchange
Agent of a Certificate, together with a properly completed
letter of transmittal, the Merger Consideration in respect of
the Company Stock represented by such Certificate, but subject
to Section 2.08. The shares of Parent Stock constituting
part of such Merger Consideration, at Parent’s option,
shall be in uncertificated book-entry form; provided
that, except with respect to shares then held in the Escrow
Account, if such shares of Parent Stock are in uncertificated
book-entry form, upon request by the Stockholder Representative
or any Stockholder, Parent shall provide to such Person a
certificate of Parent’s transfer agent of the registration
of such shares of Parent Stock in the name of the applicable
Stockholder. Until so surrendered or transferred, as the case
may be, each such Certificate shall represent after the
Effective Time for all purposes only the right to receive such
Merger Consideration.
(c) If any portion of the Merger Consideration is to be
paid to a Person other than the Person in whose name the
surrendered Certificate, is registered, it shall be a condition
to such payment that (i) such Certificate shall be properly
endorsed or shall otherwise be in proper form for transfer and
(ii) the Person requesting such
payment shall pay to the Exchange Agent any transfer or other
taxes required as a result of such payment to a Person other
than the registered holder of such Certificate or establish to
the reasonable satisfaction of the Exchange Agent that such tax
has been paid or is not payable.
(d) After the Effective Time, there shall be no further
registration of transfers of shares of Company Stock. If, after
the Effective Time, Certificates are presented to the Surviving
Corporation, they shall be canceled and exchanged for the Merger
Consideration provided for, and in accordance with the
procedures set forth, in this Article 2.
(e) Any portion of the Merger Consideration made available
to the Exchange Agent pursuant to Section 2.03(a) that
remains unclaimed by the holders of shares of Company Stock
twelve months after the Effective Time shall be returned to
Parent, upon demand, and any such holder who has not exchanged
shares of Company Stock for the Merger Consideration in
accordance with this Section 2.03 prior to that time shall
thereafter look only to Parent for payment of the Merger
Consideration, and any dividends and distributions with respect
thereto, in respect of such shares without any interest thereon.
Notwithstanding the foregoing, Parent shall not be liable to any
holder of shares of Company Stock for any amounts paid to a
public official pursuant to applicable abandoned property,
escheat or similar laws. Any amounts remaining unclaimed by
holders of shares of Company Stock two years after the Effective
Time (or such earlier date, immediately prior to such time when
the amounts would otherwise escheat to or become property of any
Governmental Authority) shall become, to the extent permitted by
Applicable Law, the property of Parent free and clear of any
claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to
Parent Stock constituting part of the Merger Consideration, and
no cash payment in lieu of fractional shares as provided in
Section 2.05, shall be paid to the holder of any
Certificates not surrendered until such Certificates are
surrendered as provided in this Section. Following such
surrender, there shall be paid, without interest, to the Person
in whose name the shares of Parent Stock have been registered,
at the time of such surrender or transfer, the amount of any
cash payable in lieu of fractional shares to which such Person
is entitled pursuant to Section 2.05 and the amount of all
dividends or other distributions, if any, with a record date
after the Effective Time previously paid or payable on the date
of such surrender with respect to such shares of Parent Stock;
provided that all dividends and distributions with
respect to the Escrow Shares shall be held in the Escrow Account
together with the associated Escrow Shares.
Section 2.04. Certain
Adjustments.
(a) If, during the period between the date of this
Agreement and the Effective Time, any change in the outstanding
shares of capital stock of the Company (except for the issuance
of the shares of Company Stock on conversion of the Company
Convertible Debt Notes) or Parent shall occur, including by
reason of any reclassification, recapitalization, stock split or
combination, exchange or readjustment of shares, the Merger
Consideration shall be appropriately adjusted; provided
that no adjustment to the Merger Consideration shall be made
for any change in the outstanding shares of capital stock of
Parent that results from (i) any exercise of options to
purchase shares of Parent Stock granted under Parent’s
stock option or compensation plans or arrangements, which plans
or arrangements have been disclosed in the Parent SEC Documents,
and any issuance of shares pursuant to any such plans or
arrangements or (ii) any bona fide issuance of shares in
which Parent receives fair value (as determined in good faith by
Parent’s Board of Directors) for such shares.
(b) Subject to any adjustments required by
Section 2.04(a), Parent shall not be obligated to issue in
excess of 11,901,729 shares of Parent Stock (less
(i) a number of shares, if any, equal to the Excess
Transaction Expenses Deduction Amount divided by the Market
Value as calculated for purposes of determining the Net Per
Share Number and (ii) any fractional shares to the extent
provided in Section 2.05) as Merger Consideration
(including, for the avoidance of doubt, the Escrow Shares).
Section 2.05. Fractional
Shares. No fractional shares of Parent Stock
shall be issued in the Merger. All fractional shares of Parent
Stock that a holder of shares of Company Stock would otherwise
be entitled to receive as a result of the Merger shall be
aggregated and if a fractional share results from such
aggregation, such holder shall be entitled to receive, in lieu
thereof, an amount in cash without interest determined by
multiplying the closing sale price of a share of Parent Stock on
the New York Stock Exchange on the trading day immediately
preceding the Effective Time by the fraction of a share of
Parent Stock to which such holder would otherwise have been
entitled.
Section 2.06. Withholding
Rights.
(a) Each of the Surviving Corporation and Parent shall be
entitled to deduct and withhold from the consideration otherwise
payable to any Person pursuant to this Article 2 such
amounts as it is required to deduct and withhold with respect to
the making of such payment under any provision of federal,
state, local or foreign tax law. Any withheld amounts shall be
timely remitted to the appropriate Taxing Authority and a
receipt therefor shall be delivered to the Stockholder
Representative. If the Surviving Corporation or Parent, as the
case may be, so withholds amounts, such amounts shall be treated
for all purposes of this Agreement as having been paid to the
holder of the shares of Company Stock in respect of which the
Surviving Corporation or Parent, as the case may be, made such
deduction and withholding.
(b) Without limiting the generality of
Section 2.06(a), Parent shall be entitled to treat the
Company as a United States Real Property Holding Corporation, as
defined in Section 897 of the Code. Accordingly, Parent
shall be entitled to deduct and withhold from payments to each
Stockholder pursuant to Section 1445 of the Code, unless
such Stockholder provides certification of non-foreign status or
other evidence of exemption from 1445 withholding (in the forms
attached hereto as Exhibit 2.06(b)).
Section 2.07. Lost
Certificates. If any Certificate shall have been
lost, stolen or destroyed, upon the making of an affidavit of
that fact by the Person claiming such Certificate to be lost,
stolen or destroyed and, if required by the Surviving
Corporation, the posting by such Person of a bond, in such
reasonable amount as the Surviving Corporation may direct, as
indemnity against any claim that may be made against it with
respect to such Certificate the Exchange Agent will issue, in
exchange for such lost, stolen or destroyed Certificate the
Merger Consideration to be paid in respect of the shares of
Company Stock or Company Restricted Stock represented by such
Certificate, as contemplated by this Article 2.
Section 2.08. Escrow
Account.
(a) The Company agrees that at the Closing a number of
shares of Parent Stock equal to 10% of the aggregate number of
shares of Parent Stock to be issued to the Stockholders in the
Merger pursuant to Section 2.02 (the “Escrow
Shares”) shall (in lieu of being delivered to the
Designated Stockholders, and with the portion of such Escrow
Shares attributable to each Designated Stockholder being such
Designated Stockholder’s Pro Rata Share) be delivered by
Parent to the Escrow Agent for deposit into a separate account
(the “Escrow Account”) in accordance with the
terms of the Escrow Agreement. The Escrow Shares deposited with
the Escrow Agent shall be applied by the Escrow Agent in
accordance with the terms of the Escrow Agreement to pay amounts
(if any) owing under Article 11 (with such Escrow Shares
valued at Market Value in accordance with the definition
thereof), with all remaining property in the Escrow Account to
be distributed to the Designated Stockholders in accordance with
Section 2.08(b). For the purposes of the definition of
“Escrow Shares”, any dividends or distributions paid
on an Escrow Share and the interest earned thereon shall also be
deemed to be part of such “Escrow Share”. For the
purposes of this Agreement, “Escrow Property”
means, at any given time, the Escrow Shares and any other funds
or property contained in the Escrow Account at such time.
(b) On the first Business Day after the first anniversary
of the Closing Date, an amount of Escrow Property equal to
(x) the amount of Escrow Property remaining in the Escrow
Account at such time less (y) such amount of Escrow
Property with an aggregate value (calculated, to the extent any
Escrow Shares are held in the Escrow Account, based on the
Market Value of such Escrow Shares at such time) equal to the
aggregate amount of bona fide claims for indemnification
submitted in good faith and outstanding at such time (plus
applicable interest on such claims), shall be released from the
Escrow Account for distribution to the Persons who were
Designated Stockholders immediately prior to the Effective Time
in accordance with their Pro Rata Shares. Any remaining Escrow
Property in the Escrow Account at the time all such claims for
indemnification are resolved shall be released from the Escrow
Account for distribution to the Persons who were Designated
Stockholders immediately prior to the Effective Time in
accordance with their Pro Rata
Shares. For these purposes, “Pro Rata Share”
means, with respect to each Designated Stockholder the quotient
of (i) the number of shares of Parent Stock to be issued to
such Designated Stockholder in the Merger pursuant to
Section 2.02, divided by (y) the aggregate
number of shares of Parent Stock to be issued to all Designated
Stockholders in the Merger pursuant to Section 2.02. The
Escrow Agent shall hold the Escrow Property in escrow pursuant
to the Escrow Agreement. Distributions of any Escrow Property
from the Escrow Account shall be governed by the terms and
conditions of the Escrow Agreement.
Section 2.09. Dissenting
Shares. Notwithstanding any provision of this
Agreement to the contrary, if required by Delaware Law (but only
to the extent required thereby), shares of Company Stock that
are issued and outstanding immediately prior to the Effective
Time (other than shares of Company Stock to be canceled pursuant
to Section 2.02(b)) and that are held by holders of such
shares who have not voted in favor of the adoption of this
Agreement or consented thereto in writing and who have properly
exercised appraisal rights with respect thereto in accordance
with, and who have complied with, Section 262 of Delaware
Law (the “Dissenting Shares”) will not be
convertible into the right to receive the Merger Consideration,
and holders of such Dissenting Shares will be entitled to
receive payment of the fair value of such Dissenting Shares in
accordance with the provisions of such Section 262 unless
and until any such holder fails to perfect or effectively
withdraws or loses its rights to appraisal and payment under
Delaware Law. If, after the Effective Time, any such holder
fails to perfect or effectively withdraws or loses such right,
such Dissenting Shares will thereupon be treated as if they had
been converted into and have become exchangeable for, at the
Effective Time, the right to receive the Merger Consideration,
without any interest thereon, and the Surviving Corporation
shall remain liable for payment of the Merger Consideration for
such shares, subject to Section 2.08. At the Effective
Time, any holder of Dissenting Shares shall cease to have any
rights with respect thereto, except the rights provided in
Section 262 of Delaware Law and as provided in the previous
sentence. The Company will give Parent prompt notice of any
demands received by the Company for appraisals of shares of
Company Stock.
ARTICLE 3
The
Surviving Corporation
Section 3.01. Certificate
of Incorporation. At the Effective Time, the
certificate of incorporation of the Company, as in effect
immediately prior to the Effective Time, shall be amended in the
Merger to read in its entirety as set forth in Exhibit 3.01
hereto, and, as so amended, shall be the certificate of
incorporation of the Surviving Corporation, until thereafter
changed or amended as provided therein or by Applicable Law.
Section 3.02.Bylaws. At
the Effective Time, the bylaws of the Company, as in effect
immediately prior to the Effective Time, shall be amended and
restated in their entirety as set forth in Exhibit 3.02
hereto, and as so amended and restated, shall be the bylaws of
the Surviving Corporation, until thereafter changed or amended
as provided therein or by Applicable Law.
Section 3.03. Directors
and Officers. From and after the Effective Time,
until successors are duly elected or appointed and qualified in
accordance with Applicable Law, (i) the directors of Merger
Subsidiary at the Effective Time shall be the directors of the
Surviving Corporation and (ii) the officers of Merger
Subsidiary at the Effective Time shall be the officers of the
Surviving Corporation.
Subject to Section 12.04, except as set forth in the
Company Disclosure Schedule, the Company represents and warrants
to Parent, on and as of the date of this Agreement and, solely
with respect to the representations and warranties in
Sections 4.01, 4.02, 4.03, 4.04, 4.05, 4.06, 4.12, 4.13,
4.20, 4.26 (such
representations and warranties, the “Company Core
Representations”) and Section 4.30, as of the
Effective Time, that:
Section 4.01. Corporate
Existence and Power.The Company is a corporation
duly incorporated, validly existing and in good standing under
the laws of the State of Delaware and has all corporate powers
required to carry on its business as currently conducted. In all
material respects, the Company is duly qualified to do business
as a foreign corporation and, as applicable in the relevant
jurisdiction, is in good standing in all jurisdictions where
such qualification is necessary. The Company has heretofore
delivered or made available to Parent prior to the date hereof
true and complete copies of the certificate of incorporation and
bylaws of the Company as currently in effect.
Section 4.02. Corporate
Authorization. (a) The execution, delivery
and performance by each of the Company and the Stockholder
Representative of this Agreement and each other Transaction
Document to which the Company or the Stockholder Representative
is or will be a party and the consummation of the transactions
contemplated hereby and thereby are within its corporate or
limited partnership powers, as applicable, and, except for the
affirmative vote in connection with the consummation of the
Merger of the holders of at least 66.67% of the Company Stock
held by the Investors (as such term is defined in the Company
Stockholders Agreement) (the “Company Stockholder
Approval”), have been duly authorized by all necessary
corporate action on the part of the Company and all necessary
limited partnership action on the part of the Stockholder
Representative and no other corporate, shareholder, partner or
other similar proceedings on the part of the Company or the
Stockholder Representative are necessary to authorize this
Agreement or any other Transaction Document or to consummate the
transactions contemplated hereby or thereby. This Agreement and
each of the other Transaction Documents to which the Company or
the Stockholder Representative is or will be a party
constitutes, or will when executed and delivered constitute, a
valid and binding agreement of the Company and the Stockholder
Representative, as applicable, enforceable against the Company
and the Stockholder Representative, as applicable, in accordance
with its terms, except to the extent that enforceability may be
limited by (i) applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or similar
laws from time to time in effect affecting generally the
enforcement of creditors’ rights and remedies and
(ii) general principles of equity, whether in a proceeding
at law or in equity.
(b) The Company’s Board of Directors has
(i) unanimously determined that this Agreement and the
other Transaction Documents to which the Company is a party, and
the transactions contemplated hereby and thereby (including the
Merger), are advisable, fair to and in the best interests of the
Company’s stockholders, (ii) unanimously approved and
adopted this Agreement and the other Transaction Documents to
which the Company is a party, and the transactions contemplated
hereby and thereby (including the Merger), and
(iii) unanimously recommended adoption of this Agreement by
its stockholders. The members of the Company’s Board of
Directors who are not Affiliates of the ArcLight Funds have
(although not a committee of the Company’s Board of
Directors) (i) unanimously determined that this Agreement
and the other Transaction Documents to which the Company is a
party, and the transactions contemplated hereby and thereby
(including the Merger), are advisable, fair to and in the best
interests of the Company’s stockholders and
(ii) unanimously approved this Agreement and the other
Transaction Documents to which the Company is a party, and the
transactions contemplated hereby and thereby (including the
Merger)
(c) The Stockholder Consents will be executed and delivered
by the Stockholders identified on Section 4.02(c) of the
Company Disclosure Schedule immediately after the execution and
delivery of this Agreement, and when so executed and delivered
will constitute a valid, effective and irrevocable Company
Stockholder Approval and no other vote or action of the holders
of any class or series of the capital stock of the Company will
be necessary under Delaware Law, the Company Stockholders
Agreement or otherwise to consummate the Merger or the
transactions provided for herein.
Section 4.03. Governmental
Authorization. The execution, delivery and
performance by each of the Company and the Stockholder
Representative of this Agreement and each other Transaction
Document to which the Company or the Stockholder Representative
is or will be a party and the consummation of the transactions
contemplated hereby and thereby require no action by or in
respect of, or filing with, any Governmental Authority other
than (i) the filing of a certificate of merger with respect
to the Merger with the
Delaware Secretary of State, (ii) compliance with any
applicable requirements of the HSR Act, (iii) compliance
with any applicable requirements of the 1933 Act, the
1934 Act and any other U.S. state or federal
securities laws and (iv) any other immaterial actions or
filings.
Section 4.04. Non-contravention. The
execution, delivery and performance by each of the Company and
the Stockholder Representative of this Agreement and each other
Transaction Document to which the Company or the Stockholder
Representative is or will be a party and the consummation of the
transactions contemplated hereby and thereby do not and will not
(i) contravene, conflict with, or result in any violation
or breach of any provision of the certificate of incorporation
or bylaws (or similar organizational documents) of the Company
or any of its Subsidiaries, or the certificate of limited
partnership or the limited partnership agreement of either
Stockholder Representative, (ii) assuming compliance with
the matters referred to in Section 4.03, contravene,
conflict with or result in a violation or breach of any
provision of any Applicable Law, (iii) require any consent
or other action by any Person under, constitute a default, or an
event that, with or without notice or lapse of time or both,
would constitute a default, under, or cause or permit the
termination, cancellation, acceleration or other change of any
right or obligation or the loss of any benefit to which the
Company or any of its Subsidiaries or the Stockholder
Representative is entitled under any provision of any agreement
or other instrument binding upon the Company, any of its
Subsidiaries, the Stockholder Representative or any of their
respective properties or assets or any license, franchise,
permit, approval or other authorization of, or any deposit,
letter of credit, trust fund or bond posted by, the Company or
any of its Subsidiaries or (iv) result in the creation or
imposition of any Lien on any asset of the Company or any of its
Subsidiaries, with such exceptions, in the case of
(a) clause (ii) as would not, individually or in the
aggregate, reasonably be expected to be material or
(b) clauses (iii) and (iv), as would not, individually
or in the aggregate, reasonably be expected to have a Company
Material Adverse Effect.
Section 4.05. Capitalization;
Ownership of Shares. (a) The authorized
capital stock of the Company consists of 101,000,000 shares
of capital stock par value $0.01 per share, of which
100,000,000 shares are Company Stock (of which
3,000,000 shares are Company Restricted Stock) and
1,000,000 are shares of the Company’s undesignated
preferred stock. As of the date hereof, there are issued and
outstanding: (i) 51,670,642 shares of Company Stock,
of which 519,306 shares are vested Company Restricted Stock
and 1,951,336 shares are unvested Company Restricted Stock
and (ii) no shares of the Company’s preferred stock.
All outstanding shares of capital stock of the Company have been
duly authorized and validly issued and are fully paid and
nonassessable. No Subsidiary or Affiliate of the Company owns
any shares of capital stock of the Company.
(b) Except as set forth in this Section 4.05, there
are no outstanding (i) shares of capital stock or voting
securities of the Company, (ii) securities of the Company
or any of its Subsidiaries convertible into or exchangeable for
shares of capital stock or voting securities of the Company or
(iii) options or other rights to acquire from the Company
or any of its Subsidiaries, or other obligation of the Company
or any of its Subsidiaries to issue, any capital stock, voting
securities or securities convertible into or exchangeable for
capital stock or voting securities of the Company (the items in
clauses (i), (ii), and (iii) being referred to collectively
as the “Company Securities”). Other than
pursuant to the Stock Plan, there are no outstanding obligations
of the Company or any of its Subsidiaries to repurchase, redeem
or otherwise acquire any of the Company Securities.
(c) Section 4.05(c) of the Company Disclosure Schedule
contains a complete and correct list of the Company’s
Stockholders and specifies the number of shares of Company Stock
(including Company Restricted Stock) owned by each such
Stockholder. Section 4.05(c) of the Company Disclosure
Schedule sets forth each shareholders agreement or similar
agreement with or among any of the Company’s Stockholders,
including any agreement that provides for preemptive rights or
imposes any limitation or restriction on Company Stock,
including any restriction on the right of a holder to vote, sell
or otherwise dispose of such Company Stock. Other than the Stock
Plan, neither the Company nor any Subsidiary of the Company has
adopted, maintains or has maintained any stock option plan or
other plan providing for equity compensation to any Person.
There are no outstanding or authorized stock appreciation,
phantom stock, profit participation or other similar rights with
respect to the Company or any of its Subsidiaries.
(d) The information set forth in the Company Outstanding
Stock Number Certificate delivered pursuant to
Section 9.02(j) will be true and correct in all respects.
(e) No interest will be paid in cash on the Company
Convertible Debt at or prior to the Closing. Immediately prior
to the Effective Time, in accordance with Section 7 of the
Company Convertible Debt NPA, (i) the Company Convertible
Debt Notes (including any interest on the Company Convertible
Debt Notes that has been added to the principal thereof, and any
accrued and unpaid interest on the Company Convertible Debt
Notes) will be converted into the right to receive a number of
shares of Company Stock in accordance with Section 7 of the
Company Convertible Debt NPA and will be cancelled and cease to
be issued and outstanding and (ii) the Company Convertible
Debt Notes will be surrendered and exchanged for Company Stock.
From the date of the Company Convertible Debt NPA through the
date hereof, the Company has not taken any action that would
have violated Section 6.06 if it had been in effect at that
time.
(f) Prior to the date hereof, the Company has issued
$100,000,000 in aggregate principal amount of Company
Convertible Debt Notes pursuant to the Company Convertible Debt
NPA and has repaid $100,000,000 of existing indebtedness of the
Company and its Subsidiaries under the Company Credit Agreement
without the payment of any penalty or premium. The Company has
not incurred, and will not incur, any fees or expenses in
respect of any underwriter, finder or broker (or any similar fee
or expense) in connection with the issuance of the Company
Convertible Debt Notes.
Section 4.06.Subsidiaries. (a) Each
Subsidiary of the Company is a limited liability company duly
organized, validly existing and, as applicable in the relevant
jurisdiction, in good standing under the laws of its
jurisdiction of organization, and has all corporate (or other
organizational) powers required to carry on its business as
currently conducted. In all material respects, each such
Subsidiary is duly qualified to do business as a foreign company
and, as applicable in the relevant jurisdiction, is in good
standing in all jurisdictions where such qualification is
necessary. Section 4.06(a) of the Company Disclosure
Schedule sets forth a complete and correct list of all
Subsidiaries of the Company and their respective jurisdictions
of organization.
(b) All of the outstanding capital stock of, or other
voting securities or ownership interests in, each Subsidiary of
the Company, is owned by the Company, directly or indirectly,
free and clear of any Lien and free of any other limitation or
restriction (including any restriction on the right to vote,
sell or otherwise dispose of such capital stock or other voting
securities or ownership interests). There are no outstanding
(i) securities of the Company or any of its Subsidiaries
convertible into or exchangeable for shares of capital stock or
other voting securities or ownership interests in any Subsidiary
of the Company or (ii) options or other rights to acquire
from the Company or any of its Subsidiaries, or other obligation
of the Company or any of its Subsidiaries to issue, any capital
stock or other voting securities or ownership interests in, or
any securities convertible into or exchangeable for any capital
stock or other voting securities or ownership interests in, any
Subsidiary of the Company (the items in clauses (i) and
(ii) being referred to collectively as the “Company
Subsidiary Securities”). There are no outstanding
obligations of the Company or any of its Subsidiaries to
repurchase, redeem or otherwise acquire any of the Company
Subsidiary Securities.
(c) Other than (i) the Subsidiaries set forth on
Section 4.06(a) of the Company Disclosure Schedule and
(ii) investments (which, as of the date hereof, are as set
forth on Section 4.06(c) of the Company Disclosure
Schedule) made with funds held in escrow accounts established to
support reclamation obligations of the Company or any of its
Subsidiaries, neither the Company nor any Subsidiary of the
Company owns, directly or indirectly, any shares of capital
stock, securities, ownership interests or investments in any
other Person (collectively, “Third Party
Interests”). Neither the Company nor any Subsidiary of
the Company has any rights to, or is bound by any commitment or
obligation to, acquire by any means, directly or indirectly, any
Third Party Interests or to make any investment in, or
contribution or (other than pursuant to commercial transactions
in the ordinary course of business or to employees in the
ordinary course of business) advance to, any Person.
Section 4.07. Financial
Statements.
(a) The audited consolidated balance sheets as of
December 31, 2006 and December 31, 2005 and the
related audited consolidated statements of operations,
statements of shareholders’ equity and statements of
cash flows for each of the years ended December 31, 2006
and December 31, 2005 of the Company and its Subsidiaries
fairly present, in all material respects, the consolidated
financial position and shareholders’ equity of the Company
and its Subsidiaries as of the dates thereof and their
consolidated results of operations and cash flows for the
periods then ended and have been prepared in compliance with
GAAP applied on a consistent basis (except as may be indicated
in the notes thereto) and in accordance with the books and
records of the Company and its Subsidiaries.
(b) The audited balance sheet as of December 31, 2007
and the related audited statement of operations, statement of
shareholders’ equity and statement of cash flows for the
year then ended of the Company and its Subsidiaries fairly
present, in all material respects, the consolidated financial
position and shareholders’ equity of the Company and its
Subsidiaries as of the date thereof and their consolidated
results of operations and cash flows for the period then ended
and have been prepared in compliance with GAAP applied on a
consistent basis (except as may be indicated in the notes
thereto) and in accordance with the books and records of the
Company and its Subsidiaries.
Section 4.08. Absence
of Certain Changes. From the Company Balance
Sheet Date to the date hereof, the business of the Company and
its Subsidiaries has been conducted in the ordinary course
consistent with past practices, and since the Company Balance
Sheet Date:
(a) there has not been any event, occurrence, development
or state of circumstances or facts which, individually or in the
aggregate, has had or would reasonably be expected to have a
Company Material Adverse Effect; and
(b) neither the Company nor any of its Subsidiaries has
taken any action that would have been prohibited by
Section 6.01 (other than Sections 6.01(c), 6.01(i) or
6.01(m)) if this Agreement had been in effect at the time
thereof.
Section 4.09. No
Undisclosed Material Liabilities. There are no
liabilities or obligations of the Company or any of its
Subsidiaries of any kind whatsoever, whether accrued,
contingent, absolute, determined, determinable or otherwise, and
to the knowledge of the Company, there is no existing condition,
situation or set of circumstances (other than as a result of
conducting operations in the coal industry generally, except to
the extent disproportionately impacting the Company or its
Subsidiaries as compared to other entities operating in the coal
industry) that would reasonably be expected to result in such a
liability or obligation, other than:
(a) liabilities or obligations to the extent disclosed,
reflected or reserved against, in the Company Balance Sheet or
the notes thereto;
(b) liabilities or obligations incurred in the ordinary
course of business since the Company Balance Sheet Date
consistent with past practices;
(c) liabilities that would not reasonably be expected to
have, individually or in the aggregate, a Company Material
Adverse Effect;
(d) liabilities incurred as a result of the performance of
the Company’s obligations under this Agreement; and
(e) liabilities or obligations arising pursuant to the
terms (and not as a result of breach or default by the Company
or any of its Subsidiaries) of contracts or agreements of the
Company or any of its Subsidiaries set forth in
Section 4.21(a) of the Company Disclosure Schedule.
Section 4.10. Compliance
with Laws; Mining Compliance Matters.
(a) The Company and each of its Subsidiaries is, and
(except as would not reasonably be expected to result in a
current or future liability on or adverse consequence to the
Company or any of its Subsidiaries) has been, in all material
respects in compliance with all Applicable Law, including the
Identified Mining Laws but not including any other Environmental
Laws, and to the knowledge of the Company is not under
investigation with respect to and has not been threatened to be
charged with or given written notice from any Governmental
Authority, and the Company does not otherwise have knowledge of,
any material violation of any Applicable
Law, including the Identified Mining Laws but not including any
other Environmental Laws. Neither the Company nor any of its
Subsidiaries is subject to any material order, writ, judgment,
award, injunction or decree of any arbitrator or Governmental
Authority that the Company or any of its Subsidiaries has
received in writing or otherwise has knowledge of.
(b) Section 4.10(b) of the Company Disclosure Schedule
lists all material applications for permits to be issued by
mining authorities to the Company or any of its Subsidiaries
(the “Company Material Mining Applications”).
Neither the Company nor any of its Subsidiaries has received any
written communication from the applicable permitting authority
with respect to any Company Material Mining Application that
(i) indicates that such Company Material Mining Application
has been denied or (ii) requests the Company or any of its
Subsidiaries to provide additional information with respect to
such Company Material Mining Application.
(c) Except as set forth on Section 4.10(c) of the
Company Disclosure Schedule, the Company and its Subsidiaries
have posted all material deposits, letters of credit, trust
funds, bid bonds, performance bonds, reclamation bonds and
surety bonds (and all such similar undertakings) required to be
posted in connection with their operations (the deposits,
letters of credit, trust funds, bid bonds, performance bonds,
reclamation bonds and surety bonds (and all such similar
undertakings) posted in connection with the operations of the
Company and its Subsidiaries, collectively, the “Company
Surety Bonds”). The Company Surety Bonds are sufficient
to conduct the business of the Company and its Subsidiaries as
currently conducted. The Company and its Subsidiaries are and
have been in compliance in all material respects with the
Company Surety Bonds, and the operation of the Company’s
and its Subsidiaries’ coal mining and processing operations
and the state of reclamation with respect to the Company Surety
Bonds are “current” or in “deferred status”
regarding reclamation obligations and otherwise are and have
been in compliance with all applicable mining, reclamation and
other analogous Applicable Laws, except where noncompliance
would not (i) interfere in any material respect with the
ability of the Company and its Subsidiaries to continue to
operate their assets and conduct their business as currently
conducted or otherwise be material or (ii) materially
adversely affect or delay the consummation of the transactions
contemplated by this Agreement.
(d) Neither the Company nor any of its Subsidiaries (nor
any Person “owned or controlled” by any of them) has
received written notice from the Federal Office of Surface
Mining or the agency of any state administering the Surface
Mining Control and Reclamation Act of 1977 (or any comparable
state statute) or otherwise has knowledge that it is
(i) ineligible to receive additional surface mining permits
or other licenses or authorizations or (ii) under
investigation to determine whether its eligibility to receive
such permits or other licenses or authorizations should be
revoked, i.e., “permit blocked.” As used in
this Section 4.10(d), “owned or controlled” shall
be defined as set forth in 30 C.F.R. Section 773.5
(2000).
Section 4.11. Litigation. There
is no action, suit, investigation or proceeding pending against,
or, to the knowledge of the Company, threatened against or
affecting, the Company, any of its Subsidiaries, any present or
former officer, director or employee of the Company or any of
its Subsidiaries or any Person for whom the Company or any
Subsidiary may be liable or any of their respective properties
before any court or arbitrator or before or by any Governmental
Authority, (i) that if determined adversely to the Company
or any of its Subsidiaries, would reasonably be expected to be,
individually or in the aggregate, material or (ii) that in
any manner challenges or seeks to prevent, enjoin, alter or
materially delay the Merger or any of the other transactions
contemplated hereby.
Section 4.12. Investment
Banker and Finders’ Fees. Except for
Citigroup Global Markets Inc., a copy of whose engagement
agreement has been provided to Parent prior to the date hereof,
there is no investment banker, broker, finder or other
intermediary that has been retained by, or is authorized to act
on behalf of, the Company or any of its Subsidiaries who might
be entitled to any fee or commission from Parent, the Company or
any of their respective Affiliates in connection with the
transactions contemplated by this Agreement.
Section 4.13. Opinion
of Financial Advisor. The Board of Directors of
the Company has received the opinion of Citigroup Global Markets
Inc., financial advisor to the Company, to the effect that, as
of the date of such opinion and subject to the assumptions,
limitations and qualifications reflected therein, the exchange
ratio (as defined in such opinion) is fair, from a financial
point of view, to the holders of Company Stock (other than the
ArcLight Funds and their respective Affiliates). The Company,
solely for informational purposes, will after receipt of such
opinion and concurrently with the execution and delivery of this
Agreement, furnish Parent’s outside legal counsel with a
correct and complete copy of such opinion.
Section 4.14. Taxes. (a) All
material Tax Returns required by Applicable Law to be filed with
any Taxing Authority by, or on behalf of, the Company or any of
its Subsidiaries have been filed when due in accordance with all
Applicable Law, and all such material Tax Returns were at the
time of filing, true and complete in all material respects.
(b) The Company and each of its Subsidiaries has paid (or
has had paid on its behalf) or has withheld and remitted to the
appropriate Taxing Authority all Taxes due and payable, or,
where payment is not yet due or being contested in good faith,
has established (or has had established on its behalf and for
its sole benefit and recourse) in accordance with GAAP an
adequate accrual for all Taxes through the end of the last
period for which the Company and its Subsidiaries ordinarily
record items on their respective books.
(c) Any income and franchise Tax Returns of the Company or
its Subsidiaries filed or required to be filed with respect to
the Tax years ended on or before December 31, 2003 have
been examined and closed or are Tax Returns with respect to
which the applicable period for assessment under Applicable Law,
after giving effect to extensions or waivers, has expired.
(d) There is no claim, audit, action, suit, proceeding or
investigation now pending or, to the Company’s knowledge,
threatened against or with respect to the Company or its
Subsidiaries in respect of any Tax or Tax asset.
(e) During the five-year period ending on the date hereof,
neither the Company nor any of its Subsidiaries was a
distributing corporation or a controlled corporation in a
transaction intended to be governed by Section 355 of the
Code.
(f) Neither the Company nor any of its Subsidiaries owns an
interest in real property in any jurisdiction which taxes the
transfer of an interest in an entity that owns an interest in
real property as a transfer of the interest in real property.
(g) Section 4.14(g) of the Company Disclosure Schedule
contains (i) a list of all jurisdictions (whether foreign
or domestic) in which the Company or any of its Subsidiaries is
qualified to do business and (ii) a list of all
jurisdictions (whether foreign or domestic) in which the Company
or any of its Subsidiaries currently files Tax Returns, showing
in each case the type of Tax Return filed. No jurisdiction in
which the Company does not file Tax Returns has asserted that
the Company is or may be liable for Tax, or required to file a
Tax Return, in such jurisdiction.
(h) (i) Neither the Company nor any of its
Subsidiaries has been a member of an affiliated, consolidated,
combined or unitary group other than one of which the Company
was the common parent (provided that Apogee Coal Company, LLC,
Catenary Coal Company, LLC and Hobet Mining, LLC were formerly C
corporations that were members of a consolidated group with Arch
Coal, Inc., but are not successors to such C corporations under
Section 381(a) of the Code); (ii) neither the Company
nor any of its Subsidiaries is party to any Tax Sharing
Agreement or to any other agreement or arrangement referred to
in clause (ii) or (iii) of the definition of
“Tax”; (iii) no amount of the type described in
clause (ii) or (iii) of the definition of
“Tax” is currently payable by either the Company or
any of its Subsidiaries, regardless of whether such Tax is
imposed on the Company or any of its Subsidiaries; and
(iv) neither the Company nor any of its Subsidiaries has
entered into any agreement or arrangement with any Taxing
Authority with regard to the Tax liability of the Company or any
of its Subsidiaries affecting any Tax period for which the
applicable statute of limitations, after giving effect to
extensions or waivers, has not expired.
(i) Prior to the date hereof, the Company has provided
Parent with copies of or access to (i) all Tax Returns of
the Company or any of its Subsidiaries that were filed or became
due on or after January 1, 2005 and (ii) all material
agreements relating to Taxes of the Company or any of its
Subsidiaries, including any Tax Sharing Agreements, effective
during that period.
(j) “Tax” means (i) any tax,
governmental fee or other like assessment or charge of any kind
whatsoever (including withholding on amounts paid to or by any
Person), together with any interest, penalty, addition to tax or
additional amount imposed by any Governmental Authority (a
“Taxing Authority”) responsible for the
imposition of any such tax (domestic or foreign), and any
liability for any of the foregoing as transferee,
(ii) liability for the payment of any amount of the type
described in clause (i) as a result of being or having been
before the Effective Time a member of an affiliated,
consolidated, combined or unitary group, or a party to any
agreement or arrangement, as a result of which liability of the
Company or any of its Subsidiaries, or Parent or any of its
Subsidiaries, as the case may be, to a Taxing Authority is
determined or taken into account with reference to the
activities of any other Person, and (iii) liability of the
Company or any of its Subsidiaries, or Parent or any of its
Subsidiaries, as the case may be, for the payment of any amount
as a result of being party to any Tax Sharing Agreement or with
respect to the payment of any amount imposed on any person of
the type described in (i) or (ii) as a result of any
existing express or implied agreement or arrangement (including
an indemnification agreement or arrangement). “Tax
Return” means any report, return, document, declaration
or other information or filing required to be supplied to any
Taxing Authority with respect to Taxes, including information
returns, any documents with respect to or accompanying payments
of estimated Taxes, or with respect to or accompanying requests
for the extension of time in which to file any such report,
return, document, declaration or other information. “Tax
Sharing Agreements” means all existing agreements or
arrangements (whether or not written) binding the Company or any
of its Subsidiaries, or Parent or any of its Subsidiaries, as
the case may be, that provide for the allocation, apportionment,
sharing or assignment of any Tax liability or benefit, or the
transfer or assignment of income, revenues, receipts, or gains
for the purpose of determining any Person’s Tax liability
(including without limitation any tax sharing agreement
currently in effect among the Company and any of its
Subsidiaries as well as any indemnification agreement or
arrangement pertaining to the sale or lease of assets or
subsidiaries).
Section 4.15. Tax
Treatment. Neither the Company nor any of its
Affiliates has taken or agreed to take any action, or is aware
of any fact or circumstance, that would prevent the Merger from
qualifying as a reorganization within the meaning of
Section 368 of the Code (a “368
Reorganization”).
Section 4.16. Employee
Benefit Plans. (a) Except for items of a de
minimis nature, Section 4.16 of the Company Disclosure
Schedule contains a correct and complete list identifying each
“employee benefit plan,” as defined in
Section 3(3) of ERISA, and, whether or not subject to
ERISA, each employment, severance, change in control, retention
or similar contract, plan, arrangement or policy and each other
plan or arrangement (written or oral) providing for
compensation, bonuses, profit-sharing, stock option or other
equity-based rights or other forms of incentive or deferred
compensation, vacation benefits, insurance (including any
self-insured arrangements), health or medical benefits, employee
assistance program, disability or sick leave benefits,
workers’ compensation, supplemental unemployment benefits,
severance benefits, post-employment or retirement benefits
(including compensation, pension, health, medical or life
insurance benefits) and any other plan, agreement, program or
policy which is maintained, sponsored or contributed to by the
Company or any ERISA Affiliate of the Company and covers any
current or former director, officer, employee or independent
consultant of the Company or any of its Subsidiaries, or with
respect to which the Company or any of its Subsidiaries has any
liability. Copies (which copies are correct and complete in all
material respects) of such plans (and, if applicable, related
trust or funding agreements or insurance policies) and all
amendments thereto, most recent summary plan descriptions and
written interpretations thereof have been furnished to or made
available to Parent together with the most recent annual report
(Form 5500 including, if applicable, Schedule B
thereto) and tax return (Form 990) prepared in
connection with any such plan or trust. Such plans (disregarding
the exception for those of a de minimis nature) are referred to
collectively herein as the “Company Employee
Plans.”
(b) No Company Employee Plan is subject to Title IV of
ERISA (other than a “multiemployer plan,” as defined
below).
(c) With respect to any multiemployer plan, as defined in
Section 3(37) of ERISA (a “Multiemployer
Plan”), to which the Company, its Subsidiaries or any
of their ERISA Affiliates has any liability or contributes (or
has at any time contributed or had an obligation to contribute):
(i) none of the Company, its Subsidiaries or any of their
ERISA Affiliates has incurred any withdrawal liability under
Title IV of ERISA
that remains unsatisfied or would be subject to such liability
if, as of the Closing Date, the Company, its Subsidiaries or any
of their ERISA Affiliates were to engage in a complete
withdrawal (as defined in Section 4203 of ERISA) or partial
withdrawal (as defined in Section 4205 of ERISA) from any
such multiemployer plan; and (ii) to the knowledge of the
Company, no such multiemployer plan is in reorganization or
insolvent (as those terms are defined in Sections 4241 and
4245 of ERISA, respectively).
(d) Each Company Employee Plan which is intended to be
qualified under Section 401(a) of the Code has received a
favorable determination letter, or has pending or has time
remaining in which to file under the applicable remedial
amendment period, an application for such determination from the
Internal Revenue Service, and the Company is not aware of any
reason why any such determination letter would not be issued.
Each Company Employee Plan has been maintained in material
compliance with its terms and with the requirements prescribed
by any and all statutes, orders, rules and regulations,
including ERISA and the Code, which are applicable to such
Company Employee Plan. No material events have occurred with
respect to any Company Employee Plan that would result in
payment or assessment by or against the Company of any material
excise taxes under Sections 4972, 4975, 4976, 4977, 4979,
4980B, 4980D, 4980E or 5000 of the Code.
(e) The consummation of the transactions contemplated by
this Agreement will not (either alone or together with any other
event) entitle any employee or independent contractor of the
Company or any of its Subsidiaries to severance pay or
accelerate the time of payment or vesting (except as otherwise
may be required under Section 411(d)(3) of the Code) or
trigger any payment of funding (through a grantor trust or
otherwise) of compensation or benefits under, increase the
amount payable or trigger any other material obligation pursuant
to, any Company Employee Plan. There is no contract, plan or
arrangement (written or otherwise) covering any current or
former director, officer, employee or independent contractor of
the Company or any of its Subsidiaries that, individually or
collectively, would entitle any such individual to any severance
or other payment solely as a result of the transactions
contemplated hereby, or would give rise to the payment of any
amount that would not be deductible pursuant to the terms of
Section 280G or 162(m) of the Code. Section 4.16(e) of
the Company Disclosure Schedule lists (i) all the
agreements, arrangements and other instruments which give rise
to an obligation to make or set aside amounts payable to or on
behalf of the officers of the Company and its Subsidiaries as a
result of the transactions contemplated by this Agreement
and/or any
subsequent employment termination (whether by the Company or the
officer), true and complete copies of which have been previously
provided to Parent and (ii) the maximum aggregate amounts
so payable to each such individual as a result of the
transactions contemplated by this Agreement
and/or any
subsequent employment termination (whether by the Company or the
officer).
(f) Except to the extent set forth in the Company Balance
Sheet, neither the Company nor any of its Subsidiaries has any
liability in respect of post-retirement health, medical,
disability or life insurance benefits for retired, former or
current employees of the Company or its Subsidiaries except as
required to avoid excise tax under Section 4980B of the
Code.
(g) There has been no amendment to, written interpretation
or announcement (whether or not written) by the Company or any
of its Affiliates relating to, or change in employee
participation or coverage under, any Company Employee Plan which
would increase materially the expense of maintaining such
Company Employee Plan above the level of the expense incurred in
respect thereof for the fiscal year ended December 31, 2007.
(h) Neither the Company nor any of its Subsidiaries is a
party to or subject to, or is currently negotiating in
connection with entering into, any collective bargaining
agreement or other contract or understanding with a labor union
or organization.
(i) All contributions and payments accrued under each
Company Employee Plan, determined in accordance with prior
funding and accrual practices, as adjusted to include
proportional accruals for the period ending as of the date
hereof, have been discharged and paid on or prior to the date
hereof except to the extent set forth in the Company Balance
Sheet.
(j) There is no action, suit, investigation, audit or
proceeding pending against or involving or, to the knowledge of
the Company, threatened against or involving, any Company
Employee Plan before any Governmental Authority.
(k) No Company Employee Plan is maintained outside the
jurisdiction of the United States or covers any employee
residing or working outside the United States.
(l) No current or former director, officer, employee or
independent contractor of the Company or any of its Subsidiaries
will become entitled to any bonus, retirement, severance, job
security or similar benefit or enhanced such benefit (including
acceleration of vesting or exercise of an incentive award) as a
result of the transactions contemplated hereby.
(m) The Company Balance Sheet fairly and accurately
reflects as of the date thereof all liabilities and obligations
related to any black lung disease claims and benefits arising
under any state or federal law, claims and benefits arising
under any state workers’ compensation laws, and
post-retirement health or pension claims and benefits.
Section 4.17. Employees. The
Company has provided or made available to Parent prior to the
date hereof a true and complete list, as of March 27, 2008,
of (a) the names, titles and annual salaries of all
officers of the Company and its Subsidiaries and all other
employees of the Company and its Subsidiaries with base annual
salaries equal to or in excess of $100,000 (such list to be
updated by the Company as of immediately prior to the Closing to
reflect any terminations and new hires) and (b) the wage
rates for non-salaried employees of the Company and its
Subsidiaries (by classification). The Company has disclosed to
Parent prior to the date hereof the name of any employee
referred to in clause (a) who, to the knowledge of the
Company, has indicated to the Company or any of its Subsidiaries
that he or she intends to resign or retire as a result of the
transactions contemplated by this Agreement or otherwise within
one year after the Closing.
Section 4.18. Labor
Matters.The Company and its Subsidiaries are not
engaged in any material respect in any unfair labor practice
which would reasonably be expected to be, individually or in the
aggregate, material. There is no unfair labor practice charge or
material grievance arising out of a collective bargaining
agreement, other current labor agreement with any labor union or
organization, or other material grievance proceeding against the
Company or any of its Subsidiaries pending, or, to the knowledge
of the Company, threatened. Since two years prior to the date of
this Agreement there has been no unfair labor practice charge or
complaint filed against the Company or any of its Subsidiaries,
or to the knowledge of the Company, pending or threatened,
before (A) the National Labor Relations Board or any
similar state agency, or (B) the Equal Employment
Opportunity Commission or any similar state agency responsible
for the prevention of unlawful employment practices. There is no
strike or lockout or material slowdown, work stoppage or other
labor dispute pending, or to the knowledge of the Company,
threatened against, involving or otherwise materially affecting
the Company or any of its Subsidiaries. Since two years prior to
the date of this Agreement, any and all reductions of workforce
have been carried out in all material respects in accordance
with all Applicable Law.
Section 4.19. Environmental
Matters. Except as does not and would not
reasonably be expected to have, individually or in the
aggregate, a Company Material Adverse Effect:
(a) The Company and its Subsidiaries are and have been in
compliance with all Environmental Laws and all Environmental
Permits; such Environmental Permits are valid and in full force
and effect and will not be terminated or impaired or become
terminable, in whole or in part, as a result of this Agreement
and the other Transaction Documents or the consummation of the
transactions contemplated herein or therein.
(b) None of the Company nor any of its Subsidiaries has
received any Environmental Claim or written notice of any
threatened Environmental Claim, or has any knowledge of any
threat of such an Environmental Claim, regarding or resulting
from the activities or business of the Company or any of its
Subsidiaries, or any property or assets currently or formerly
owned, operated or used by the Company or any of its
Subsidiaries, in each case that (i) has been outstanding
for more than 30 days, (ii) would reasonably be
expected to result in (A) an action by a Governmental
Authority, (B) a determination that
there is a pattern of violations or (C) the closure of any
operations of the Company or any of its Subsidiaries or
(iii) results in or would reasonably be expected to result
in liability to the Company or any of its Subsidiaries.
(c) None of the Company nor any of its Subsidiaries has
entered into, has agreed to, has been issued or to the knowledge
of the Company is otherwise subject to, any material order,
writ, judgment, award, injunction or decree of any arbitrator or
Governmental Authority under any Environmental Law regarding the
Company or any of its Subsidiaries or any property or assets
currently or formerly owned, operated or used by the Company or
any of its Subsidiaries, in any such case that would interfere
with the respective ability of the Company or any of its
Subsidiaries to continue to operate their respective assets and
conduct their respective businesses as currently conducted or
would result in liability to the Company or any of its
Subsidiaries.
(d) None of the Company nor any of its Subsidiaries has
Released any Hazardous Materials in violation of Environmental
Law or in a manner that would reasonably be expected to result
in liability under Environmental Laws or Environmental Permits,
and, to the knowledge of the Company, no other Person has
Released any Hazardous Materials, and Hazardous Materials are
not otherwise present, at any property currently or formerly
owned or operated by the Company or any of its Subsidiaries in
violation of any Environmental Law or Environmental Permits or
in a manner that would reasonably be expected to result in
liability to the Company or any of its Subsidiaries.
(e) No property currently owned or operated by the Company
or any of its Subsidiaries (i) is listed or, to the
knowledge of the Company or any of its Subsidiaries, proposed
for listing on the CERCLA National Priorities List or CERCLIS
list or any similar Governmental Authority’s list of sites
at which remedial action is or may be necessary or
(ii) contains asbestos or asbestos-containing materials, in
either case in a condition constituting a violation of
Environmental Law or as would reasonably be expected to result
in liability to the Company or any of its Subsidiaries.
(f) None of the Company nor any of its Subsidiaries has
disposed of, transported or arranged for the disposal or
transportation of, any Hazardous Materials in a manner or to a
location that would reasonably be expected to result in
liability to the Company or any of its Subsidiaries under
Environmental Law.
(g) Neither the Company nor any Subsidiary of the Company
is in default under, and no condition exists that with notice or
lapse of time or both would constitute a default under, any of
the Environmental Permits. Neither the Company nor any of its
Subsidiaries has received written notice that the Person issuing
or authorizing any such Environmental Permit intends to
terminate or will refuse to renew or reissue any such
Environmental Permit upon its expiration.
(h) To the knowledge of the Company, (A) there are no
material applications for Environmental Permits in the name of
the Company or any of its Subsidiaries other than those set
forth on Section 4.19(h) of the Company Disclosure Schedule
(the “Company Material Environmental
Applications”); and (B) the Company or one of its
Subsidiaries will, on any grant of any of such applications,
hold legal or beneficial title to the interest in each such
application as set forth on Section 4.19(h) of the Company
Disclosure Schedule. Each of the Company Material Environmental
Applications has been made in accordance with Applicable Laws.
Neither the Company nor any of its Subsidiaries has received any
written communication from any Governmental Authority that
indicates that any of the Company Material Environmental
Applications will not be timely granted or will be subject to
any material restrictions, limitations or unusual requirements.
(i) There has been no environmental investigation, study,
audit, test, review or other analysis conducted of which the
Company has knowledge in relation to the current or prior
business of the Company or any of its Subsidiaries or any
property or facility now or previously owned or leased by the
Company or any of its Subsidiaries that has not been delivered
or made available to Parent at least five Business Days prior to
the date hereof.
Section 4.20. Antitakeover
Statutes; Company Stockholders Agreement; Absence of Dissenters
Rights. (a) The Company has taken all action
necessary to exempt the Merger, this Agreement and the
transactions
contemplated hereby from Section 203 of Delaware Law, and,
accordingly, neither such Section nor any other antitakeover or
similar statute or regulation applies or purports to apply to
any such transactions. No other “control share
acquisition,”“fair price,”“moratorium” or other antitakeover laws enacted under
U.S. state or federal laws apply to this Agreement or any
of the transactions contemplated hereby.
(b) The execution, delivery or performance of this
Agreement and the other Transaction Documents, and the
consummation of the transactions contemplated hereby and
thereby, including the Merger, complies and will comply in all
material respects with any applicable provisions of the Company
Stockholders Agreement.
(a) Except as set forth on Section 4.21(a) of the
Company Disclosure Schedule, as of the date hereof, neither the
Company nor any of its Subsidiaries is a party to or bound by,
whether in writing or not, any of the following (other than
agreements solely between or among the Company and its
wholly-owned Subsidiaries and not containing any rights of or
obligations to any third party) (any item set forth in one
sub-section of Section 4.21(a) of the Company Disclosure
Schedule need not be repeated in another sub-section of
Section 4.21(a) if applicability to such other sub-section
is reasonably apparent from the disclosure set forth in the
first such sub-section):
(i) any agreement or series of related agreements for the
purchase, sale (other than coal supply or coal product sales
agreements), receipt, lease or use of materials, supplies,
goods, services, equipment or other assets providing for either
(A) annual payments by or to the Company or any of its
Subsidiaries of $500,000 or more or (B) aggregate payments
by or to the Company or any of its Subsidiaries of $2,500,000 or
more;
(ii) any partnership, joint venture, limited liability
company, operating, shareholder, investor rights or other
similar agreement or arrangement with any Person;
(iii) any distributor, dealer, sales agency, sales
representative, marketing or similar contracts;
(iv) any agreement or series of related agreements relating
to, or entered into in connection with, the acquisition or
disposition of the equity securities of any Person (other than
in respect of the investments with funds held in escrow accounts
established to support reclamation obligations of the Company or
any of its Subsidiaries), any business or any material amount of
assets outside the ordinary course of business (in each case,
whether by merger, sale of stock, sale of assets or otherwise);
(v) any agreement relating to indebtedness for borrowed
money, the deferred purchase price of property or the prepaid
sale of goods or products (in any such case, whether incurred,
assumed, guaranteed or secured by any asset and, in the case of
agreements relating to the deferred purchase price of property,
with a value in excess of $100,000), including indentures,
mortgages, loan agreements, capital leases, security agreements
or other agreements for the incurrence of indebtedness, other
than trade accounts payable incurred in the ordinary course of
business;
(vi) any agreement relating to any interest rate, currency
or commodity derivative or hedging transaction (excluding any
agreements for the purchase of diesel fuel where physical
delivery is intended);
(vii) any agreement (including any keepwell agreement)
under which (A) to the knowledge of the Company any Person
has directly or indirectly guaranteed any liabilities or
obligations of the Company or any of its Subsidiaries (other
than any such guarantees by the Company and its wholly-owned
Subsidiaries), in case of each such liability or obligation, in
an amount in excess of $1,000,000 or (B) the Company or any
of its Subsidiaries has, directly or indirectly, guaranteed any
liabilities or obligations of any other Person (other than the
Company or any wholly-owned Subsidiary);
(viii) any agreement that (A) limits the freedom of
the Company or any of its Subsidiaries to compete in any line of
business or with any Person or in any area or which would so
limit the freedom of Parent, the Company or any of their
respective Affiliates after the Effective Time or
(B) contains
exclusivity or “most favored nation” obligations or
restrictions binding on the Company or any of its Subsidiaries
or that would be binding on Parent or its Affiliates after the
Effective Time;
(ix) any employment, consultancy, deferred compensation,
loan, retention, bonus, severance, retirement or other similar
agreement or arrangement (including any amendment to any such
existing agreement or arrangement) with any director, officer or
employee of the Company or any of its Subsidiaries (other than
loans to non-executive employees not in excess of $10,000
individually or $100,000 in the aggregate);
(x) any consulting agreement or similar arrangement with an
independent contractor providing for (i) annual payments by
the Company or any of its Subsidiaries of $100,000 or more,
(ii) aggregate payments by the Company or any of its
Subsidiaries of $250,000 or more or (iii) a term in excess
of three years;
(xi) any collective bargaining agreement;
(xii) any contracts or agreements relating to the provision
of contract mining (excluding any agreement solely with respect
to the provision of contract labor) by or to the Company or any
of its Subsidiaries;
(xiii) any lease or sublease of or relating to
(A) real property leased to others, (B) tangible
personal property leased to others or (C) mining or
exploration rights leased to others;
(xiv) any contracts or agreements related to the
Company’s or its Subsidiaries storage or transportation of
coal (including stock piling and loading agreements) providing
for either (i) annual payments by the Company or any of its
Subsidiaries of $250,000 or more or (ii) aggregate payments
by the Company or any of its Subsidiaries of $1,000,000 or more;
(xv) any coal supply agreement or coal product sales
agreement; or
(xvi) any other agreement, commitment, arrangement or plan
not of a type described above but with a value in excess of
$1,000,000.
(b) Each agreement, contract, plan, lease, arrangement or
commitment disclosed or required to be disclosed pursuant to
Section 4.21(a) (and, for purposes of (A) the making
of this representation and warranty as of the Effective Time
solely for purposes of Section 4.30 and (B) the
satisfaction or failure of the condition set forth in
Section 9.02(a)(iv), each agreement, contract, plan, lease,
arrangement or commitment entered into between the date hereof
and the Closing Date that would have been required to be
disclosed pursuant to Section 4.21(a) if it had been in
effect as of the date hereof) is referred to as a
“Material Contract”. Each Material Contract is,
to the Company’s knowledge, a valid and binding agreement
of the parties thereto (other than the Company and its
Subsidiaries), and, to the Company’s knowledge, is in full
force and effect and in all material respects enforceable
against such other parties, in accordance with its terms (except
to the extent that enforceability may be limited by
(i) applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or similar laws from time
to time in effect affecting generally the enforcement of
creditors’ rights and remedies and (ii) general
principles of equity, whether in a proceeding at law or in
equity) and prior to the date hereof the Company or any of its
Subsidiaries has not received any written notice to terminate,
in whole or material part, any of the same. None of the Company,
any of its Subsidiaries or, to the knowledge of the Company, any
other party thereto is in default or breach in any material
respect under the material terms of any such Material Contract,
and, to the knowledge of the Company, no event or circumstance
has occurred that, with notice or lapse of time or both, is
reasonably likely to constitute any event of default thereunder
that would be reasonably expected to result in the termination
of such Material Contract. True and complete copies of each
Material Contract (including all modifications and amendments
thereto) in effect as of the date hereof have been made
available to Parent prior to the date hereof.
Section 4.22. Properties.
(a) “Company Leased Tangible Property”
means all items of machinery, equipment, vehicles, and other
tangible personal property leased or subleased by the Company or
any of its Subsidiaries. Section 4.22(a) of
the Company Disclosure Schedule sets forth a list that is
accurate and complete in all material respects of the leases and
subleases to which the Company or any of its Subsidiaries is a
party or is bound, of or relating to Company Leased Tangible
Property (other than agreements solely between or among the
Company and its wholly-owned Subsidiaries and not containing any
rights of or obligations to any Third Party).
(b) “Company Leased Real Property” means
all real property and other interests in land, including coal,
mining, exploration and surface rights, easements, rights of
way, options, surface estates, coal and other mineral estates
leased or subleased by the Company or any of its Subsidiaries.
Section 4.22(b) of the Company Disclosure Schedule sets
forth a list that is accurate and complete in all material
respects of the leases and subleases to which the Company or any
of its Subsidiaries is a party or is bound, of or relating to
Company Leased Real Property (other than agreements solely
between or among the Company and its wholly-owned Subsidiaries
and not containing any rights of or obligations to any Third
Party).
(c) The Company has delivered or made available to Parent
prior to the date hereof copies (which copies are true and
complete in all material respects) of the leases and subleases
set forth on Section 4.22(a) of the Company Disclosure
Schedule and Section 4.22(b) of the Company Disclosure
Schedule (in each case as amended to the date of this
Agreement). With respect to each such lease or sublease of
Company Leased Tangible Property and Company Leased Real
Property, except where the failure of any of the following to be
true and correct would not, individually or in the aggregate,
reasonably be expected to have a Company Material Adverse Effect:
(i) such lease or sublease is in full force and effect in
all respects and enforceable in accordance with its terms,
except as such enforceability may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting
creditors’ rights generally and general equitable
principles whether in a proceeding at law or in equity;
(ii) (A) neither the Company nor any of its
Subsidiaries is in default under any such lease or sublease and,
no event has occurred which, with the passage of time or
expiration of any grace period would constitute a default of the
Company’s or its Subsidiaries’ obligations under such
lease or sublease, (B) to the knowledge of the Company no
other party to any such lease or sublease is in default
thereunder and (C) neither the Company nor any of its
Subsidiaries has received a written or other notice of default
with respect to such lease or sublease;
(iii) no such lease or sublease has been mortgaged, deeded
in trust or subjected to a Lien (other than Permitted Liens) by
the Company or any of its Subsidiaries;
(iv) with regard to the Company Leased Real Property, the
Company or one of its Subsidiaries has adequate rights of
ingress and egress to such Company Leased Property and all
buildings, structures, facilities, fixtures and other
improvements thereon;
(v) with regard to the Company Leased Real Property,
neither the Company nor any of its Subsidiaries owes any
brokerage or other commissions with respect to any such lease or
sublease for which adequate reserves have not been established
on the Company Balance Sheet;
(vi) neither the Company nor any of its Subsidiaries has
received written notice of or has knowledge of a claim or
dispute under any lease or sublease regarding any of the Company
Leased Real Property or the Company Leased Personal
Property; and
(vii) other than Permitted Liens, there are no other
matters that, to the knowledge of the Company, would adversely
affect the rights of the Company or any of its Subsidiaries to
the Company Leased Real Property or the Company Leased Tangible
Property.
(d) “Company Owned Real Property” means
all real property, and other interests in land, including coal,
mining, exploration and surface rights, easements, rights of
way, options, surface estates and other mineral estates owned by
the Company or any of its Subsidiaries. Section 4.22(d) of
the Company Disclosure Schedule sets forth a list of the Company
Owned Real Property and the record title owner of the Company
Owned Real Property. Copies (which copies are true and complete
in all material respects) of all deeds, and all title insurance
policies, title insurance, abstracts and other evidence of title
(if any) in the possession of the
Company or any of its Subsidiaries relating to the Company Owned
Real Property set forth on Section 4.22(d) of the Company
Disclosure Schedule have been delivered or made available to
Parent prior to the date hereof. With respect to each such
parcel of the Company Owned Real Property, except where the
failure of any of the following to be true and correct would
not, individually or in the aggregate, reasonably be expected to
have a Company Material Adverse Effect: (i) the identified
owner has possession of, adequate rights of ingress and egress
with respect to, and good and marketable fee simple title to
each Company Owned Real Property, free and clear of any Liens,
except for Permitted Liens; (ii) there are no pending or,
to the Company’s knowledge, threatened condemnation
proceedings and no tenant or other party in possession of any of
the Company Owned Real Property has any right to purchase, or
holds any right of first refusal to purchase, any of such
properties; and (iii) other than Permitted Liens, there are
no other matters that would adversely affect the title of the
Company or any of its Subsidiaries.
(e) “Company Owned Tangible Property”
means all items of machinery, equipment, vehicles, and other
tangible personal property owned by the Company or any of its
Subsidiaries. Section 4.22(e) of the Company Disclosure
Schedule sets forth a list that is accurate and complete in all
material respects of the Company Owned Tangible Property. The
Company or one of its Subsidiaries is in possession of and,
except for such spare parts as are held on consignment, owns and
has good title to all Company Owned Tangible Property as
operated as of the date hereof. All such Company Owned Tangible
Property is free and clear of all Liens, other than Permitted
Liens.
(f) The Company has delivered or made available to Parent
prior to the date hereof copies (which copies are true and
correct in all material respects) of all of the following
relating to the Company Leased Real Property, Company Owned Real
Property, Company Leased Tangible Property, Company Owned
Tangible Property, or any of the mining complexes or reserves of
the Company or any of its Subsidiaries, in each case to the
extent material and in the possession of the Company or any of
its Subsidiaries: engineering, geological, operational, coal
measurement, feasibility and coal data and analyses, surveys,
aerial surveys, tract maps, parcel maps, plans, drawings,
drilling logs, reserve reports, permit applications, and tax
appraisals.
(g) Section 4.22(g) of the Company Disclosure Schedule
lists all of the Company’s and its Subsidiaries’ owned
or operated underground storage tanks, aboveground storage
tanks, dikes or impoundments in, on, under or about the Company
Leased Real Property or Company Owned Real Property.
(h) Except with respect to real property leased to others,
the plants, buildings, structures, mines and equipment owned or
leased by the Company or any of its Subsidiaries are in all
material respects in good operating condition and repair and
have been reasonably maintained consistent with past practice
and are adequate and suitable for the purpose for which they are
currently being used.
(i) The maps listed on Section 4.22(i) of the Company
Disclosure Schedule accurately reflect, in all material
respects, the Company Leased Real Property and the Company Owned
Real Property.
(j) The Company Leased Real Property, Company Owned Real
Property, Company Leased Tangible Property, and Company Owned
Tangible Property constitute all of the property and assets
(together with the Company Permits and the Environmental
Permits) used or held for use in connection with the businesses
of the Company and its Subsidiaries and are adequate to conduct
such businesses as currently conducted in all material respects.
(k) The Company has provided to Parent on February 29,2008 a list of each general reserve area of the Company and its
Subsidiaries, and with respect to each such area the following
information (which information, to the knowledge of the Company,
is accurate and complete in all material respects):
(i) whether such mining area is mineable by underground,
surface or both methods; (ii) the proven and probable
reserves as of January 1, 2008; (iii) a categorization
of reserves by heat value as of January 1, 2008; and
(iv) a categorization of reserves by sulfur content as of
January 1, 2008. Subject to the terms of any applicable
lease and Applicable Law, the Company has the right to extract
and sell the coal reserves referred to above and such reserves
are not subject to any mining rights of any other Person. Set
forth in Section 4.22(k) of the Company Disclosure Schedule
is a list, which list is accurate and complete in all material
respects, of each mining complex of the Company and its
Subsidiaries and the 2006 and 2007 production for each such
mining
complex. Prior to the date hereof, the Company has provided to
Parent a list of the quantity of reserves currently assigned to
each mining area of the Company and its Subsidiaries.
(l) Neither the Company nor any of its Subsidiaries has
received written notice or has knowledge of any disputes with
any adjoining landowners that would reasonably be expected to
result in, individually or in the aggregate, a Company Material
Adverse Effect.
Section 4.23. Intellectual
Property.
(a) Section 4.23(a)(i) of the Company Disclosure
Schedule contains a true and complete list of all material
registrations and applications for registration of any
Intellectual Property Right owned by the Company or any of its
Subsidiaries. Section 4.23(a)(ii) of the Company Disclosure
Schedule contains a true and complete list of all material
agreements (excluding licenses for commercial off the shelf
computer software that are generally available on
nondiscriminatory pricing terms) to which the Company or any of
its Subsidiaries is a party or otherwise bound and pursuant to
which the Company or any of its Subsidiaries (A) obtains
the right to use, or a covenant not to be sued under, any
Intellectual Property Right or (B) grants the right to use,
or a covenant not to be sued under, any Intellectual Property
Right.
(b) Except as, individually or in the aggregate, would not
reasonably be expected to be material: (i) the Company and
each of its Subsidiaries owns, or is licensed to use (in each
case, free and clear of any Liens), all Intellectual Property
Rights used in or necessary for the conduct of its business as
currently conducted; (ii) neither the Company nor its
Subsidiaries has infringed, misappropriated or otherwise
violated the Intellectual Property Rights of any Person;
(iii) to the knowledge of the Company, no Person has
challenged, infringed, misappropriated or otherwise violated any
Intellectual Property Right owned by
and/or
licensed to the Company or its Subsidiaries; (iv) neither
the Company nor any of its Subsidiaries has received any written
notice or otherwise has knowledge of any pending claim, action,
suit, order or proceeding with respect to any Intellectual
Property Right used by the Company or any of its Subsidiaries or
alleging that the any services provided, processes used or
products manufactured, used, imported, offered for sale or sold
by the Company or any of its Subsidiaries infringes,
misappropriates or otherwise violates any Intellectual Property
Rights of any Person; (v) the consummation of the
transactions contemplated by this Agreement will not alter,
encumber, impair or extinguish any Intellectual Property Right
of the Company or any of its Subsidiaries or impair the right of
Parent and its Subsidiaries to develop, use, sell, license or
dispose of, or to bring any action for the infringement of, any
Intellectual Property Right of the Company or any of its
Subsidiaries; and (vi) the Company and its Subsidiaries
have taken reasonable steps to maintain the confidentiality of
all material Trade Secrets owned, used or held for use by the
Company or any of its Subsidiaries and no such Trade Secrets
have been disclosed other than to employees, representatives and
agents of the Company or any of its Subsidiaries all of whom are
bound by written confidentiality agreements.
Section 4.24. Insurance
Coverage. Section 4.24 of the Company
Disclosure Schedule sets forth a list (which list is true and
complete in all material respects) of, and the Company has
furnished or made available to Parent prior to the date hereof
copies (which copies are true and complete in all material
respects) of, all insurance policies and bonds (other than
surety bonds) relating to the assets, business, operations,
employees, officers or directors of the Company and its
Subsidiaries. There is no claim by the Company or any of its
Subsidiaries pending under any of such policies or bonds as to
which, to the knowledge of the Company, coverage has been
questioned, denied or disputed by the underwriters of such
policies or bonds or in respect of which such underwriters have
reserved their rights. All premiums payable under all such
policies and bonds have been timely paid and the Company and its
Subsidiaries have otherwise complied in all material respects
with the terms and conditions of all such policies and bonds.
All material policies of insurance and bonds (or other policies
and bonds providing substantially similar insurance coverage)
have been in effect since January 1, 2006 and remain in
full force and effect. To the knowledge of the Company, the
underwriters of such policies and bonds have not threatened any
termination of, material premium increase with respect to, or
material alteration of coverage under, any of such policies or
bonds. The Company and its Subsidiaries shall immediately after
the Effective Time continue to have coverage under such policies
and bonds with respect to events occurring prior to the
Effective Time.
(a) “Company Permits” means all licenses,
mining leases, mining authorities, franchises, permits,
certificates, approvals or other similar authorizations issued
to the Company or any of its Subsidiaries by any Governmental
Authority, including those relating to the Identified Mining
Laws but not including any other Environmental Permits.
Section 4.25(a) of the Company Disclosure Schedule sets
forth a list that is accurate and complete in all material
respects of the Company Permits and the Environmental Permits.
(b) The Company Permits are in all material respects
sufficient permits to conduct the business of the Company and
its Subsidiaries as currently conducted. The Company Permits are
in all material respects valid and in full force and effect,
neither the Company nor any Subsidiary of the Company is in
material default under, and no condition exists that with notice
or lapse of time or both would constitute a material default
under, any of the Company Permits. Neither the Company nor any
of its Subsidiaries has received written notice that the Person
issuing or authorizing any such Permit intends to terminate or
will refuse to renew or reissue any such Permit upon its
expiration. The Company and its Subsidiaries have complied with
the terms and conditions of the Company Permits in all material
respects.
Section 4.26. Affiliate
Transactions. No Stockholder holding more than
one percent of the outstanding Company Stock (or member of a
group of Affiliated Stockholders holding in the aggregate in
excess of one percent of the outstanding Company Stock),
director or officer of the Company or any of its Subsidiaries,
and none of their respective (a) controlled Affiliates (or
in the case of the Stockholder Representative, any Affiliates of
the Stockholder Representative) or (b) to the
Company’s knowledge, Affiliates of Stockholders (other than
the Stockholder Representative) that are not controlled
Affiliates or (c) to the Company’s knowledge,
“associates” (or, with respect to any of the
foregoing, members of any of their “immediate
families”) (as such terms are respectively defined in
Rule 12b-2
and
Rule 16a-1
of the 1934 Act) (each of the foregoing Persons in this
sentence, a “Related Person”), (i) is, or
has in the past two years been, party to or involved, directly
or indirectly, in any material contract, material agreement,
material business arrangement or other material relationship
with the Company or any of its Subsidiaries (whether written or
oral) (other than (A) Stockholder, director, officer or
employment relationships, (B) the ownership of Company
Stock or (C) any purchase or sale of the Company’s
products in the Company’s ordinary course of business and
on arms’ length terms), (ii) directly or indirectly
owns, or otherwise has any right, title or interest in, to or
under, any material property or right, tangible or intangible,
that is used by the Company or any of its Subsidiaries (other
than (A) in its capacity as a stockholder of the Company or
(B) any indirect ownership interest that a Related Person
may have as a result of any investment in any Person that is not
an Affiliate of such Related Person) or (iii) is, or has in
the past two years been, engaged, directly or indirectly, in the
conduct of the business of the Company or its Subsidiaries
(other than (A) in its capacity as a stockholder or as a
director, officer or employee of the Company or any of its
Subsidiaries or (B) relating to any indirect ownership
interest that a Related Person may have as a result of any
investment in any Person that is not an Affiliate of such
Related Person).
Section 4.27. Customers
and Suppliers. Section 4.27 of the Company
Disclosure Schedule contains (i) a list of the top ten
customers of the Company and its Subsidiaries (determined on the
basis of revenues) for each of the last two fiscal years and
(ii) a list of the top ten suppliers of the Company and its
Subsidiaries (determined on the basis of cost of items
purchased) for the last fiscal year. No customer set forth on
Section 4.27 of the Company Disclosure Schedule has ceased
or materially reduced its purchases from or use of the services
of the Company and its Subsidiaries since the Company Balance
Sheet Date, or to the knowledge of the Company, has threatened
to cease or materially reduce such purchases or use after the
date hereof. No supplier set forth on Section 4.27 of the
Company Disclosure Schedule has ceased or materially reduced its
supply of materials or goods or provision of services to the
Company and its Subsidiaries since the Company Balance Sheet
Date, or to the knowledge of the Company, has threatened to
cease or materially reduce such supply or provision after the
date hereof. To the knowledge of the Company, no such customer
or supplier is currently in, or threatened with, bankruptcy or
insolvency.
Section 4.28. Absence
of Certain Business Practices. Neither the
Company nor any of its Subsidiaries, nor any of their respective
officers, directors, employees or agents, nor any Person acting
on behalf of the
Company or any of its Subsidiaries, has, directly or indirectly,
within the past two years given or agreed to give any gift or
similar benefit to any customer, supplier, governmental employee
or other Person who is or may be in a position to help or hinder
the respective business of the Company or any of its
Subsidiaries (or assist the Company or any of its Subsidiaries
in connection with any actual or proposed transaction) that
(a) might subject the Company or any of its Subsidiaries to
any material damage or material penalty assessed by any
Governmental Authority, (b) if not given in the past might
have had a material adverse effect, (c) if not continued in
the future, might have a material adverse effect or
(d) might subject the Company or any of its Subsidiaries to
suit by any Governmental Authority.
Section 4.29. Disclosure. There
is no fact or circumstance known to Company that has not been
disclosed to Parent, the existence of which would, individually
or in the aggregate with other such facts or circumstances, have
a Company Material Adverse Effect. Subject to such exceptions as
would not, individually or in the aggregate, reasonably be
expected to have a Company Material Adverse Effect, no
representation or warranty made by the Company in this Agreement
(as modified by statements contained in the Company Disclosure
Schedule) or in any certificate furnished to Parent pursuant to
any provision of this Agreement by or on behalf of the Company,
contains any untrue statement of a fact or omits to state a fact
required to be stated therein or necessary in order to make the
statements made herein or therein, in the light of the
circumstances in which they were made, not misleading;
provided that to the extent a representation or warranty
of the Company in this Agreement is qualified by the knowledge
of the Company, the representation and warranty set forth in
this sentence shall to such extent be deemed to be similarly
qualified by the knowledge of the Company.
Section 4.30. No
Company Material Adverse Effect. The
representations and warranties contained in this Article 4,
disregarding any qualification contained therein as to
materiality or Company Material Adverse Effect, are true and
correct, with such exceptions as have not had and would not
reasonably be expected to have, individually or in the
aggregate, a Company Material Adverse Effect.
Section 4.31. No
Other Representations or Warranties. Except for
the representations and warranties contained in this Agreement
or any other Transaction Document, neither the Company nor any
other Person makes any other express or implied representation
or warranty on behalf of the Company and its Subsidiaries (and
its and their business operations, financial condition, assets
and properties) and Parent shall be entitled to rely only on
such representations and warranties. The Company disclaims any
representation or warranty, whether made by the Company or any
of its Affiliates, officers, directors, employees, agents or
representatives, that is not contained in this Agreement, any
other Transaction Document or in any certificate delivered
pursuant to this Agreement or any other Transaction Document.
ARTICLE 5
Representations
and Warranties of Parent
Except as expressly disclosed, and reasonably apparent on the
face of the disclosure contained, in the Parent SEC Documents
filed before the date of this Agreement, and only as and to the
extent so disclosed and apparent (excluding any disclosures
included therein (x) under the “Risk Factors” or
similar caption, (y) to the extent that such disclosures do
not relate to historical or existing facts, events, changes,
effects, developments, conditions or occurrences, and
(z) to the extent that they are forward-looking in nature)
(provided that in no event shall any disclosure in the
Parent SEC Documents qualify or limit the representations and
warranties of Parent set forth in Sections 5.02, 5.05 and
5.07), and, subject to Section 12.04, except as set forth
in the Parent Disclosure Schedule, Parent represents and
warrants to the Company on and as of the date of this Agreement
and, solely with respect to the representations and warranties
in Sections 5.01, 5.02, 5.03, 5.04, 5.05, 5.06, 5.13, 5.14,
5.20 (such representations and warranties, the “Parent
Core Representations”) and Section 5.27, as of the
Effective Time, that:
Section 5.01. Corporate
Existence and Power. Each of Parent and Merger
Subsidiary is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Delaware and
has all corporate powers required to carry on its business as
currently conducted. In all material respects, each of
Parent and Merger Subsidiary is duly qualified to do business as
a foreign corporation and, as applicable in the relevant
jurisdiction, is in good standing in all jurisdictions where
such qualification is necessary. True and complete copies of the
certificate of incorporation and bylaws of the Parent as
currently in effect have been made available to the Company
prior to the date hereof. Since the date of its incorporation,
Merger Subsidiary has not engaged in any activities other than
in connection with or as contemplated by this Agreement.
Section 5.02. Corporate
Authorization. (a) The execution, delivery
and performance by Parent and Merger Subsidiary of this
Agreement and each other Transaction Document to which Parent or
Merger Subsidiary is or will be a party and the consummation of
the transactions contemplated hereby and thereby are within its
corporate powers, and, except for the approval of the issuance
of the shares of Parent Stock to be issued pursuant to
Article 2 (the “Parent Stock Issuance”) by
a majority of the votes cast at a meeting of stockholders of
Parent where the total vote cast with respect to such issuance
represents over fifty percent in interest of the Parent Stock
entitled to vote on such issuance (the “Parent
Stockholder Approval”), have been duly authorized by
all necessary corporate action on the part of Parent and Merger
Subsidiary and no other corporate, shareholder or other similar
proceedings on the part of Parent or Merger Subsidiary are
necessary to authorize this Agreement or any other Transaction
Document or to consummate the transactions contemplated hereby
or thereby. This Agreement and each of the other Transaction
Documents to which Parent or Merger Subsidiary is or will be a
party constitutes, or will when executed and delivered
constitute, a valid and binding agreement of Parent and Merger
Subsidiary, as applicable, enforceable against Parent and Merger
Subsidiary, as applicable, in accordance with its terms, except
to the extent that enforceability may be limited by
(i) applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or similar laws from time
to time in effect affecting generally the enforcement of
creditors’ rights and remedies and (ii) general
principles of equity, whether in a proceeding at law or in
equity.
(b) Parent’s Board of Directors has
(i) unanimously determined that this Agreement and the
other Transaction Documents to which Parent is a party, and the
transactions contemplated hereby and thereby (including the
Merger), are advisable, fair to and in the best interests of
Parent’s stockholders, (ii) unanimously approved and
adopted this Agreement and the other Transaction Documents to
which Parent is a party, and the transactions contemplated
hereby and thereby (including the Merger), and
(iii) unanimously resolved to recommend approval of the
Parent Stock Issuance by Parent’s stockholders.
Section 5.03. Governmental
Authorization. The execution, delivery and
performance by each of Parent or Merger Subsidiary of this
Agreement and each other Transaction Document to which Parent or
Merger Subsidiary is or will be a party and the consummation of
the transactions contemplated hereby and thereby require no
action by or in respect of, or filing with, any Governmental
Authority other than (i) the filing of a certificate of
merger with respect to the Merger with the Delaware Secretary of
State, (ii) compliance with any applicable requirements of
the HSR Act, (iii) compliance with any applicable
requirements of the 1933 Act, the 1934 Act and any
other U.S. state or federal securities laws and
(iv) any other immaterial actions or filings.
Section 5.04. Non-contravention. The
execution, delivery and performance by each of Parent and Merger
Subsidiary of this Agreement and each other Transaction Document
to which Parent or Merger Subsidiary is or will be a party and
the consummation of the transactions contemplated hereby and
thereby do not and will not (i) contravene, conflict with,
or result in any violation or breach of any provision of the
certificate of incorporation or bylaws (or similar
organizational documents) of Parent or any of its Subsidiaries,
(ii) assuming compliance with the matters referred to in
Section 5.03, contravene, conflict with or result in a
violation or breach of any provision of any Applicable Law,
(iii) require any consent or other action by any Person
under, constitute a default, or an event that, with or without
notice or lapse of time or both, would constitute a default,
under, or cause or permit the termination, cancellation,
acceleration or other change of any right or obligation or the
loss of any benefit to which Parent or any of its Subsidiaries
is entitled under any provision of any agreement or other
instrument binding upon the Parent or any of its Subsidiaries or
any of their respective properties or assets or any license,
franchise, permit, approval or other authorization of, or any
deposit, letter of credit, trust fund or bond posted by, Parent
or any of its Subsidiaries or (iv) result in the creation
or imposition of any Lien on any asset of the Parent or any of
its Subsidiaries, with such exceptions, in the case of
(a) clause (ii) as would not, individually or in the
aggregate, reasonably
be expected to be material or (b) clauses (iii) and
(iv), as would not, individually or in the aggregate, reasonably
be expected to have a Parent Material Adverse Effect.
Section 5.05. Capitalization. (a) The
authorized capital stock of the Parent consists of
110,000,000 shares consisting of
(i) 100,000,000 shares of Parent Stock and
(ii) 10,000,000 shares of Preferred Stock, par value
$0.01 per share (“Preferred Stock”), of which
1,000,000 shares have been designated as Series A
Junior Participating Preferred Stock, par value $0.01 per share.
As of March 31, 2008, there were outstanding
(i) 26,760,377 shares of Parent Stock (including
189,437 shares of restricted Parent Stock), (ii) no
shares of Preferred Stock, (iii) employee stock options to
purchase an aggregate of 554,673 shares of Parent Stock
(none of which were exercisable), (iv) 590,131 restricted
stock units and (v) 18,670 deferred stock units. All
outstanding shares of capital stock of Parent have been duly
authorized and validly issued and are fully paid and
nonassessable.
(b) Except as set forth in this Section 5.05 and for
changes since March 31, 2008 resulting from the exercise of
stock options or the grant of stock based compensation to
directors or employees, as of the date hereof, there are no
outstanding (i) shares of capital stock or voting
securities of Parent, (ii) securities of the Parent or any
of its Subsidiaries convertible into or exchangeable for shares
of capital stock or voting securities of Parent or
(iii) options or other rights to acquire from Parent or any
of its Subsidiaries, or other obligation of Parent or any of its
Subsidiaries to issue, any capital stock, voting securities or
securities convertible into or exchangeable for capital stock or
voting securities of the Parent (the items in clauses (i), (ii),
and (iii) being referred to collectively as the
“Parent Securities”). There are no outstanding
obligations of Parent or any of its Subsidiaries to repurchase,
redeem or otherwise acquire any of the Parent Securities.
(c) The shares of Parent Stock to be issued as Merger
Consideration have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement,
subject to receipt of the Parent Stockholder Approval, will have
been validly issued and will be fully paid and nonassessable and
the issuance thereof is not subject to any preemptive or other
similar right. The Parent Stockholder Approval is the only vote
of the holders of any class or series of Parent Securities or
any Parent Subsidiary Securities necessary to approve and adopt
this Agreement and the other Transaction Documents and approve
the Merger and the other transactions contemplated hereby and
thereby.
Section 5.06.Subsidiaries. (a) Each
Subsidiary of Parent is a corporation or other organization duly
organized, validly existing and, as applicable in the relevant
jurisdiction, in good standing under the laws of its
jurisdiction of organization, and has all corporate (or other
organizational) powers required to carry on its business as
currently conducted. In all material respects, each such
Subsidiary is duly qualified to do business as a foreign
corporation and, as applicable in the relevant jurisdiction, is
in good standing in all jurisdictions where such qualification
is necessary.
(b) As of the date hereof, all of the outstanding capital
stock of, or other voting securities or ownership interests in,
each Subsidiary of the Parent, is owned by the Parent, directly
or indirectly, free and clear of any Lien and free of any other
limitation or restriction (including any restriction on the
right to vote, sell or otherwise dispose of such capital stock
or other voting securities or ownership interests). As of the
date hereof, there are no outstanding (i) securities of the
Parent or any of its Subsidiaries convertible into or
exchangeable for shares of capital stock or other voting
securities or ownership interests in any Subsidiary of the
Parent or (ii) options or other rights to acquire from the
Parent or any of its Subsidiaries, or other obligation of the
Parent or any of its Subsidiaries to issue, any capital stock or
other voting securities or ownership interests in, or any
securities convertible into or exchangeable for any capital
stock or other voting securities or ownership interests in, any
Subsidiary of the Parent (the items in clauses (i) and
(ii) being referred to collectively as the “Parent
Subsidiary Securities”). As of the date hereof, there
are no outstanding obligations of the Parent or any of its
Subsidiaries to repurchase, redeem or otherwise acquire any of
the Parent Subsidiary Securities.
Section 5.07. SEC
Filings. (a) Parent has delivered or made
available (for purposes of this Agreement, filings that are
publicly available prior to the date hereof on the EDGAR system
of the SEC are deemed to have been made available to the
Company) to the Company (i) Amendment No. 4 to the
Form 10 Registration Statement of Parent filed on
October 11, 2007, (ii) its annual report on
Form 10-K
for the year ended
December 31, 2007, (iii) the
Form S-8
Registration Statement of Parent filed on October 30, 2007
and (iv) each report on
Form 8-K
filed by Parent from January 1, 2008 and prior to the date
hereof (the documents referred to in clauses (i), (ii),
(iii) and (iv), collectively, the “Parent SEC
Documents”).
(b) As of its filing date, each Parent SEC Document
complied as to form in all material respects with the applicable
requirements of the 1933 Act and 1934 Act.
(c) As of its filing date, each Parent SEC Document did not
contain any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements made
therein, in the light of the circumstances under which they were
made, not misleading; provided that, to the extent a
Parent SEC Document addresses a matter that is the same as a
matter addressed in a representation or warranty in
Article 4 that is qualified by the knowledge of the Company
and/or a
Company Material Adverse Effect standard, the representation and
warranty set forth in this Section 5.07(c) (and only this
Section 5.07(c)) shall to such extent be deemed to be
similarly qualified by the knowledge of Parent
and/or
Parent Material Adverse Effect, as applicable.
Section 5.08. Financial
Statements.
(a) The audited combined balance sheets of Parent and its
Subsidiaries as of December 31, 2006 and December 31,2005, and the related audited combined statements of operations,
changes to invested capital (deficit), and cash flows for each
of the years ended December 31, 2006 and December 31,2005, of Parent and its Subsidiaries fairly present, in all
material respects, the combined financial position of Parent and
its Subsidiaries as of the dates thereof and their combined
results of operations, changes to invested capital (deficit),
and cash flows for the periods then ended and have been prepared
in compliance with GAAP applied on a consistent basis (except as
may be indicated in the notes thereto) and in accordance with
the books and records of Parent and its Subsidiaries.
(b) The audited consolidated balance sheet as of
December 31, 2007 and the related audited consolidated
statements of operations, changes in stockholders’ equity
(deficit), and cash flows for the year then ended of Parent and
its Subsidiaries fairly present, in all material respects, the
consolidated financial position of Parent and its Subsidiaries
as of the date thereof and their consolidated results of
operations, changes in stockholders’ equity (deficit), and
cash flows for the year then ended and have been prepared in
compliance with GAAP applied on a consistent basis (except as
may be indicated in the notes thereto) and in accordance with
the books and records of Parent and its Subsidiaries.
Section 5.09. Absence
of Certain Changes. From the Parent Balance Sheet
Date to the date hereof, the business of the Parent and its
Subsidiaries has been conducted in the ordinary course
consistent with past practices, and since the Parent Balance
Sheet Date:
(a) there has not been any event, occurrence, development
or state of circumstances or facts which, individually or in the
aggregate, has had or would reasonably be expected to have a
Parent Material Adverse Effect; and
(b) neither Parent nor any of its Subsidiaries has taken
any action that would have been prohibited by
Section 7.01(a) or Section 7.01(b) if this Agreement
had been in effect at the time thereof.
Section 5.10. No
Undisclosed Material Liabilities. There are no
liabilities or obligations of the Parent or any of its
Subsidiaries of any kind whatsoever, whether accrued,
contingent, absolute, determined, determinable or otherwise, and
to the knowledge of Parent, there is no existing condition,
situation or set of circumstances (other than as a result of
conducting operations in the coal industry generally, except to
the extent disproportionately impacting Parent or its
Subsidiaries as compared to other entities operating in the coal
industry) that would reasonably be expected to result in such a
liability or obligation, other than:
(a) liabilities or obligations to the extent disclosed,
reflected or reserved against in the Parent Balance Sheet or the
notes thereto;
(b) liabilities or obligations incurred in the ordinary
course of business since the Parent Balance Sheet Date
consistent with past practices;
(c) liabilities that would not reasonably be expected to
have, individually or in the aggregate, a Parent Material
Adverse Effect;
(d) liabilities incurred as a result of the performance of
Parent’s obligations under this Agreement; and
(e) liabilities or obligations arising pursuant to the
terms (and not as a result of breach or default by Parent or any
of its Subsidiaries) of contracts or agreements of Parent or any
of its Subsidiaries.
Section 5.11. Compliance
with Laws; Mining Compliance Matters.
(a) Parent and each of its Subsidiaries is, and (except as
would not reasonably be expected to result in a current or
future liability on or adverse consequence to Parent or any of
its Subsidiaries) has been, in all material respects, in
compliance with, all Applicable Law, including the Identified
Mining Laws but not including any other Environmental Laws, and
to the knowledge of Parent is not under investigation with
respect to and has not been threatened to be charged with or
given written notice from any Governmental Authority, and Parent
does not otherwise have knowledge of, any material violation of
any Applicable Law, including the Identified Mining Laws but not
including any other Environmental Laws. Neither Parent nor any
of its Subsidiaries is subject to any material order, writ,
judgment, award, injunction or decree of any arbitrator or
Governmental Authority that Parent or any of its Subsidiaries
has received in writing or otherwise has knowledge of.
(b) Neither Parent nor any of its Subsidiaries has received
any written communication from the applicable permitting
authority with respect to any material applications for permits
to be issued by mining authorities to Parent or any of its
Subsidiaries as of the date hereof (the “Parent Material
Mining Applications”) that (i) indicates that such
Parent Material Mining Application has been denied or
(ii) requests Parent or any of its Subsidiaries to provide
additional information with respect to such Parent Material
Mining Application.
(c) Parent and its Subsidiaries have posted all material
deposits, letters of credit, trust funds, bid bonds, performance
bonds, reclamation bonds and surety bonds (and all such similar
undertakings) required to be posted in connection with their
operations (the deposits, letters of credit, trust funds, bid
bonds, performance bonds, reclamation bonds and surety bonds
(and all such similar undertakings) posted in connection with
the operations of Parent and its Subsidiaries, collectively, the
“Parent Surety Bonds”). The Parent Surety Bonds
are sufficient to conduct the business of the Parent and its
Subsidiaries as currently conducted. Parent and its Subsidiaries
are and have been in compliance in all material respects with
the Parent Surety Bonds, and the operation of Parent’s and
its Subsidiaries’ coal mining and processing operations and
the state of reclamation with respect to the Parent Surety Bonds
are “current” or in “deferred status”
regarding reclamation obligations and otherwise are and have
been in compliance with all applicable mining, reclamation and
other analogous Applicable Laws, except where noncompliance
would not (i) interfere in any material respect with the
ability of Parent and its Subsidiaries to continue to operate
their assets and conduct their business as currently conducted
or otherwise be material or (ii) materially adversely
affect or delay the consummation of the transactions
contemplated by this Agreement.
(d) Neither Parent nor any of its Subsidiaries (nor any
Person “owned or controlled” by any of them) has
received written notice from the Federal Office of Surface
Mining or the agency of any state administering the Surface
Mining Control and Reclamation Act of 1977 (or any comparable
state statute) or otherwise has knowledge that it is
(i) ineligible to receive additional surface mining permits
or other licenses or authorizations or (ii) under
investigation to determine whether its eligibility to receive
such permits or other licenses or authorizations should be
revoked, i.e., “permit blocked.” As used in
this Section 5.11(d) “owned or controlled” shall
be defined as set forth in 30 C.F.R. Section 773.5
(2000).
Section 5.12. Litigation. There
is no action, suit, investigation or proceeding pending against,
or, to the knowledge of Parent, threatened against or affecting,
Parent, any of its Subsidiaries, any present or former officer,
director or employee of Parent or any of its Subsidiaries or any
Person for whom Parent or any Subsidiary may be liable or any of
their respective properties before any court or arbitrator or
before or by any Governmental Authority, (i) that if
determined adversely to Parent or any of its Subsidiaries, would
reasonably
be expected to be, individually or in the aggregate, material or
(ii) that in any manner challenges or seeks to prevent,
enjoin, alter or materially delay the Merger or any of the other
transactions contemplated hereby.
Section 5.13. Investment
Banker and Finders’ Fees. There is no
investment banker, broker, finder or other intermediary that has
been retained by or is authorized to act on behalf of Parent who
might be entitled to any fee or commission from any Person other
than Parent or any of its Affiliates in connection with the
transactions contemplated by this Agreement.
Section 5.14. Opinion
of Financial Advisor. Parent has received the
opinion of Lehman Brothers, financial advisor to Parent, to the
effect that, as of the date of such opinion and subject to the
procedures followed and the qualifications and limitations set
forth therein, from a financial point of view, the Merger
Consideration to be paid by Parent in the Merger is fair to
Parent. Parent, solely for informational purposes, will after
receipt of such opinion and concurrently with the execution and
delivery of this Agreement, furnish the Company’s outside
legal counsel with a correct and complete copy of such opinion.
Parent has received the opinion of Duff & Phelps, LLC,
financial advisor to Parent, to the effect that, as of the date
of such opinion, the Merger Consideration is fair to Parent from
a financial point of view. Parent, solely for informational
purposes, will after receipt of such opinion and concurrently
with the execution and delivery of this Agreement, furnish the
Company’s outside legal counsel with a correct and complete
copy of such opinion.
Section 5.15. Taxes. (a) All
material Tax Returns required by Applicable Law to be filed with
any Taxing Authority by, or on behalf of, Parent or any of its
Subsidiaries have been filed when due in accordance with all
Applicable Law, and all such material Tax Returns were at the
time of filing, true and complete in all material respects.
(b) Parent and each of its Subsidiaries has paid (or has
had paid on its behalf) or has withheld and remitted to the
appropriate Taxing Authority all Taxes due and payable, or,
where payment is not yet due or being contested in good faith,
has established (or has had established on its behalf and for
its sole benefit and recourse) in accordance with GAAP an
adequate accrual for all Taxes through the end of the last
period for which Parent and its Subsidiaries ordinarily record
items on their respective books.
(c) Any income and franchise Tax Returns of Parent or its
Subsidiaries filed or required to be filed with respect to the
Tax years ended on or before December 31, 2003 have been
examined and closed or are Tax Returns with respect to which the
applicable period for assessment under Applicable Law, after
giving effect to extensions or waivers, has expired.
(d) There is no claim, audit, action, suit, proceeding or
investigation now pending or, to Parent’s knowledge,
threatened against or with respect to Parent or its Subsidiaries
in respect of any Tax or Tax asset.
(e) (i) No amount of the type described in
clause (ii) or (iii) of the definition of
“Tax” is currently payable by either Parent or any of
its Subsidiaries, regardless of whether such Tax is imposed on
Parent or any of its Subsidiaries or will become payable as a
consequence of consummating the Merger and the other
transactions contemplated by this Agreement; and
(ii) neither Parent nor any of its Subsidiaries has entered
into any agreement or arrangement with any Taxing Authority with
regard to the Tax liability of Parent or any of its Subsidiaries
affecting any Tax period for which the applicable statute of
limitations, after giving effect to extensions or waivers, has
not expired.
(f) Prior to the date hereof, Parent has provided the
Company with copies of or access to (i) all Tax Returns of
Parent or any of its Subsidiaries that were filed or became due
on or after January 1, 2005, and (ii) all material
agreements relating to Taxes of Parent or any of its
Subsidiaries, including any Tax Sharing Agreements, effective
during that period.
Section 5.16. Tax
Treatment. Neither Parent nor any of its
Affiliates has taken or agreed to take any action or is aware of
any fact or circumstance that would prevent the Merger from
qualifying as a 368 Reorganization. None of this Agreement or
the other Transaction Documents, or the consummation of the
transactions contemplated hereby or thereby (including the
Merger) will fail to be in compliance with, and none of the
foregoing will violate any of the terms and conditions, or other
provisions, of the Tax Separation
Agreement (the “TSA”), dated as of
October 22, 2007, by and between Parent and Peabody Energy
Corporation and will not give rise to any indemnity obligation
on the part of Parent or the Surviving Corporation under
Section 4.3 of the TSA.
Section 5.17. Employee
Benefit Plans.
(a) No Parent Employee Plan is subject to Title IV of
ERISA (other than a Multiemployer Plan).
(b) With respect to any Multiemployer Plan to which Parent,
its Subsidiaries or any of their ERISA Affiliates has any
liability or contributes (or has at any time contributed or had
an obligation to contribute): (i) none of Parent, its
Subsidiaries or any of their ERISA Affiliates has incurred any
withdrawal liability under Title IV of ERISA that remains
unsatisfied or would be subject to such liability if, as of the
Closing Date, Parent, its Subsidiaries or any of their ERISA
Affiliates were to engage in a complete withdrawal (as defined
in Section 4203 of ERISA) or partial withdrawal (as defined
in Section 4205 of ERISA) from any such multiemployer plan;
and (ii) to the knowledge of Parent, no such multiemployer
plan is in reorganization or insolvent (as those terms are
defined in Sections 4241 and 4245 of ERISA, respectively).
(c) Each Parent Employee Plan which is intended to be
qualified under Section 401(a) of the Code has received a
favorable determination letter, or has pending or has time
remaining in which to file under the applicable remedial
amendment period, an application for such determination from the
Internal Revenue Service, and Parent is not aware of any reason
why any such determination letter would not be issued. Each
Parent Employee Plan has been maintained in material compliance
with its terms and with the requirements prescribed by any and
all statutes, orders, rules and regulations, including ERISA and
the Code, which are applicable to such Parent Employee Plan. No
material events have occurred with respect to any Parent
Employee Plan that would result in payment or assessment by or
against Parent of any material excise taxes under
Sections 4972, 4975, 4976, 4977, 4979, 4980B, 4980D, 4980E
or 5000 of the Code.
(d) All contributions and payments accrued under each
Parent Employee Plan, determined in accordance with prior
funding and accrual practices, as adjusted to include
proportional accruals for the period ending as of the date
hereof, have been discharged and paid on or prior to the date
hereof except to the extent set forth in the Parent Balance
Sheet.
(e) There is no action, suit, investigation, audit or
proceeding pending against or involving or, to the knowledge of
Parent, threatened against or involving, any Parent Employee
Plan before any Governmental Authority.
(f) The consummation of the transactions contemplated by
this Agreement will not (either alone or together with any other
event) entitle any employee or independent contractor of Parent
or any of its Subsidiaries to severance pay or accelerate the
time of payment or vesting (except as otherwise may be required
under Section 411(d)(3) of the Code) or trigger any payment
of funding (through a grantor trust or otherwise) of
compensation or benefits under, increase the amount payable or
trigger any other material obligation pursuant to, any Parent
Employee Plan. There is no contract, plan or arrangement
(written or otherwise) covering any current or former director,
officer, employee or independent contractor of Parent or any of
its Subsidiaries that, individually or collectively, would
entitle any such individual to any severance or other payment
solely as a result of the transactions contemplated hereby, or
would give rise to the payment of any amount that would not be
deductible pursuant to the terms of Section 280G or 162(m)
of the Code.
Section 5.18. Labor
Matters. Parent and its Subsidiaries are not
engaged in any material respect in any unfair labor practice
which would reasonably be expected to be, individually or in the
aggregate, material. There is no unfair labor practice charge or
material grievance arising out of a collective bargaining
agreement, other current labor agreement with any labor union or
organization, or other material grievance proceeding against
Parent or any of its Subsidiaries pending, or, to the knowledge
of Parent, threatened. Since two years prior to the date of this
Agreement there has been no unfair labor practice charge or
complaint filed against Parent or any of its Subsidiaries, or to
the knowledge of Parent, pending or threatened, before
(A) the National Labor Relations Board or any similar state
agency, or (B) the Equal Employment Opportunity Commission
or any similar state agency responsible for the prevention of
unlawful employment practices. There is no strike or lockout or
material slowdown, work stoppage or other labor dispute pending,
or to the knowledge of Parent,
threatened against, involving or otherwise materially affecting
Parent or any of its Subsidiaries. Since two years prior to the
date of this Agreement, any and all reductions of workforce have
been carried out in all material respects in accordance with all
Applicable Law.
Section 5.19. Environmental
Matters. Except as does not and would not
reasonably be expected to have, individually or in the
aggregate, a Parent Material Adverse Effect:
(a) Parent and its Subsidiaries are and have been in
compliance with all Environmental Laws and all Environmental
Permits; such Environmental Permits are valid and in full force
and effect and will not be terminated or impaired or become
terminable, in whole or in part, as a result of this Agreement
and the other Transaction Documents or the consummation of the
transactions contemplated herein or therein.
(b) None of Parent nor any of its Subsidiaries has received
any Environmental Claim or written notice of any threatened
Environmental Claim, or has any knowledge of any threat of such
an Environmental Claim, regarding or resulting from the
activities or business of Parent or any of its Subsidiaries, or
any property or assets currently or formerly owned, operated or
used by Parent or any of its Subsidiaries, in each case that
(i) has been outstanding for more than 30 days,
(ii) would reasonably be expected to result in (A) an
action by a Governmental Authority, (B) a determination
that there is a pattern of violations or (C) the closure of
any operations of Parent or any of its Subsidiaries or
(iii) results in or would reasonably be expected to result
in liability to Parent or any of its Subsidiaries.
(c) None of Parent nor any of its Subsidiaries has entered
into, has agreed to, has been issued or, to the knowledge of
Parent is otherwise subject to, any material order, writ,
judgment, award, injunction or decree of any arbitrator or
Governmental Authority under any Environmental Law regarding
Parent or any of its Subsidiaries or any property or assets
currently or formerly owned, operated or used by Parent or any
of its Subsidiaries, in any such case that would interfere with
the respective ability of Parent or any of its Subsidiaries to
continue to operate their respective assets and conduct their
respective businesses as currently conducted or would result in
liability to Parent or any of its Subsidiaries.
(d) None of Parent nor any of its Subsidiaries has Released
any Hazardous Materials in violation of Environmental Law or in
a manner that would reasonably be expected to result in
liability under Environmental Laws or Environmental Permits,
and, to the knowledge of Parent, no other Person has Released
any Hazardous Materials, and Hazardous Materials are not
otherwise present, at any property currently or formerly owned
or operated by Parent or any of its Subsidiaries in violation of
any Environmental Law or Environmental Permits or in a manner
that would reasonably be expected to result in liability to
Parent or any of its Subsidiaries.
(e) No property currently owned or operated by Parent or
any of its Subsidiaries (i) is listed or, to the knowledge
of the Parent or any of its Subsidiaries, proposed for listing
on the CERCLA National Priorities List or CERCLIS list or any
similar Governmental Authority’s list of sites at which
remedial action is or may be necessary or (ii) contains
asbestos or asbestos-containing materials, in either case in a
condition constituting a violation of Environmental Law or as
would reasonably be expected to result in liability to Parent or
any of its Subsidiaries.
(f) None of Parent nor any of its Subsidiaries has disposed
of, transported or arranged for the disposal or transportation
of, any Hazardous Materials in a manner or to a location that
would reasonably be expected to result in liability to Parent or
any of its Subsidiaries under Environmental Law.
(g) Neither Parent nor any Subsidiary of Parent is in
default under, and no condition exists that with notice or lapse
of time or both would constitute a default under, any of the
Environmental Permits. Neither Parent nor any of its
Subsidiaries has received written notice that the Person issuing
or authorizing any such Environmental Permit intends to
terminate or will refuse to renew or reissue any such
Environmental Permit upon its expiration.
(h) Each of the material applications for Environmental
Permits in the name of Parent or any of its Subsidiaries has
been made in accordance with Applicable Laws. Parent or one of
its Subsidiaries will, on any grant of any of such applications,
hold legal or beneficial title to the interest in each such
application. Neither Parent nor any of its Subsidiaries has
received any written communication from any Governmental
Authority that indicates that any of such applications for
Environmental Permits will not be timely granted or will be
subject to any material restrictions, limitations or unusual
requirements.
(a) Parent has taken all action necessary to exempt the
Merger, this Agreement and the transactions contemplated hereby
from Section 203 of Delaware Law, and, accordingly, neither
such Section nor any other antitakeover or similar statute or
regulation applies or purports to apply to any such
transactions. No other “control share acquisition,”“fair price,”“moratorium” or other
antitakeover laws enacted under U.S. state or federal laws
apply to this Agreement or any of the transactions contemplated
hereby.
(b) By amendment in the form attached as
Exhibit 5.20(b), Parent has taken all action necessary to
render the rights issued pursuant to the terms of the Rights
Agreement (the “Rights Agreement”) dated as of
October 22, 2007 by and between Parent and American Stock
Transfer & Trust Company, as rights agent,
inapplicable to this Agreement and the transactions contemplated
hereby, including the Merger and the Parent Stock Issuance.
Section 5.21. Material
Contracts; Affiliate Transactions. Neither Parent
nor any of its Subsidiaries is a party to or bound by any
contract, arrangement, commitment or understanding as of the
date hereof that is a “material contract” (as such
term is defined in Item 601(b)(10) of
Regulation S-K
of the 1933 Act) or other instrument that is required to
filed as an exhibit to the Parent SEC Documents pursuant to
Item 601(b)(2), (4) or (9) of
Regulation S-K
of the 1933 Act, that, in any such case, has not been filed
or incorporated by reference in the Parent SEC Documents (each,
a “Parent Material Contract”). Each Parent
Material Contract is, to Parent’s knowledge, a valid and
binding agreement of the parties thereto (other than Parent and
its Subsidiaries), and, to Parent’s knowledge, is in full
force and effect and in all material respects enforceable
against such other parties, in accordance with its terms (except
to the extent that enforceability may be limited by
(i) applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or similar laws from time
to time in effect affecting generally the enforcement of
creditors’ rights and remedies and (ii) general
principles of equity, whether in a proceeding at law or in
equity) and prior to the date hereof neither Parent nor any of
its Subsidiaries has received any written notice to terminate,
in whole or material part, any of the same. None of Parent, any
of its Subsidiaries or, to the knowledge of Parent, any other
party thereto is in default or breach in any material respect
under the material terms of any such Parent Material Contract,
and, to the knowledge of Parent, no event or circumstance has
occurred that, with notice or lapse of time or both, is
reasonably likely to constitute any event of default thereunder
that would be reasonably expected to result in the termination
of such Parent Material Contract. True and complete copies of
each Parent Material Contract (including all modifications and
amendments thereto) have been made available to the Company
prior to the date hereof. Parent has no knowledge that any
current officer, director or Affiliate of Parent is a party to
any material agreement, contract, commitment or transaction with
Parent or its Subsidiaries or has any material interest in any
material property used by Parent or its Subsidiaries that would
be required to be disclosed in a Parent SEC Document under
Item 404 of
Regulation S-K
under the 1933 Act that has not been so disclosed.
Section 5.22. Properties.
(a) “Parent Leased Tangible Property”
means all items of machinery, equipment, vehicles, and other
tangible personal property leased or subleased by Parent or any
of its Subsidiaries.
(b) “Parent Leased Real Property” means
all real property and other interests in land, including coal,
mining, exploration and surface rights, easements, rights of
way, options, surface estates, coal and other mineral estates
leased or subleased by Parent or any of its Subsidiaries.
(c) With respect to each lease or sublease of Parent Leased
Tangible Property and Parent Leased Real Property, except where
the failure of any of the following to be true and correct would
not, individually or in the aggregate, reasonably be expected to
have a Parent Material Adverse Effect:
(i) such lease or sublease is in full force and effect in
all respects and enforceable in accordance with its terms,
except as such enforceability may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting
creditors’ rights generally and general equitable
principles whether in a proceeding at law or in equity;
(ii) (A) neither Parent nor any of its Subsidiaries is
in default under any such lease or sublease and, no event has
occurred which, with the passage of time or expiration of any
grace period would constitute a default of Parent’s or its
Subsidiaries’ obligations under such lease or sublease,
(B) to the knowledge of Parent no other party to any such
lease or sublease is in default thereunder and (C) neither
Parent nor any of its Subsidiaries has received a written or
other notice of default with respect to such lease or sublease;
(iii) no such lease or sublease has been mortgaged, deeded
in trust or subjected to a Lien (other than Permitted Liens) by
Parent or any of its Subsidiaries;
(iv) with regard to Parent Leased Real Property, Parent or
one of its Subsidiaries has adequate rights of ingress and
egress to such Parent Leased Property and all buildings,
structures, facilities, fixtures and other improvements thereon;
(v) with regard to Parent Leased Real Property neither
Parent nor any of its Subsidiaries owes any brokerage or other
commissions with respect to any such lease or sublease for which
adequate reserves have not been established on the Parent
Balance Sheet;
(vi) neither Parent nor any of its Subsidiaries has
received written notice of or has knowledge of a claim or
dispute under any lease or sublease regarding any of Parent
Leased Real Property or Parent Leased Personal Property; and
(vii) other than Permitted Liens, there are no other
matters that, to the knowledge of Parent, would adversely affect
the rights of Parent or any of its Subsidiaries to Parent Leased
Real Property or Parent Leased Tangible Property.
(d) “Parent Owned Real Property” means all
real property, and other interests in land, including coal,
mining, exploration and surface rights, easements, rights of
way, options, surface estates and other mineral estates owned by
Parent or any of its Subsidiaries. With respect to each such
parcel of Parent Owned Real Property, except where the failure
of any of the following to be true and correct would not,
individually or in the aggregate, reasonably be expected to have
a Parent Material Adverse Effect: (i) the owner has
possession of, adequate rights of ingress and egress with
respect to, and good and marketable fee simple title to each
Parent Owned Real Property, free and clear of any Liens, except
for Permitted Liens; (ii) there are no pending or, to
Parent’s knowledge, threatened condemnation proceedings and
no tenant or other party in possession of any of the Parent
Owned Real Property has any right to purchase, or holds any
right of first refusal to purchase, any of such properties; and
(iii) other than Permitted Liens, there are no other
matters that would adversely affect the title of Parent or any
of its Subsidiaries.
(e) “Parent Owned Tangible Property” means
all items of machinery, equipment, vehicles, and other tangible
personal property owned by Parent or any of its Subsidiaries.
Parent or one of its Subsidiaries is in possession of, and
except for such spare parts as are held on consignment, owns and
has good title to all Parent Owned Tangible Property as operated
as of the date hereof. All such Parent Owned Tangible Property
is free and clear of all Liens, other than Permitted Liens.
(f) Except with respect to real property leased to others,
the plants, buildings, structures, mines and equipment owned or
leased by Parent or any of its Subsidiaries are in all material
respects in good operating condition and repair and have been
reasonably maintained consistent with past practice and are
adequate and suitable for the purpose for which they are
currently being used.
(g) The Parent Leased Real Property, Parent Owned Real
Property, Parent Leased Tangible Property, and Parent Owned
Tangible Property constitute all of the property and assets
(together with the Parent Permits and the Environmental Permits)
used or held for use in connection with the businesses of Parent
and its Subsidiaries and are adequate to conduct such businesses
as currently conducted in all material respects.
(h) Neither Parent nor any of its Subsidiaries has received
written notice or has knowledge of any disputes with any
adjoining landowners that would reasonably be expected to result
in, individually or in the aggregate, a Parent Material Adverse
Effect.
Section 5.23. Intellectual
Property. Except as, individually or in the
aggregate, would not reasonably be expected to be material:
(i) Parent and each of its Subsidiaries owns, or is
licensed to use (in each case, free and clear of any Liens), all
Intellectual Property Rights used in or necessary for the
conduct of its business as currently conducted;
(ii) neither Parent nor its Subsidiaries has infringed,
misappropriated or otherwise violated the Intellectual Property
Rights of any Person; (iii) to the knowledge of Parent, no
Person has challenged, infringed, misappropriated or otherwise
violated any Intellectual Property Right owned by
and/or
licensed to Parent or its Subsidiaries; (iv) neither Parent
nor any of its Subsidiaries has received any written notice or
otherwise has knowledge of any pending claim, action, suit,
order or proceeding with respect to any Intellectual Property
Right used by Parent or any of its Subsidiaries or alleging that
the any services provided, processes used or products
manufactured, used, imported, offered for sale or sold by Parent
or any of its Subsidiaries infringes, misappropriates or
otherwise violates any Intellectual Property Rights of any
Person; (v) the consummation of the transactions
contemplated by this Agreement will not alter, encumber, impair
or extinguish any Intellectual Property Right of Parent or any
of its Subsidiaries; and (vi) Parent and its Subsidiaries
have taken reasonable steps to maintain the confidentiality of
all material Trade Secrets owned, used or held for use by Parent
or any of its Subsidiaries and no such Trade Secrets have been
disclosed other than to employees, representatives and agents of
Parent or any of its Subsidiaries all of whom are bound by
written confidentiality agreements.
Section 5.24. Licenses
and Permits.“Parent Permits”
means all licenses, mining leases, mining authorities,
franchises, permits, certificates, approvals or other similar
authorizations issued to Parent and its Subsidiaries by any
Governmental Authority, including those relating to the
Identified Mining Laws but not including any other Environmental
Permits. The Parent Permits are in all material respects
sufficient permits to conduct the business of Parent and its
Subsidiaries as currently conducted. The Parent Permits are in
all material respects valid and in full force and effect,
neither Parent nor any Subsidiary of Parent is in material
default under, and no condition exists that with notice or lapse
of time or both would constitute a material default under, any
of the Parent Permits. Neither Parent nor any of its
Subsidiaries has received written notice that the Person issuing
or authorizing any such Permit intends to terminate or will
refuse to renew or reissue any such Permit upon its expiration.
Parent and its Subsidiaries have complied with the terms and
conditions of the Parent Permits in all material respects.
Section 5.25. Absence
of Certain Business Practices. Neither Parent nor
any of its Subsidiaries, nor any of their respective officers,
directors, employees or agents, nor any Person acting on behalf
of Parent or any of its Subsidiaries, has, directly or
indirectly, within the past two years given or agreed to give
any gift or similar benefit to any customer, supplier,
governmental employee or other Person who is or may be in a
position to help or hinder the respective business of Parent or
any of its Subsidiaries (or assist Parent or any of its
Subsidiaries in connection with any actual or proposed
transaction) that (a) might subject Parent or any of its
Subsidiaries to any material damage or material penalty assessed
by any Governmental Authority, (b) if not given in the past
might have had a material adverse effect, (c) if not
continued in the future, might have a material adverse effect or
(d) might subject Parent or any of its Subsidiaries to suit
by any Governmental Authority.
Section 5.26. Financing. Parent
has provided the Company with a true and complete copy of an
executed commitment letter, including the attachments thereto
(such commitment letter, with all such attachments and the fee
letter related thereto entered into concurrently therewith, the
“Parent Financing Commitment Letter”) from the
ArcLight Funds confirming such parties’ commitment to
provide Parent with financing of up to $150,000,000 to be used
by Parent for the purposes set forth in the Parent Financing
Commitment Letter (the “Parent Financing”). The
commitments and obligations to consummate the Parent Financing
set forth in the Parent Financing Commitment Letter are subject
to no conditions or other contingencies other than those set
forth in the Parent Financing Commitment Letter. Assuming the
Parent Financing Commitment Letter is a legal, valid and binding
obligation of the ArcLight Funds, the Parent Financing
Commitment Letter is in full force and effect and is the legal,
valid and binding obligation of Parent. To the knowledge of
Parent, the Parent Financing Commitment Letter is the legal,
valid and binding obligation of the other parties thereto. As of
the date hereof, the Parent Financing Commitment Letter has not
been amended or modified in any respect. No event has occurred
which, with or without notice, lapse of time or both, would
constitute a default or material breach on the part of Parent
under any term or condition of the Parent Financing Commitment
Letter, and to the knowledge of Parent, no facts or
circumstances exist as of the date hereof that would reasonably
be expected to result in Parent being unable to satisfy on a
timely basis any term or condition of closing to be satisfied by
it pursuant to the Parent Financing Commitment Letter. As of the
date hereof, Parent has paid in full all commitment or other
fees required by the Parent Financing Commitment Letter to be
paid by it as of the date hereof. The Parent Financing, if
funded in accordance with the Parent Financing Commitment
Letter, will not be in contravention of the terms and conditions
of the Credit Agreement dated as of October 31, 2007, as
amended, among Parent, as borrower, each lender from time to
time party thereto, and Bank of America, N.A., as Administrative
Agent, Swing Line Lender and L/C Issuer (the “Parent
Credit Agreement”).
Section 5.27. No
Parent Material Adverse Effect. The
representations and warranties contained in this Article 5,
disregarding any qualification contained therein as to
materiality or Parent Material Adverse Effect, are true and
correct, with such exceptions as have not had and would not
reasonably be expected to have, individually or in the
aggregate, a Parent Material Adverse Effect.
Section 5.28. No
Other Representations and Warranties. Except for
the representations and warranties contained in this Agreement
or any other Transaction Document, neither Parent nor any other
Person makes any other express or implied representation or
warranty on behalf of Parent and its Subsidiaries (and its and
their business operations, financial condition, assets and
properties) and the Company shall be entitled to rely only on
such representations and warranties. Parent disclaims any
representation or warranty, whether made by Parent or any of its
Affiliates, officers, directors, employees, agents or
representatives, that is not contained in this Agreement, any
other Transaction Document or in any certificate delivered
pursuant to this Agreement or any other Transaction Document.
Section 6.01. Conduct
of the Company. From the date hereof until the
Effective Time or the earlier termination of this Agreement in
accordance with the terms of Article 10, the Company shall,
and shall cause each of its Subsidiaries to, conduct its
business in the ordinary course consistent with past practice
and in compliance with Applicable Law and use all commercially
reasonable efforts to (i) preserve intact its present
business organization, (ii) maintain in effect all of its
material foreign, federal, state and local licenses, permits,
consents, franchises, approvals and authorizations,
(iii) maintain satisfactory relationships with its
significant customers, lenders, suppliers and others having
significant business relationships with it and (iv) subject
to Section 6.01(d) and to the availability of necessary
capital, continue to make capital expenditures with respect to
the projects set forth on Section 6.01(iv) of the Company
Disclosure Schedule. Without limiting the generality of the
foregoing, except as expressly contemplated by this Agreement or
as set forth in the applicable subsection of Section 6.01
of the Company Disclosure Schedule, the Company shall not, nor
shall it permit any of its Subsidiaries to, without the prior
written consent of Parent (such consent not to be unreasonably
withheld, delayed or conditioned):
(a) amend its articles of incorporation, bylaws or other
similar organizational documents (whether by merger,
consolidation or otherwise);
(b) split, combine or reclassify any shares of capital
stock of the Company or any of its Subsidiaries or declare, set
aside or pay any dividend or other distribution (whether in
cash, stock or property or any combination thereof) in respect
of the capital stock of the Company or its Subsidiaries, or
redeem, repurchase or otherwise acquire or offer to redeem,
repurchase, or otherwise acquire any Company Securities or any
Company Subsidiary Securities (other than the repurchase by the
Company of any Company Securities as required by the terms of
the Stock Plan);
(c) (i) other than the issuance of Company Stock upon
conversion of the Company Convertible Debt Notes immediately
prior to the Effective Time pursuant to Section 7 of the
Company Convertible Debt NPA, issue, deliver or sell, or
authorize the issuance, delivery or sale of, any shares of any
Company Securities or Company Subsidiary Securities, or
(ii) amend any term of any Company Security or any Company
Subsidiary Security (in each case, whether by merger,
consolidation or otherwise);
(d) incur any capital expenditures or any obligations or
liabilities in respect thereof, except for any capital
expenditures as identified on Section 6.01(d) of the
Company Disclosure Schedule, which shall not exceed $10,000,000
for any individual project or the amount set forth on
Section 6.01(d) of the Company Disclosure Schedule in the
aggregate;
(e) acquire (by merger, consolidation, acquisition of stock
or assets or otherwise), directly or indirectly, any assets,
securities, properties, interests or businesses, other than
(i) supplies in the ordinary course of business of the
Company and its Subsidiaries in a manner that is consistent with
past practice, (ii) acquisitions of coal reserves with a
purchase price (including assumed indebtedness) that does not
exceed $5,000,000 individually or $25,000,000 in the aggregate
(iii) capital expenditures permitted under
Section 6.01(d) above and (iv) acquisitions of
securities that do not exceed $2,000,000 in the aggregate made
with funds held in escrow accounts (and the reinvestment of
amounts and investments held as of the date hereof in escrow
accounts) established to support reclamation obligations of the
Company or any of its Subsidiaries;
(f) sell, lease or otherwise transfer, or create or incur
any Lien (other than Permitted Liens) on, any of the
Company’s or its Subsidiaries’ assets, securities,
properties, interests or businesses, other than (i) sales
of inventory in the ordinary course of business consistent with
past practices and (ii) sales of assets, securities,
properties, interests or businesses with a sale price (including
any related assumed indebtedness) that does not exceed
$5,000,000 individually or $25,000,000 in the aggregate;
(g) make any loans, advances (other than advances pursuant
to commercial transactions in the ordinary course of business
and advances to employees in the ordinary course of business) or
capital contributions to, or investments in, any other Person,
other than to wholly owned Subsidiaries in the ordinary course
of business consistent with past practice;
(h) create, incur, assume, suffer to exist or otherwise be
liable (including pursuant to a guarantee) with respect to any
indebtedness for borrowed money (which, for the avoidance of
doubt, shall not be deemed to include capital leases or
indebtedness up to an aggregate principal amount of $50,000,000
arising under the Funded Letter of Credit Facility or in respect
of the Funded Letters of Credit (each, as defined in the Company
Credit Agreement) issued pursuant thereto) if, after such
creation, incurrence, assumption, sufferance or liability, the
aggregate principal amount of indebtedness for borrowed money of
the Company and its Subsidiaries (or in respect of which the
Company or any of its Subsidiaries is otherwise liable) would
exceed $250,000,000 (after deducting up to $25,000,000 of
unrestricted cash or cash equivalents owned and held by the
Company and its Subsidiaries at such time);
(i) (i) enter into any agreement or arrangement that
limits or otherwise restricts in any material respect the
Company, any of its Subsidiaries or any of their respective
Affiliates or any successor thereto or that would, after the
Effective Time, limit or restrict in any material respect the
Company, any of its Subsidiaries, the Surviving Corporation,
Parent or any of their respective Affiliates, from engaging or
competing in any line of business, in any location or with any
Person or (ii) (A) enter into any Covered Contract or, if
consent is granted to enter into a Covered Contract and such
Covered Contract is entered into, amend or modify in any
material respect or terminate any such Covered Contract entered
into after
the date hereof, (B) amend or modify in any material
respect or terminate any Material Contract or (C) otherwise
waive, release or assign any material rights, claims or benefits
of the Company or any of its Subsidiaries;
(j) except (A) for actions described on
Section 6.01(j)(A) of the Company Disclosure Schedule,
(B) to the extent required by Applicable Law, (C) to
the extent required pursuant to the terms of any outstanding
agreement or instrument that the Company or any of its
Subsidiaries is a party (including pursuant to the Stock Plan)
to and that is set forth on Section 4.21(a)(ix) of the
Company Disclosure Schedule and (D) for action required by
the Company’s existing severance and retention plan in
effect as of the date hereof: (i) grant or increase any
severance or termination pay to (or amend any existing
arrangement with) any director, officer or employee of the
Company or any of its Subsidiaries, (ii) increase benefits
payable under any existing severance or termination pay policies
or employment agreements, (iii) enter into any employment,
retention, change in control, deferred compensation or other
similar agreement or arrangement (or amend any such existing
agreement or arrangement) with any director, officer, employee
or independent contractor of the Company or any of its
Subsidiaries, (iv) establish, adopt or amend (except as
required by Applicable Law) any collective bargaining, bonus,
profit-sharing, thrift, pension, retirement, equity-based or
other benefit plan or arrangement covering any director,
officer, employee or independent contractor of the Company or
any of its Subsidiaries or (v) increase compensation, bonus
or other benefits payable to any director, officer, employee or
independent contractor of the Company or any of its Subsidiaries;
(k) change the Company’s methods of accounting, except
as required by concurrent changes in GAAP, as agreed to by its
independent public accountants;
(l) except as set forth on Section 6.01(l) of the
Company Disclosure Schedule, settle, or offer or propose to
settle, (i) any litigation, investigation, arbitration,
proceeding or other claim involving or against the Company or
any of its Subsidiaries unless such settlement would not result
in (A) the imposition of a consent order, injunction,
decree or obligation that would restrict the future activity or
conduct of the Company or any of its Affiliates, (B) a
finding or admission of a violation of law or violation of the
rights of any Person by the Company or any of its Affiliates,
(C) a finding or admission that would have an adverse
effect on other claims made or threatened against the Company or
any of its Affiliates, or (D) any monetary liability on the
part of the Company or any of its Subsidiaries in excess of
$500,000 for any given matter or $1,000,000 in the aggregate for
all matters, (ii) any stockholder litigation or dispute
against the Company or any of its officers or directors or
(iii) any litigation, arbitration, proceeding or dispute
that relates to the transactions contemplated hereby;
(m) take any action that would intentionally make any
representation or warranty of the Company hereunder inaccurate
in any material respect at, or as of any time before, the
Effective Time as if made as of the Effective Time;
(n) permit its existing lessees, licensees and assignees or
agents to conduct exploration, development, drilling or mining
operations for oil, gas, coal bed methane or any reserved
minerals in a manner that will adversely affect any active coal
mining operations on any Company Leased Real Property or any
Company Owned Real Property in any material respect; or
(o) agree, resolve or commit to do any of the foregoing.
Section 6.02. Notice
of Stockholder Consents; Company Information Statement.
(a) As promptly as practicable after the execution and
delivery of this Agreement by each of the parties hereto, but in
no event later than ten Business Days after the date hereof, the
Company shall prepare and mail a notice complying with the
requirements of Section 228 of Delaware Law to all
Stockholders who have not executed and delivered a Stockholder
Consent. Such notice shall be reasonably acceptable to Parent.
(b) As promptly as practicable after the execution and
delivery of this Agreement by each of the parties hereto, the
Company shall prepare, with the cooperation and assistance of
Parent, an information statement (the “Information
Statement”), which shall include information about this
Agreement, the other Transaction
Documents, the Merger and the other transactions contemplated
hereby and thereby. The Information Statement shall be
reasonably acceptable to Parent. The Company shall cause the
Information Statement to be mailed to the Stockholders as
promptly as practicable (but in no event earlier than two
Business Days after the initial filing of the Registration
Statement with the SEC). The Company shall comply with the
requirements of Section 262 of Delaware Law. The
Information Statement and any amendments or supplements thereto,
when first mailed to holders of Company Stock, will comply as to
form in all material respects with the applicable requirements
of Delaware Law, and will not contain any untrue statement of a
material fact or omit to state any material fact necessary in
order to make the statements made therein, in the light of the
circumstances under which they were made, not misleading (other
than information which is contained in the Information Statement
and is supplied by Parent); provided that to the extent
the Information Statement or any amendment or supplement thereto
contains information of the same nature as the matters
referenced in the first sentence of Section 4.22(k) (as
such matters relate to the Company and its Subsidiaries), such
information shall be true (and not fail to omit necessary facts)
based only upon the knowledge of the Company.
Section 6.03. No
Solicitation. (a) Neither the Company nor
any of its Subsidiaries shall, nor shall the Company or any of
its Subsidiaries authorize or permit any of its or their
stockholders, officers, directors, employees, investment
bankers, attorneys, accountants, consultants, representatives,
agents or advisors (collectively,
“Representatives”) to, directly or indirectly,
(i) solicit, initiate or take any action to facilitate or
encourage the submission of any Acquisition Proposal,
(ii) enter into or participate in any discussions or
negotiations with, furnish any information relating to the
Company or any of its Subsidiaries or afford access to the
business, properties, assets, books or records of the Company or
any of its Subsidiaries to, otherwise knowingly cooperate in any
way with, or knowingly assist, participate in, facilitate or
encourage any effort by any Third Party that is seeking to make,
or has made, an Acquisition Proposal, or (iii) enter into
any agreement in principle, letter of intent, term sheet or
other similar instrument relating to an Acquisition Proposal.
(b) The Company shall, and shall cause its Subsidiaries and
its and their respective Representatives to, cease immediately
and cause to be terminated any and all existing activities,
discussions or negotiations, if any, with any Third Party or any
Third Party’s Representatives with respect to any
Acquisition Proposal. The Company shall promptly, after the date
hereof, request that each Third Party (other than the
Company’s Representatives), if any, that has executed a
currently binding confidentiality agreement within the
24-month
period prior to the date hereof in connection with its
consideration of any Acquisition Proposal return or destroy all
confidential information heretofore furnished to such Person by
or on behalf of the Company or any of its Subsidiaries (and all
analyses and other materials prepared by or on behalf of such
Person that contains, reflects or analyzes that information).
The Company shall take all commercially reasonable actions
necessary to secure its rights and ensure the performance of
such other party’s obligations under such confidentiality
agreements as promptly as practicable; provided that
except as set forth in the preceding sentence (relating to the
request of the Company) the Company shall not be required to
take action to cause a Third Party to return or destroy
information unless the Company has knowledge of a breach of the
confidentiality or use provisions of the applicable
confidentiality agreement.
(c) Notwithstanding anything to the contrary contained in
this Section 6.03, if at any time following the date of
this Agreement and prior to obtaining the Company Stockholder
Approval, the Company has received a written Acquisition
Proposal from a third party that the Company’s Board of
Directors believes in good faith to be bona fide and the
Company’s Board of Directors determines in good faith,
after consultation with an independent financial advisor and an
outside counsel, that such Acquisition Proposal constitutes or
could reasonably be expected to result in a Superior Proposal,
then the Company may: (A) furnish information with respect
to the Company and its Subsidiaries to the person making such
Acquisition Proposal, (B) participate in discussions or
negotiations with the person making such Acquisition Proposal
regarding such Acquisition Proposal and (C) terminate this
Agreement pursuant to Section 10.01(e) to concurrently
enter into a definitive agreement with respect to such Superior
Proposal, if the Board determines in good faith that the failure
to take such action would violate its fiduciary duties under
Applicable Law. During the time period contemplated by the first
sentence of this clause (c), the Company shall promptly notify
Parent if it receives an Acquisition Proposal from a person or
group of related persons (including the material terms and
conditions thereof but
not the identity of the person making such Acquisition Proposal)
and shall keep Parent apprised of any material developments,
discussions and negotiations concerning such Acquisition
Proposal. As used herein, the term “Superior
Proposal” means any bona fide binding written
Acquisition Proposal not obtained in violation of this
Section 6.03 that the Company’s Board of Directors
determines in its good faith judgment provides for terms and
conditions that are more favorable to the Company’s
stockholders from a financial point of view than this Agreement;
provided that for purposes of the definition of
“Superior Proposal”, the references to
“20% or more” in the definition of Acquisition
Proposal shall be deemed to be references to “a
majority” and the definition of Acquisition Proposal shall
only refer to a transaction or series of transactions
(x) directly involving the Company (and not exclusively its
Subsidiaries) or (y) involving a sale or transfer of all or
substantially all of the assets of the Company and its
Subsidiaries, taken as a whole.
Section 6.04. Tax
Matters. (a) From the date hereof until the
Effective Time, neither the Company nor any of its Subsidiaries
shall make or change any material Tax election, change any
annual tax accounting period, adopt or change any method of tax
accounting, file any material amended Tax Returns or claims for
material Tax refunds, enter into any material closing agreement,
surrender any material Tax claim, audit or assessment, surrender
any right to claim a material Tax refund, offset or other
reduction in Tax liability, consent to any extension or waiver
of the limitations period applicable to any Tax claim or
assessment or take or omit to take any other action, if any such
action or omission would have the effect of increasing the Tax
liability or reducing any Tax asset of the Company or any of its
Subsidiaries.
(b) The Company and each of its Subsidiaries shall
establish or cause to be established in accordance with GAAP on
or before the Effective Time an adequate accrual for all Taxes
due with respect to any period or portion thereof ending prior
to or as of the Effective Time.
(c) All transfer, documentary, sales, use, stamp,
registration, value added and other such Taxes and fees
(including any penalties and interest) incurred in connection
with the Merger (including any real property transfer tax and
any similar Tax) shall be paid by the Company when due, and the
Company shall, at its own expense, file all necessary Tax
returns and other documentation with respect to all such Taxes
and fees for which Applicable Law imposes a filing obligation on
the Company, and, if required by Applicable Law, the Company
shall, and shall cause its Subsidiaries to, join in the
execution of any such Tax returns and other documentation.
(d) From the date hereof until the Effective Time, the
Company shall cooperate fully, as and to the extent reasonably
requested by Parent and its authorized representatives, in
connection with Tax matters relating to the Company and its
Subsidiaries, including providing reasonable access to the
offices, books and records, and employees and any third-party
tax consultants of the Company and its Subsidiaries, providing
records and information that are reasonably relevant to the
preparation and filing of any Tax Return, statement, report or
form, providing records and information relevant to any audit,
litigation or other proceeding, providing copies of any Tax
Sharing Agreements and making employees and any third-party tax
consultants available on a mutually convenient basis to provide
additional information and explanation of any material provided
hereunder.
Section 6.05. Transaction
Expenses. Prior to Closing, the Company will use
its reasonable best efforts to obtain customary
“pay-off” letters from each of the Persons in respect
of whom Transaction Expenses are, will be or were payable,
acknowledging that each of such Persons has been paid in full,
or will as of the Closing, be paid in full, all Transaction
Expenses owed to it. All Transaction Expenses that are in excess
of the Transaction Expenses Cap and that are not included in the
Excess Transaction Expenses Deduction Amount shall be the sole
responsibility of the Designated Stockholders in accordance with
Section 11.02(a) (and, if any claim is made upon the
Company or any of its Subsidiaries after the Closing with
respect to any such Transaction Expenses, Parent may, in its
discretion, elect to have such expenses paid from the Escrow
Property in accordance with Section 11.02(a) and the Escrow
Agreement).
Section 6.06. Company
Convertible Debt. Prior to the Closing, the
Company will not (i) amend or waive any term (including the
transfer restrictions contained therein) of any of the Company
Convertible Debt Notes or any related agreement (including the
Company Convertible Debt NPA), in either case, in a manner
adverse to Parent (it being agreed and understood that any
amendment or waiver of any term having an effect
that applies only in the event this Agreement is terminated
shall not, for purposes hereof, be “in a manner adverse to
Parent”) or (ii) repay or prepay any of the Company
Convertible Debt Notes.
Section 6.07. 280G
Approval. Prior to the Closing, the Company will
use its commercially reasonable efforts to satisfy the approval
requirements of Section 280G(b)(5)(B) of the Code with
respect to all payments to be made to disqualified individuals
(within the meaning of Section 280G of the Code) in
connection with the transactions contemplated hereby, including
pursuant to the Stock Plan.
ARTICLE 7
Covenants
of Parent
Parent agrees that:
Section 7.01. Conduct
of Parent. From the date hereof until the
Effective Time or the earlier termination of this Agreement in
accordance with the terms of Article 10, without the prior
written consent of the Company (such consent not to be
unreasonably withheld, delayed or conditioned):
(b) Parent shall not declare, set aside or pay any dividend
or other distribution (whether in cash, stock or property or any
combination thereof) in respect of its capital stock; and
(c) Parent shall not, and shall not permit any of its
Subsidiaries to, take any action that would intentionally make
any representation and warranty of Parent hereunder inaccurate
in any material respect at, or as of any time prior to, the
Effective Time as if made as of the Effective Time.
Section 7.02. Obligations
of Merger Subsidiary. Parent shall take all
action necessary to cause Merger Subsidiary to perform its
obligations under this Agreement and to consummate the Merger on
the terms and conditions set forth in this Agreement.
Section 7.03. Stock
Exchange Listing. Parent shall use its
commercially reasonable efforts to cause the shares of Parent
Stock to be issued pursuant to the Parent Stock Issuance to be
listed on the New York Stock Exchange, subject to official
notice of issuance.
Section 7.04. Employee
Matters.
(a) As used herein, the term “Company
Employees” means the individuals who are employed by
the Company or any Subsidiary of the Company immediately prior
to the Effective Time and the term “Continuing
Employees” means the Company Employees who continue to
be employed with Parent or one of its Subsidiaries or the
Surviving Corporation or one of its Subsidiaries upon the
Effective Time. Parent shall, and shall cause the Surviving
Corporation and its Subsidiaries to, provide any Company
Employee whose employment is involuntarily terminated within six
months following the Closing Date (other than for cause) who is
covered by a severance plan listed on Section 7.04(a) of
the Parent Disclosure Schedule with severance benefits as
provided under such severance plan; provided that such
Company Employee or Continuing Employee, as the case may be,
satisfies any conditions for the receipt of severance benefits
under such applicable severance plan.
(b) Subject to Applicable Law, Parent shall and shall cause
the Surviving Corporation and its Subsidiaries to, for six
months following the Closing, provide to each Continuing
Employee while such Continuing Employee continues to be employed
by Parent or one of its Subsidiaries or the Surviving
Corporation or one of its Subsidiaries, employee benefits that
are, at the election of Parent, substantially comparable in the
aggregate to either (i) those provided to similarly
situated employees of Parent or (ii) those provided by the
Company and its Subsidiaries immediately prior to the Closing.
(c) Nothing contained herein shall be construed as
requiring Parent, its Affiliates, the Company or its
Subsidiaries to continue any specific Company Employee Plan, or
to continue the employment of any specific person. The
provisions of this Section 7.04 are solely for the benefit
of the parties to this Agreement, and no
Company Employee or Continuing Employee shall have any
third-party beneficiary rights or rights to any specific levels
of compensation or benefits as a result of the application of
this Section 7.04.
Section 7.05. Board
Appointments. Effective as of the Effective Time
(or, if the Effective Time shall occur before the date of
Parent’s 2008 annual meeting of stockholders, promptly
after such meeting), the Board of Directors of Parent shall
(i) cause Parent’s Board of Directors to be expanded
by such number of members as the Stockholders are then entitled
to nominate pursuant to the Voting Agreement and
(ii) appoint to the Board of Directors the individuals
designated in accordance with the Voting Agreement.
Section 7.06. Director
and Officer Indemnification. (a) Parent
agrees that prior to the sixth anniversary of the Closing Date,
Parent will not, and will not permit the Company to, amend
(whether by merger, dissolution, liquidation or otherwise) the
certificate of incorporation or bylaws of the Company in a
manner that would diminish the indemnification rights of the
officers and directors of the Company thereunder with respect to
acts or omissions occurring prior to the Effective Time and
Parent agrees to cause the Surviving Corporation to indemnify
(and advance expenses) to the maximum extent provided therein
except to the extent the Surviving Corporation would be limited
from doing so under Applicable Law. For the avoidance of doubt
the parties agree that any indemnification payment required to
be made thereunder with respect to any claim, action, suit or
proceeding by any holder of shares of capital stock of the
Company will be subject to indemnification under
Section 11.02(a) (in accordance with the terms thereof).
The provisions of this Section 7.06 will survive the
Closing, shall be enforceable by each officer and director of
the Company and his or her successors and representatives, each
of whom shall be a third party beneficiary of the obligations
set forth in this Section 7.06, and shall be in addition to
any rights such officer or director may have under Applicable
Law or any agreement set forth on Section 4.21(a)(ix) of
the Company Disclosure Schedule.
(b) At the Closing, Parent shall cause the Surviving
Corporation to use all commercially reasonably efforts to obtain
and maintain a “tail” extension of (i) the
Company’s existing directors’ and officers’
insurance policies and (ii) the Company’s existing
fiduciary liability insurance policies, in each case for acts or
omissions occurring prior to the Effective Time and for a claims
reporting or discovery period of at least six years from and
after the Effective Time from an insurance carrier with the same
or better credit rating as the Company’s current insurance
carrier with respect to directors’ and officers’
liability insurance and fiduciary liability insurance
(collectively, “D&O Insurance”) with
terms, conditions, retentions and limits of liability that are
at least as favorable as the Company’s existing policies
with respect to any actual or alleged error, misstatement,
misleading statement, act, omission, neglect, breach of duty or
any other matter claimed against a director or officer of the
Company or any of its Subsidiaries by reason of him or her
serving in such capacity that existed or occurred at or prior to
the Effective Time (including in connection with this Agreement
or the other Transaction Documents or the transactions or
actions contemplated hereby or thereby); provided that in
no event shall the Surviving Corporation be required to expend
for such tail extension an aggregate amount in excess of
$350,000; provided further that if the cost of such
insurance coverage exceeds such amount, the Surviving
Corporation shall obtain a policy with the greatest coverage
available (in its reasonable judgment) for a cost not exceeding
such amount. In lieu of Parent’s and the Surviving
Corporation’s obligations in the preceding sentence, the
Company is hereby expressly permitted to, prior to Closing,
purchase such tail extension; provided that the terms and
conditions thereof are as set forth in this Section 7.06(b)
and otherwise reasonably acceptable to Parent, with the
aggregate payments made (or to be made) by the Company in no
event exceeding an aggregate amount of $350,000.
(c) If the Surviving Corporation or any of its respective
successors or assigns (i) shall consolidate with or merge
into any other corporation or entity and shall not be the
continuing or surviving corporation or entity of such
consolidation or merger or (ii) shall transfer all or
substantially all of its properties and assets to any
individual, corporation or other entity, then, and in each such
case, proper provisions shall be made so that the successors and
assigns of the Surviving Corporation shall assume all of the
obligations set forth in this Section 7.06.
Section 7.07. Books
and Records. From and after the Closing, Parent
and the Surviving Corporation shall provide the Stockholder
Representative (and its representatives and advisors) with
reasonable access, for (a) financial reporting or
disclosure purposes, or (b) defending any claim in respect
of which an
indemnification claim has been made, to all of the
Company’s and its Subsidiaries’ accounting and tax
books, records, notes and memoranda, whether electronic or
written (“Books and Records”) in existence on
or prior to the Effective Time, pertaining or relating to the
period on or prior to the Effective Time and reasonably
necessary for the relevant purpose; provided that
(A) the provision of access pursuant to this
Section 7.07 shall be during normal business hours,
following a reasonable advance request for such access and shall
not interfere unreasonably with the conduct of the business of
Parent or any of its Subsidiaries (including the Company and its
Subsidiaries) and (B) the provision of access pursuant to
this Section 7.07 shall be conditioned on the Person
receiving access entering into a confidentiality agreement in
favor of Parent that is reasonably acceptable to Parent. Unless
otherwise consented to in writing by the Stockholder
Representative, neither Parent nor the Surviving Corporation
shall, for a period of five years following the Closing Date or
such longer period as retention thereof is required by
Applicable Law, destroy, alter or otherwise dispose of (or allow
the destruction, alteration or disposal of) any of the Books and
Records without first offering to surrender the same to the
Stockholder Representative.
(a) Except to the extent expressly provided elsewhere in
this Agreement (including Section 8.09), the Company and
Parent shall use their respective commercially reasonable
efforts to take, or cause to be taken, all actions and to do, or
cause to be done, all things necessary, proper or advisable
under Applicable Law to consummate the transactions contemplated
by this Agreement, including (i) preparing and filing as
promptly as practicable with any Governmental Authority or other
Third Party all documentation to effect all necessary filings,
notices, petitions, statements, registrations, submissions of
information, applications and other documents and
(ii) obtaining and maintaining all approvals, consents,
registrations, permits, authorizations and other confirmations
required to be obtained from any Governmental Authority or other
Third Party that are necessary, proper or advisable to
consummate the transactions contemplated by this Agreement;
provided that the parties hereto understand and agree
that neither the commercially reasonable efforts of any party
hereto nor any other obligation of a party under this Agreement
shall be deemed to include (i) entering into any
settlement, undertaking, consent decree, stipulation or
agreement with any Governmental Authority in connection with the
transactions contemplated hereby or (ii) divesting or
otherwise holding separate (including by establishing a trust or
otherwise), or taking any other action (or otherwise agreeing to
do any of the foregoing) with respect to any of its or the
Surviving Corporation’s Subsidiaries or any of their
respective Affiliates’ businesses, assets or properties. No
party shall pay any fee or make any payment to any Person (other
than customary filing fees), make any commitment or enter into
any amendment, consent or other agreement, in each case, with
respect to obtaining any such approval, consent, registration,
permit, authorization or other confirmation, except with the
written consent of Parent.
(b) In furtherance and not in limitation of the foregoing,
each of Parent and the Company shall make an appropriate filing
of a Notification and Report Form pursuant to the HSR Act with
respect to the transactions contemplated hereby as promptly as
practicable and in any event within 20 Business Days of the date
hereof and shall use its commercially reasonable efforts to
supply as promptly as practicable any additional information and
documentary material that may be requested pursuant to the HSR
Act. Parent shall pay the filing fee under the HSR Act with
respect to the acquisition of the Company by Parent.
Section 8.02. Certain
Filings.The Company and Parent shall cooperate
with one another (i) in determining whether any action by
or in respect of, or filing with, any Governmental Authority is
required, or any actions, consents, approvals or waivers are
required to be obtained from parties to any material contracts,
in connection with the consummation of the transactions
contemplated by this Agreement and (ii) in taking such
actions or making any such filings, furnishing information
required in connection therewith and seeking timely to obtain
any such actions, consents, approvals or waivers.
Notwithstanding the foregoing, matters
related to the Registration Statement (and approval thereof by
the SEC) shall be governed by Section 8.09 and not this
Section 8.02, and matters relating to filings under the HSR
Act shall be governed by Section 8.01 and not this
Section 8.02.
Section 8.03. Public
Announcements. Parent and the Company shall
consult with each other before issuing any press release, making
any other public statement or scheduling any press conference or
conference call with investors or analysts with respect to this
Agreement or the transactions contemplated hereby and, except as
may be required by Applicable Law or any listing agreement with
or rule of any national securities exchange (in which case
reasonable efforts shall be used to consult, including the
sharing of a draft thereof prior to public release), shall not
issue any such press release, make any such other public
statement or schedule any such press conference or conference
call before such consultation; provided (i) that
Parent shall not be required to consult with the Company prior
to making any employee communications and (ii) neither
party shall be required to consult with the other party prior to
making any communications substantially similar to
communications previously issued after consultation with such
other party.
Section 8.04. Further
Assurances. At and after the Effective Time, the
officers and directors of the Surviving Corporation shall be
authorized to execute and deliver, in the name and on behalf of
the Company or Merger Subsidiary, any deeds, bills of sale,
assignments or assurances and to take and do, in the name and on
behalf of the Company or Merger Subsidiary, any other actions
and things to vest, perfect or confirm of record or otherwise in
the Surviving Corporation any and all right, title and interest
in, to and under any of the rights, properties or assets of the
Company acquired or to be acquired by the Surviving Corporation
as a result of, or in connection with, the Merger.
Section 8.05. Notices
of Certain Events.
(a) Each of the Company and Parent shall promptly notify
the other of:
(i) any notice or other communication from any Person
alleging that the consent of such Person is or may be required
in connection with the transactions contemplated by this
Agreement;
(ii) any notice or other communication from any
Governmental Authority in connection with the transactions
contemplated by this Agreement;
(iii) any actions, suits, claims, investigations or
proceedings commenced or, to its knowledge, threatened against,
relating to or involving or otherwise affecting such party and
any of its Subsidiaries, that relate to the consummation of the
transactions contemplated by this Agreement;
(iv) any inaccuracy of any representation or warranty of
that party contained in this Agreement at any time during the
term hereof that could reasonably be expected to cause the
condition set forth in Section 9.02(a) or Section 9.03(a),
as applicable, not to be satisfied; and
(v) any failure of that party to comply with or satisfy any
covenant, condition or agreement to be complied with or
satisfied by it hereunder;
provided, however, that the delivery of any notice
pursuant to this Section 8.05 shall not limit or otherwise
affect the remedies available hereunder to the party receiving
that notice.
(b) If the condition set forth in Section 9.02(a)(iv)
is not capable of being satisfied prior to the End Date, then,
at any time prior to the fifth Business Day before the date on
which the Closing would have been expected to occur absent the
failure of such condition to be satisfied, the Company may
deliver a notice to Parent stating that the condition will not
be satisfied, explaining in reasonable detail why such condition
will not be satisfied and stating that Parent has the right to
terminate the Agreement pursuant to Section 10.01(c)(ii).
In such an event, Parent shall, prior to Closing, elect to
either (A) waive the condition set forth in
Section 9.02(a)(iv) or (B) terminate this Agreement
pursuant to Section 10.01(c)(ii). If Parent elects to so
waive the condition then Parent will be deemed to have waived
all claims for indemnification pursuant to Section 11.02(a)
in respect of all Damages that, based on the description in the
notice provided to Parent pursuant to the first sentence of this
Section 8.05(b), would reasonably be expected to arise from
the matters described in such notice.
(c) If the condition set forth in Section 9.03(a)(iii)
is not capable of being satisfied prior to the End Date, then,
at any time prior to the fifth Business Day before the date on
which the Closing would have been expected to occur absent the
failure of such condition to be satisfied, Parent may deliver a
notice to the Company stating that the condition will not be
satisfied, explaining in reasonable detail why such condition
will not be satisfied and stating that the Company has the right
to terminate the Agreement pursuant to
Section 10.01(d)(iv). In such an event, the Company shall,
prior to Closing, elect to either (A) waive the condition
set forth in Section 9.03(a)(iii) or (B) terminate
this Agreement pursuant to Section 10.01(d)(iv). If the
Company elects to so waive the condition then the Company and
the Stockholders will be deemed to have waived all claims for
indemnification pursuant to Section 11.02(d) in respect of
all Damages that, based on the description in the notice
provided to the Company pursuant to the first sentence of this
Section 8.05(c), would reasonably be expected to arise from
the matters described in such notice.
Section 8.06. Confidentiality. Prior
to the Effective Time and after any termination of this
Agreement, each of Parent and the Company shall hold, and shall
cause its shareholders, officers, directors, employees,
accountants, counsel, consultants, advisors and agents to hold,
in confidence, all confidential documents and information
concerning the other party furnished to it or its Affiliates in
connection with the transactions contemplated by this Agreement
in accordance with, and subject to the provisions of, the
Confidentiality Agreements, including the provisions thereof
limiting the use of such documents and information. Except as
provided in the preceding sentence and except with respect to
the “standstill” obligations set forth in the
Confidentiality Agreements (which obligations shall continue as
set forth in such Confidentiality Agreements except to the
extent relating to the transactions contemplated hereby), the
Confidentiality Agreements are hereby terminated.
Section 8.07. Tax-free
Reorganization. Prior to the Effective Time, each
of Parent and the Company shall (and shall cause its respective
controlled Affiliates to) use its commercially reasonable
efforts to cause the Merger to qualify as a 368 Reorganization,
and shall not take any action reasonably likely to cause the
Merger not so to qualify. Parent shall not take, or cause the
Company to take, any action after the Effective Time reasonably
likely to cause the Merger not to qualify as a 368
Reorganization.
Section 8.08. Access
to Information. From the date hereof until the
Effective Time and subject to Applicable Law and each
Confidentiality Agreement, each party hereto shall:
(i) give the other party hereto and their respective
counsel, financial advisors, auditors and other authorized
representatives reasonable access to its and its
Subsidiaries’ offices, properties, books and records,
(ii) furnish to the other party hereto, its counsel,
financial advisors, auditors and other authorized
representatives such financial and operating data and other
information as such Persons may reasonably request,
(iii) instruct its and its Subsidiaries’ employees,
counsel, financial advisors, auditors and other authorized
representatives to cooperate with the other party hereto in
connection therewith and (iv) cooperate in good faith with
the other party hereto, its counsel, financial advisors,
auditors and other authorized representatives (including in
connection with Parent’s transition planning activities);
provided that (A) the provision of access pursuant
to this Section 8.08 shall be during normal business hours,
following a reasonable advance request for such access and shall
not interfere unreasonably with the conduct of the business of
any Person; and (B) the provision of access pursuant to
this Section 8.08 shall, in the case of any Person other
than a party or its employees, be conditioned on (x) any
such Person entering into an agreement in favor of the other
party hereto on terms no less favorable to such party than the
applicable Confidentiality Agreement or (y) as an
alternative in the case of a representative of a party, such
representative having agreed to comply with the terms of the
Confidentiality Agreement protecting the other party’s
information. No information or knowledge obtained in any
investigation pursuant to this Section shall be deemed to modify
or affect any representation or warranty made by any party
hereunder. It is understood and agreed that because of the
different circumstances involved the scope of access and
information to be provided to Parent pursuant to the first
sentence of this Section 8.08 will be different from the
scope of access and information to be provided to the Company
and that the scope of access and information to be provided to
Parent is based upon what is reasonable for the buyer of an
entire business or company and the scope or access and
information to be provided to the Company is based upon what is
reasonable for the acquiror of a 31% interest in a public
company.
(a) As promptly as practicable following the date of this
Agreement, Parent shall prepare and file with the SEC the
Registration Statement (which shall include the Parent Proxy
Statement and all other proxy materials for the meeting of its
stockholders (the “Parent Stockholder Meeting”)
to be called for the purposes of seeking the Parent Stockholder
Approval). The Company shall cooperate in the preparation of the
Registration Statement (which shall include the Parent Proxy
Statement). The information in the Registration Statement (which
shall include the Parent Proxy Statement), as it may be amended
or supplemented, shall not, on the date such Registration
Statement is declared effective by the SEC, at the time the
Parent Proxy Statement is first mailed to Parent’s
stockholders, at the time of the Parent Stockholder Meeting and
at the Closing, contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light
of the circumstances under which they are made, not false or
misleading, or omit to state any material fact necessary to
correct any statement in any earlier communication with respect
to either the Parent Stock Issuance or the solicitation of
proxies for the Parent Stockholder Meeting which has become
false or misleading; provided that to the extent the
Registration Statement or any amendment or supplement thereto
contains information of the same nature as the matters
referenced in the first sentence of Section 4.22(k) (as
such matters relate to Parent and its Subsidiaries), such
information shall be true (and not fail to omit necessary facts)
based only upon the knowledge of Parent. The Registration
Statement (including the Parent Proxy Statement) will comply as
to form in all material respects with the applicable provisions
of the 1933 Act and the 1934 Act. If at any time prior
to the Closing, any event or information should be discovered by
Parent which should be set forth in a supplement to the Parent
Proxy Statement or an amendment to the Registration Statement,
Parent shall promptly inform the Company. Notwithstanding the
foregoing, Parent makes no representation or warranty with
respect to any information which is contained in the
Registration Statement and is supplied by the Company.
(b) Parent shall use all commercially reasonable efforts to
have the Registration Statement declared effective by the SEC
(which shall include clearance by the SEC of the Parent Proxy
Statement), as promptly as practicable after such filing and
Parent shall cause the Parent Proxy Statement to be mailed to
Parent’s stockholders as promptly as practicable thereafter.
(c) Parent shall promptly notify the Company of the receipt
of any comments from the SEC or its staff and of any request by
the SEC or its staff for amendments or supplements to the
Registration Statement (including the Parent Proxy Statement
included therein) or for additional information and shall supply
the Company with copies of all correspondence between Parent or
any of its representatives and the SEC. Parent and the Company
shall cooperate with each other and provide to each other all
information necessary in order to prepare all amendments to the
Registration Statement (including the Parent Proxy Statement) as
expeditiously as practicable.
(d) If at any time prior to the Parent Stockholder Meeting
there shall occur any event with respect to Parent, or with
respect to the information included in the Registration
Statement (including the Parent Proxy Statement), which event is
required to be described in an amendment or supplement to the
Parent Proxy Statement (or a post-effective amendment to the
Registration Statement), such event shall be so described, and
such amendment or supplement shall as promptly as practicable be
filed with the SEC and, as required by Applicable Law,
disseminated to the Parent’s stockholders.
(e) Parent shall, as soon as practicable following the date
hereof, duly call, give notice of, convene and hold the Parent
Stockholder Meeting for the purpose of seeking the Parent
Stockholder Approval. Parent shall engage a nationally
recognized proxy solicitation firm for the purposes of seeking
the Parent Stockholder Approval and shall instruct such firm to
solicit proxies in a manner that is designed to obtain such
approval within a timely solicitation period, taking into
account all relevant facts and circumstances. Except as required
by Applicable Law, Parent shall, through its Board of Directors,
recommend to its stockholders that they give the Parent
Stockholder Approval, including recommending the Parent Stock
Issuance (the “Parent Board Recommendation”),
and neither Parent nor the Board of Directors of Parent shall
withhold, withdraw, qualify, modify or amend (or publicly
propose or resolve to withhold, withdraw, qualify or modify),
the Parent Board Recommendation (or approve or recommend, or
publicly propose to approve or recommend, any agreement or
transaction, or cause or permit Parent to enter into any
agreement requiring Parent to abandon, terminate or fail to
consummate the transactions contemplated hereby or by the other
Transaction Documents or breach its obligations hereunder or
thereunder, or resolve, propose or agree to do any of the
foregoing). Notwithstanding any withholding, withdrawal,
qualification, modification or amendment of the Parent Board
Recommendation by the Board of Directors of Parent (which, for
the avoidance of doubt, shall only be permitted in accordance
with the third sentence of this Section 8.09(e)), the Board
of Directors shall submit, for Parent Stockholder Approval, the
transactions contemplated by this Agreement to Parent’s
stockholders at the Parent Stockholder Meeting.
(f) The information supplied by the Company and included in
Registration Statement shall not, on the date the Registration
Statement is declared effective by the SEC, the date the Parent
Proxy Statement is first mailed to the Parent’s
stockholders, at the time of the Parent Stockholder Meeting and
at the Closing, contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light
of the circumstances under which they are made, not false or
misleading; provided that to the extent the Registration
Statement or any amendment or supplement thereto contains
information of the same nature as the matters referenced in the
first sentence of Section 4.22(k) (as such matters relate
to the Company and its Subsidiaries), such information shall be
true (and not fail to omit necessary facts) based only upon the
knowledge of the Company. If at any time prior to the Closing,
any event or information should be discovered by the Company
which event is required to be described in an amendment or
supplement to the Parent Proxy Statement (or a post-effective
amendment to the Registration Statement), the Company shall
promptly inform Parent of the same. Notwithstanding the
foregoing, the Company makes no representation or warranty with
respect to any information other than information supplied by
the Company.
(g) The Company agrees that neither it nor any of its
Representatives or any other people acting on its behalf will
engage in solicitation or offering activities in connection with
the Parent Stockholder Meeting or the offering of Parent Stock
in connection with the Merger in violation of the 1933 Act
or the 1934 Act.
(h) Nothing in this Section 8.09 shall prohibit Parent
from combining the Parent Stockholder Meeting with Parent’s
2008 annual meeting of stockholders (including combining the
Parent Proxy Statement with the proxy statement for such annual
meeting) so long as doing so would not reasonably be expected to
materially delay obtaining the Parent Stockholder Approval.
Section 8.10. Financing.
(a) Parent shall (i) subject to the terms and
conditions of the Parent Financing Commitment Letter and subject
to the remainder of this Section 8.10(a), use its
commercially reasonable efforts to complete the Parent Financing
effective as of the Effective Time on the terms and conditions
described in the Parent Financing Commitment Letter and such
other terms and conditions as are necessary to give effect to
the terms and conditions described in the Parent Financing
Commitment Letter that are commercially reasonable, customary
for bridge loans of a similar size and type, and not less
favorable to Parent than those set forth in the Patriot Credit
Agreement (collectively, “Acceptable Parent Financing
Terms”); provided that the consummation of the
Parent Financing on Acceptable Parent Financing Terms would not
reasonably be expected to result in any claim of default under
the Parent Credit Agreement relating to the terms of the Parent
Financing and (ii) commencing at such time as Parent deems
appropriate but in any event no later than 45 days after
the date hereof, use its commercially reasonable efforts to
identify one or more alternate financings on terms satisfactory
to Parent in its discretion and if so identified, to negotiate
the terms of and execute definitive documents with respect to
such alternate financing (such definitive documents, the
“Alternate Financing Documents”), and if so
executed, to consummate the transactions contemplated by the
Alternate Financing Documents (it being agreed and understood
that the determination of Parent to cease negotiating any
alternate financing and to execute or not execute Alternate
Financing Documents shall, in each case, be in Parent’s
discretion). Parent’s obligations pursuant to the preceding
sentence shall, subject to the remainder of this
Section 8.10(a), include using such commercially reasonable
efforts to (i) commencing at such time as Parent deems
appropriate but in any event no later than 30 days after
the date hereof, negotiate definitive agreements with respect to
the Parent Financing on Acceptable Parent Financing Terms and
(ii) satisfy all conditions to
such Parent Financing or such alternate financing, to the extent
the satisfaction of such conditions is within the reasonable
control of Parent. Parent shall in all material respects comply
with its obligations under the Parent Financing Commitment
Letter (or as applicable, any Alternate Financing Documents).
Notwithstanding the foregoing, Parent may (i) amend or
otherwise modify the Parent Financing Commitment Letter or
Alternate Financing Documents or (ii) terminate any
Alternate Financing Documents or terminate the Parent Financing
Commitment Letter so long as (A) such action would not
reasonably be expected to delay or prevent the consummation of
the Merger (other than pursuant to the two Business Day delay
provision pursuant to Section 9.02(k)(ii)) or (B) in
the case of a termination of the Parent Financing Commitment
Letter, Parent has previously entered into binding Alternate
Financing Documents (provided that any termination of the
Parent Financing Commitment Letter shall cause the condition set
forth in Section 9.02(k) to be (upon such termination)
deemed waived in all respects as set for therein).
(b) The Company shall provide to Parent such cooperation
and assistance as is reasonably requested by Parent in
connection with the Parent Financing or any alternate financing,
including (i) participation in meetings,
(ii) furnishing Parent and its financing sources with
financial and other information regarding the Company and its
Subsidiaries as may be reasonably requested by Parent (subject
to such financing sources being bound by the terms of the
Confidentiality Agreement with respect to documents and
information of the Company and its Subsidiaries),
(iii) executing and delivering, as of the Effective Time
(and with effect from and after the Effective Time), any pledge
and security documents, other definitive financing documents, or
other certificates, legal opinions or documents, as may be
reasonably requested by Parent and (iv) taking all
reasonably requested corporate actions, subject to the
occurrence of the Effective Time (and with effect from and after
the Effective Time), reasonably requested by Parent that are
necessary or customary to permit the consummation of the Parent
Financing or any alternate financing (provided that such
corporate action shall not include any determination with
respect to the merits of the Parent Financing or any alternate
financing (or any other arrangement to be in effect after the
Effective Time)). Parent will keep the Company informed on a
reasonably current basis in reasonable detail of the status of
the Parent Financing or any alternate financing. If the Closing
does not occur, Parent shall reimburse the Company for any
reasonable Third Party out of pocket costs (including reasonable
fees and expenses of legal, financial and other advisors)
incurred by the Company in connection with the foregoing matters
in this Section 8.10(b).
(c) Parent shall use its commercially reasonable efforts to
enforce its rights against any other party to the Parent Credit
Agreement with respect to the Parent Financing or any Alternate
Financing Documents and to cause the Administrative Agent or any
other authorized representative of the lenders party to the
Parent Credit Agreement to provide written confirmation to
Parent that the consummation of the Parent Financing as referred
to in Section 9.02(k)(i) or Section 9.02(k)(ii), as
applicable, would not result in any default under the Parent
Credit Agreement, which shall include, but shall not be limited
to, upon the request of the Company, promptly commencing a
litigation proceeding against the Administrative Agent or any
such other party, in which Parent shall use commercially
reasonable efforts to either (A) compel the Administrative
Agent or such other person to provide such confirmation or
(B) seek such other remedies that may be appropriate.
ARTICLE 9
Conditions
to the Merger
Section 9.01. Conditions
to the Obligations of Each Party. The obligations
of the Company, Parent and Merger Subsidiary to consummate the
Merger are subject to the satisfaction of the following
conditions:
(a) the Parent Stockholder Approval shall have been
obtained;
(b) there shall not be in effect any order, decree or
injunction of a court of competent jurisdiction which enjoins or
prohibits consummation of the Merger and there shall be no
Applicable Law that shall have been enacted or promulgated that
prohibits the consummation of the Merger;
(c) any applicable waiting period under the HSR Act
relating to the Merger (including any such applicable waiting
period relating to the Parent Stock Issuance in respect of any
filing by the ArcLight
Funds, Caisse de Dépôt et Placement du Québec and
the ultimate parent entity (as such term is defined in
16 C.F.R. Section 801.1) of Cascade Investment,
L.L.C.) shall have expired or been terminated;
(d) the Registration Statement shall have been declared
effective and no stop order suspending the effectiveness of the
Registration Statement shall be in effect and no proceedings for
such purpose shall be pending before or threatened by the
SEC; and
(e) the shares of Parent Stock to be issued in the Merger
shall have been approved for listing on the New York Stock
Exchange, subject to official notice of issuance.
Section 9.02. Conditions
to the Obligations of Parent and Merger
Subsidiary. The obligations of Parent and Merger
Subsidiary to consummate the Merger are subject to the
satisfaction of the following further conditions:
(a) (i) the Company shall have performed in all
material respects all of its obligations hereunder required to
be performed by it at or prior to the Effective Time,
(ii) the representations and warranties of the Company
contained Sections 4.02, 4.05, 4.12, 4.13, 4.20 and 4.26
shall be true in all material respects at and as of the
Effective Time as if made at and as of such time (except to the
extent that any such representation and warranty expressly
speaks as of an earlier date, in which case such representation
and warranty shall be true in all material respects as of such
earlier date), (iii) the representations and warranties of
the Stockholders in the other Transaction Documents shall be
true at and as of the Effective Time as if made at and as of
such time (except to the extent that any such representation and
warranty expressly speaks as of an earlier date, in which case
such representation and warranty shall be true in all material
respects as of such earlier date), except where the failure of
such representations and warranties to be true and correct, in
the aggregate, would not adversely affect in any material
respect (determined on an overall basis taking into account the
rights and obligations of all Stockholders under all such other
Transaction Documents) any material right of, benefit to or
obligation of Parent contained in such other Transaction
Documents, (iv) the other representations and warranties of
the Company contained in this Agreement and in any certificate
or other writing delivered by the Company pursuant hereto (which
representations and warranties shall, for purposes of this
Section 9.02(a) only, be read without any qualification
contained therein as to materiality or Company Material Adverse
Effect) shall be true at and as of the Effective Time as if made
at and as of such time (except to the extent that any such
representation and warranty expressly speaks as of an earlier
date, in which case such representation and warranty (as so
read) shall be true as of such earlier date), except where the
failure of such representations and warranties to be true and
correct, in the aggregate, has not had and would not reasonably
be expected to have a Company Material Adverse Effect and
(v) Parent shall have received a certificate signed by an
executive officer of the Company to the foregoing effect;
(b) there shall not be instituted or pending any suit,
action or proceeding initiated or maintained by any Governmental
Authority relating to the transactions contemplated by this
Agreement: (i) seeking to restrain, prohibit or otherwise
interfere with the ownership or operation by Parent or any of
its Affiliates of all or any material portion of the business or
assets of the Company or any of its Subsidiaries or of Parent or
any of its Affiliates or to compel Parent or any of its
Affiliates to dispose of all or any material portion of the
business or assets of the Company or any of its Subsidiaries or
of Parent or any of its Affiliates, (ii) seeking to impose
or confirm limitations on the ability of Parent or any of its
Affiliates effectively to exercise full rights of ownership of
the Company or any of its Subsidiaries or (iii) seeking to
require divestiture by Parent or any of its Affiliates of the
Company, any of the Company’s Subsidiaries or any
Subsidiary of Parent or any of its Affiliates (or all or any
material portion of their respective business and assets);
(c) there shall not be any action taken, or any Applicable
Law, injunction, order or decree proposed, enacted, enforced,
promulgated, issued or deemed applicable to the Merger, by any
Governmental Authority, other than the matters described in
Sections 4.03 and 5.03, that could, directly or indirectly,
reasonably be expected to result in any of the consequences
referred to in Section 9.02(b)(i) through (iii);
(d) each of the Escrow Agreement and Registration Rights
Agreement shall have been executed and delivered by each of the
parties thereto (other than Parent), and each of the foregoing
shall be in full force and effect;
(e) each Support Agreement shall be in full force and
effect and no Stockholder party thereto shall be challenging the
effectiveness of any such Support Agreement;
(f) the Voting Agreement shall be in full force and effect
and no Stockholder party thereto shall be challenging the
effectiveness of such Voting Agreement;
(g) the consents and approvals set forth on
Exhibit 9.02(g) shall have been obtained or received, shall
be in full force and effect, and shall be in form and substance
reasonably satisfactory to Parent;
(h) the Company shall have delivered to Parent a
certificate signed by an executive officer of the Company
setting forth all Transaction Expenses (the excess, if any, of
the amount of Transaction Expenses set forth in such certificate
over the Transaction Expenses Cap, the “Excess
Transaction Expenses Deduction Amount”) and certifying
that the Company’s legal counsel, auditors, investment
bankers and other consultants and advisors have agreed to the
amounts set forth in such certificate pursuant to
“pay-off” letters in the form described in
Section 6.05;
(i) neither the Company nor any of its Subsidiaries shall
have suffered a mining catastrophe that has involved, or would
be reasonably likely to involve, a loss of lives;
(j) the Company shall have delivered a certificate (the
“Company Outstanding Stock Number Certificate”)
in form and substance reasonably satisfactory to Parent signed
by an executive officer of the Company setting forth
(i) the number of shares (the “Company Outstanding
Stock Number”) of Company Stock (including vested
Company Restricted Stock and unvested Company Restricted Stock)
outstanding immediately prior to the Effective Time (including,
for the avoidance of doubt, shares of Company Stock issued upon
conversion of the Company Convertible Debt Notes), (ii) the
number of such shares of Company Stock held by each Designated
Stockholder immediately prior to the Effective Time and
(iii) the Merger Conversion Price (as defined in the
Company Convertible Debt NPA);
(k) either (i) the Parent Financing shall have been
consummated upon the Acceptable Parent Financing Terms and the
consummation of the Parent Financing on such terms would not
reasonably be expected to result in any claim of default under
the Parent Credit Agreement relating to the terms of the Parent
Financing or (ii) in lieu of the Parent Financing, Parent
shall have consummated a financing from an alternate source in
an amount not less than the amount of the Parent Financing;
provided that, if Parent is pursuing an alternate source
of financing, the Closing is delayed by more than two Business
Days because of the failure to satisfy the condition set forth
in this Section 9.02(k), and during such period of delay
the ArcLight Funds are ready, willing and able to consummate the
Parent Financing upon Acceptable Parent Financing Terms and the
consummation of the Parent Financing on such terms and
conditions would not reasonably be expected to result in any
claim of default under the Parent Credit Agreement relating to
the terms of the Parent Financing), then at the end of such
period of delay Parent will be required either to so consummate
the Parent Financing or to waive the condition set forth in this
Section 9.02(k); provided further that Parent will
be deemed to have waived the condition in this
Section 9.02(k) if (A) the Parent Financing Commitment
Letter has been terminated by Parent or (B) the condition
set forth in clause (e) under the heading “Conditions
Precedent to Drawdown” on Exhibit A to the Parent
Financing Commitment Letter fails to be satisfied as a result of
the Parent Credit Agreement having been waived, amended,
supplemented or otherwise modified, in each case in any manner
materially adverse to the interests of the Lender (as defined on
such Exhibit A), without the Lender’s consent; and
(l) Parent shall have received all documents it may
reasonably request relating to the existence of the Company and
its Subsidiaries and the authority of the Company for this
Agreement, all in form and substance reasonably acceptable to
Parent.
Section 9.03. Conditions
to the Obligations of the Company. The
obligations of the Company to consummate the Merger are subject
to the satisfaction of the following further conditions:
(a) (i) Parent shall have performed in all material
respects all of its obligations hereunder required to be
performed by it at or prior to the Effective Time, (ii) the
representations and warranties of Parent contained
Sections 5.02, 5.05, 5.13, 5.14 and 5.20 shall be true in
all material respects at and as of the Effective Time as if made
at and as of such time (except to the extent that any such
representation and warranty expressly speaks as of an earlier
date, in which case such representation and warranty shall be
true in all material respects as of such earlier date),
(iii) the other representations and warranties of Parent
contained in this Agreement and in any certificate or other
writing delivered by Parent pursuant hereto (which
representations and warranties shall, for purposes of this
Section 9.03(a) only, be read without any qualification
contained therein as to materiality or Parent Material Adverse
Effect) shall be true at and as of the Effective Time as if made
at and as of such time (except to the extent that any such
representation and warranty expressly speaks as of an earlier
date, in which case such representation and warranty (as so
read) shall be true as of such earlier date), except where the
failure of such representations and warranties to be true and
correct, in the aggregate, has not had and would not reasonably
be expected to have a Parent Material Adverse Effect and
(iv) the Company shall have received a certificate signed
by an executive officer of Parent to the foregoing effect;
(b) each of the Escrow Agreement and the Registration
Rights Agreement shall have been executed and delivered by
Parent, and the Rights Agreement shall have been amended, and
each of the foregoing shall be in full force and effect;
(c) neither Parent nor any of its Subsidiaries shall have
suffered a mining catastrophe that has involved, or would be
reasonably likely to involve, a loss of lives; and
(d) the Company shall have received all documents it may
reasonably request relating to the existence of Parent and
Merger Subsidiary and the authority of Parent and Merger
Subsidiary for this Agreement, all in form and substance
reasonably acceptable to the Company.
ARTICLE 10
Termination
Section 10.01. Termination. This
Agreement may be terminated and the Merger may be abandoned at
any time prior to the Effective Time (notwithstanding any
approval of this Agreement by the stockholders of Parent, except
as provided in Section 10.01(d)(i)):
(a) by mutual written agreement of the Company and Parent;
(i) the Merger has not been consummated on or before
September 30, 2008 (the “End Date”);
provided that the right to terminate this Agreement
pursuant to this Section 10.01(b)(i) shall not be available
to any party whose breach of any provision of this Agreement
results in the failure of the Merger to be consummated by such
time;
(ii) there shall be any Applicable Law that (A) makes
consummation of the Merger illegal or otherwise prohibited or
(B) enjoins the Company or Parent from consummating the
Merger and such enjoinment shall have become final and
nonappealable; or
(iii) the Parent Stockholder Meeting shall have been
convened and the Parent Stockholder Approval shall not (taking
into account any proper adjournment or postponement of the
Parent Stockholder Meeting) have been obtained; or
(c) by Parent, if:
(i) a breach of any representation or warranty or failure
to perform any covenant or agreement on the part of the Company
set forth in this Agreement shall have occurred that would cause
one or
more of the conditions set forth in Section 9.02(a) not to
be satisfied, and either (A) the Company is not using
commercially reasonable efforts to cure such breach or failure
or (B) such condition would not reasonably be expected to
be satisfied by the End Date; or
(ii) the Company shall have delivered a notice to Parent
pursuant to Section 8.05(b); or
(i) the Board of Directors of Parent fails to make,
withdraws, or modifies in a manner adverse to the Company, the
Parent Recommendation (if permitted in accordance with the third
sentence of Section 8.09(e)); provided that the
Company shall not be permitted to terminate this Agreement
pursuant to this Section 10.01(d)(i) after the Parent
Stockholder Approval is obtained;
(ii) a breach of any representation or warranty or failure
to perform any covenant or agreement on the part of the Parent
or Merger Subsidiary set forth in this Agreement shall have
occurred that would cause one or more of the conditions set
forth in Section 9.03(a) not to be satisfied, and either
(A) Parent is not using commercially reasonable efforts to
cure such breach or failure or (B) such condition would not
reasonably be expected to be satisfied by the End Date;
(iii) Parent shall enter into any agreement with respect to
(A) a merger, consolidation, share exchange, business
combination, reorganization, recapitalization, sale of all or
substantially all of its assets or other similar transaction
that, in any such case, requires the approval of the
stockholders of Parent under Delaware Law or (B) a
transaction involving the issuance of 20% or more of its stock,
and, in either such case, the record date for the stockholder
vote to approve such transaction shall occur prior to the
Closing Date;
(iv) Parent shall have delivered a notice to the Company
pursuant to Section 8.05(c); or
(e) by the Company prior to obtaining the Company
Stockholder Approval if, in accordance with Section 6.03(c)
the Company shall have concurrently entered into a definitive
agreement with respect to a Superior Proposal.
The party desiring to terminate this Agreement pursuant to this
Section 10.01 (other than pursuant to
Section 10.01(a)) shall give notice of such termination to
the other party.
Section 10.02. Effect
of Termination.
(a) Except as set forth below, if this Agreement is
terminated pursuant to Section 10.01, this Agreement shall
become void and of no effect without liability of any party (or
any stockholder, director, officer, employee, agent, consultant
or representative of such party) to the other party hereto;
provided that, if such termination shall result from the
willful (i) failure of either party to fulfill a condition
to the performance of the obligations of the other party or
(ii) failure of either party to perform a covenant hereof,
such party shall be fully liable for any and all liabilities and
damages incurred or suffered by the other party as a result of
such failure. The parties further agree that if (and only if)
the Company establishes pursuant to a final, non-appealable
judgment of the courts referred to in Section 12.07 that
the termination of this Agreement resulted from the willful
breach by Parent of its obligations hereunder, then (and only
then) the Stockholders will be deemed to be third party
beneficiaries of this Agreement in accordance with
Section 12.05(a) and may pursue claims for damages suffered
by such stockholders in their capacities as such as a result of
such willful breach (but without duplication of any damages
suffered by the Company, it being agreed and understood that in
any such action contemplated by this sentence, the court may,
among other things, consider whether such damages suffered by
such Stockholders should include the benefit of the bargain of
the Merger to the Stockholders (and in that regard, it is
expressly acknowledged and agreed that the Company shall be
permitted to bring such a claim on behalf of the Stockholders as
set forth in the following proviso)); provided that any
claim brought by the Stockholders pursuant to such third party
beneficiary right may only be brought by the Company on behalf
of such Stockholders. The provisions of this Section 10.02
and Sections 8.06, 12.03, 12.06, 12.07, 12.08 and 12.13
shall survive any termination hereof pursuant to
Section 10.01.
(b) Notwithstanding the foregoing, in the event this
Agreement is terminated (i) in accordance with
Section 10.01(d)(i) or Section 10.01(b)(iii) (unless,
in either case, at the time of termination one or more of the
conditions set forth in Sections 9.01(b), 9.01(c) or 9.02
had not been satisfied and was not capable of being satisfied
reasonably promptly) or (ii) in accordance with
Section 10.01(b)(i), and in the case of this clause (ii),
at the time of termination (A) the condition set forth in
Section 9.02(k) shall not have been satisfied solely as a
result of a potential claim of default under the Parent Credit
Agreement relating to the terms of the Parent Financing and
(B) all other conditions to Closing have been satisfied (or
are immediately capable of being satisfied) or waived, then, in
the case of clause (i) or (ii), as applicable, Parent shall
reimburse the Company (on demand) for all costs and expenses of
the Company incurred since January 1, 2008 in connection
with the preparation and negotiation of this Agreement, the
other Transaction Documents, the Merger and the other
transactions contemplated hereby and thereby, including, without
limitation, all fees and expenses of the Company’s counsel
(including specialist and local counsel), financial advisors,
auditors, other consultants (including but not limited to Weir
Mining Consultants Inc.) and agents and other lenders under the
Company’s and the Subsidiaries’ lending facilities;
provided that, in no event shall the amount Parent is
required to reimburse pursuant to this sentence exceed
$5,000,000; provided, further that if this
Agreement is terminated pursuant to Section 10.01(d)(i),
Section 10.01(b)(i) or Section 10.01(b)(iii), and the
expense reimbursement provided for in this sentence is payable,
then such expense reimbursement shall be the sole and exclusive
remedy of the Company and its Stockholders and Parent shall not
be liable for any other Damages incurred or suffered by the
Company or its Stockholders and the second sentence of this
Section 10.02 shall be inapplicable. The parties
acknowledge and agree that the above expense reimbursement
provisions are (i) an integral part of the transactions
contemplated hereby and constitute liquidated damages and not a
penalty in the event of the circumstances giving rise to the
applicability thereof and (ii) essential to the overall
transaction contemplated hereby and the Company has relied, and
is relying, on Parent’s agreement to pay such expenses as
and when due hereunder.
Section 11.01. Survival. The
representations and warranties of the parties hereto contained
in this Agreement or in any certificate or other writing
delivered pursuant hereto or in connection herewith shall
survive the Effective Time until the Business Day after the
first anniversary of the Closing Date; provided that
(a) the Company Core Representations (other than the
representations and warranties contained in Sections 4.02,
4.05, 4.20 or 4.26) and the Parent Core Representations (other
than the representations and warranties contained in
Sections 5.02, 5.05 or 5.20) shall survive until the
Business Day after the third anniversary of the Closing Date and
(b) the representations and warranties in
Sections 4.02, 4.05, 4.20, 4.26, 5.02, 5.05 and 5.20 shall
survive until the latest date permitted by law. The covenants
and agreements of the parties hereto contained in this Agreement
or in any certificate or other writing delivered pursuant hereto
or in connection herewith shall survive the Closing until the
earlier of full performance thereof or the shorter period
explicitly specified therein, except that breaches of covenants
and agreements shall survive until the latest date permitted by
law. Notwithstanding the preceding sentences, any breach of
representation, warranty, covenant or agreement in respect of
which indemnity may be sought under this Agreement shall survive
the time at which it would otherwise terminate pursuant to the
preceding sentences, if notice of the inaccuracy or breach
thereof giving rise to such right of indemnity shall have been
given to Parent (if the indemnity is sought against Parent) or
the Stockholder Representative (if the indemnity is sought
against the Stockholders), as applicable, prior to such time.
Section 11.02. Indemnification.
(a) Subject to the last sentence of this
Section 11.02(a) and to Sections 11.02(b) and
11.02(c), from and after the Effective Time, the Designated
Stockholders hereby severally (based on each Designated
Stockholder’s Pro Rata Share of any applicable Damages) but
not jointly indemnify Parent and its Affiliates (including, from
and after the Effective Time, the Company and its Subsidiaries)
and their respective successors and assigns (collectively, the
“Parent Indemnified Parties”) against, and
agree to hold each of
them harmless from, any and all Damages incurred or suffered by
Parent, any Affiliate of Parent, the Company or any of its
Subsidiaries arising out of any (i) misrepresentation or
breach of warranty or alleged misrepresentation or breach of
warranty made by the Company pursuant to any Transaction
Document (a “Company Warranty Breach”),
(ii) breach of covenant or agreement made or to be
performed by the Company pursuant to any Transaction Document on
or before the Effective Time (a “Company Covenant
Breach”), (iii) any demand for appraisal by a
holder of shares of capital stock of the Company in connection
with the Merger, (iv) any claim, suit, action or proceeding
by (A) any holder of shares of capital stock of the Company
(including any suit on behalf of or in the name of the Company)
in their capacity as such, in connection with the Merger or the
other transactions contemplated by this Agreement or relating to
its ownership of shares of capital stock or the issuance of the
Company Convertible Debt or (B) any holder of Company
Convertible Debt under or relating to such Company Convertible
Debt except any claim by any such holder of Company Convertible
Debt Notes to enforce the rights described in Section 7 of
the Company Convertible Debt NPA or (v) any Transaction
Expenses that are in excess of the Transaction Expenses Cap
(without duplication for Transaction Expenses that are included
in the Excess Transaction Expenses Deduction Amount and are
therefore taken into account in the calculation of the Net Per
Share Number), in each case regardless of whether such Damages
arise as a result of the negligence, strict liability or any
other liability under any theory of law or equity of, or
violation of any law by, any party hereto or any of its
Affiliates (including the Company and its Subsidiaries);
provided that with respect to indemnification by the
Designated Stockholders for any Company Warranty Breach (other
than a misrepresentation or breach of warranty of any of the
Company Core Representations and other than in cases of fraud or
willful misrepresentation) pursuant to this Section,
(x) the Designated Stockholders shall not be liable for any
claim for indemnification where the amount of Damages with
respect to such claim (provided that all claims based on
substantially the same or similar acts, omissions or
circumstances shall be considered part of a single claim for
purposes of calculating the amount of Damages for purposes of
this clause (x)) does not exceed $100,000 (the
“De minimis Amount”) (and the amount of
such Damages shall not be aggregated for purposes of clause
(y)), (y) the Designated Stockholders shall not be liable
unless the aggregate amount of Damages with respect to all such
Company Warranty Breaches exceeds $6,000,000 (the
“Deductible Amount”) (in which case the
Designated Stockholders shall be liable only for an amount equal
to the excess of such Damages above such amount) and
(z) the Designated Stockholders’ maximum liability
shall not exceed the Escrow Property held in the Escrow Account.
The Designated Stockholders hereby agree that they will not be
entitled to seek contribution from the Company, its Subsidiaries
or any of their respective officers, directors or employees in
respect of any liability of the Designated Stockholders under
this Section 11.02(a).
(b) Parent hereby agrees that after Closing its sole and
exclusive remedy with respect to any and all claims arising out
of (i) any Company Warranty Breach (other than any
misrepresentation or breach of warranty of any of the Company
Core Representations and other than in cases of fraud or willful
misrepresentation) or (ii) a Company Covenant Breach (other
than a willful breach) (the claims referred to in
clauses (i) and (ii) are hereinafter referred to as
the “Escrow Only Claims”) shall be pursuant to
a claim for indemnification against the then-available Escrow
Property in accordance with this Section 11.02 and the
Escrow Agreement.
(c) With respect to all claims for indemnification other
than the Escrow Only Claims (“Direct Indemnification
Claims”), the Parent Indemnified Parties may make a
claim (i) against the then available Escrow Property in
accordance with this Section 11.02 and the Escrow
Agreement, (ii) against the Designated Stockholders
directly (severally, based on each Designated Stockholder’s
Pro Rata Share of any applicable Damages, and not jointly) or
(iii) a combination of the foregoing; provided that
(A) the aggregate maximum liability of the Designated
Stockholders in respect of all Direct Indemnification Claims
shall not exceed the proceeds (net of any reasonable brokerage
commissions and any underwriting fees) received by the
Designated Stockholders in the Merger (for the avoidance of
doubt, the maximum aggregate liability of each Designated
Stockholder in respect of all Direct Indemnification Claims
shall not exceed the proceeds (net of any reasonable brokerage
commissions and any underwriting fees) received by such
Designated Stockholder in the Merger) and (B) except with
respect to claims for misrepresentation or breach of warranty
under Sections 4.02, 4.05, 4.20 or 4.26 and claims for
indemnification under Section 11.02(a)(iv), the Parent
Indemnified Parties shall not be entitled to make a Direct
Indemnification Claim after the third anniversary of
the Closing (it being understood and agreed that following the
expiration of such time limit the Parent Indemnified Parties may
continue to pursue any claim that was subject to such time limit
so long as such claim was made prior to the expiration of such
time limit). Any amounts finally determined to be due and
payable by a Designated Stockholder hereunder in respect of any
Direct Indemnification Claim (or other claim made directly
against a Designated Stockholder), in each case, to the extent
permitted hereunder, may be satisfied by such Designated
Stockholder by payment in cash, delivery of shares of Parent
Stock (valued in accordance with the definition of “Market
Value” hereunder) or in any combination thereof, at the
election of the Designated Stockholder so satisfying such Direct
Indemnification Claim or other claim; provided that any
election to pay in whole or in part in shares of Parent Stock
must be made prior to the commencement of the 10 consecutive
trading day period referred to in the definition of “Market
Value”.
(d) Subject to Sections 11.02(e) and
Section 11.02(f), from and after the Effective Time, Parent
hereby indemnifies each Stockholder (in its capacity as such)
and its Affiliates (“Stockholder Indemnified
Parties”) against, and agrees to hold each of them
harmless from, any and all Damages incurred or suffered by the
Company or such Stockholder or any of its Affiliates arising out
of any (A) misrepresentation or breach of warranty or
alleged misrepresentation or breach of warranty made by Parent
or Merger Subsidiary pursuant to any Transaction Document (a
“Parent Warranty Breach”) or (B) breach of
covenant or agreement made or to be performed by Parent or
Merger Subsidiary pursuant to any Transaction Document (a
“Parent Covenant Breach”), in each case
regardless of whether such Damages arise as a result of the
negligence, strict liability or any other liability under any
theory of law or equity of, or violation of any law by, any
party hereto or any Stockholder or any of its Affiliates;
provided that with respect to indemnification by Parent
for any Parent Warranty Breach (other than a misrepresentation
or breach of warranty of any of the Parent Core Representations
and other than in cases of fraud or willful misrepresentation)
pursuant to this Section, (x) Parent shall not be liable
for any claim for indemnification where the amount of Damages
with respect to such claim (provided that all claims based on
substantially the same or similar acts, omissions or
circumstances shall be considered part of a single claim for
purposes of calculating the amount of Damages for purposes of
this clause (x)) does not exceed the De minimis Amount (and
the amount of such Damages shall not be aggregated for purposes
of clause (y)), (y) Parent shall not be liable unless the
aggregate amount of Damages with respect to such Parent Warranty
Breaches exceeds the Deductible Amount (in which case Parent
shall be liable only for an amount equal to the excess of such
Damages above such amount), and (z) Parent’s maximum
liability shall not exceed $54,000,000 (the “Parent
Cap”). In consideration for the indemnification rights
provided in this Section 11.02(d), each Stockholder hereby
waives, to the fullest extent permitted by law, any claim under
any Applicable Law relating to the sale or distribution of
securities that it might otherwise have by virtue of the
transactions contemplated hereby (and in the event any such
claim under Applicable Law is brought by a Stockholder, such
Stockholder hereby waives the indemnification rights provided in
this Section 11.02(d) and shall promptly refund to Parent
the amount of any Damages previously paid by Parent to such
Stockholder in respect of any indemnification claim hereunder).
The parties further agree that if (and only if) the Stockholder
Representative establishes pursuant to a final, non-appealable
judgment of the courts referred to in Section 12.07 that
Parent has breached this Agreement in a manner giving rise to a
right of indemnification hereunder, then (and only then) the
Stockholder Indemnified Parties will be deemed to be third party
beneficiaries of this Agreement for purposes of this
Section 11.02(d); provided that any claim brought by
a Stockholder Indemnified Party pursuant to such third party
beneficiary right may only be brought by the Stockholder
Representative on behalf of such Stockholder Indemnified Party.
(e) After Closing, the sole and exclusive remedy of the
Stockholder Indemnified Parties with respect to any and all
claims arising out of (i) any Parent Warranty Breach (other
than any misrepresentation or breach of warranty of any of the
Parent Core Representations and other than in cases of fraud or
willful misrepresentation) or (ii) a Parent Covenant Breach
(other than a willful breach) (the claims referred to in
clauses (i) and (ii) are hereinafter referred to as
the “Parent Non-Core Claims”; and all other
claims for indemnification under Section 11.02(d) are
hereinafter referred to “Parent Core Claims”)
shall be pursuant to a claim for indemnification against Parent
in accordance with and subject to this Section 11.02.
(f) Except with respect to indemnification claims for
misrepresentation or breach of warranty under Section 5.02,
5.05 or 5.20, the Stockholder Indemnified Parties shall not be
entitled to make a Parent Core
Claim after the third anniversary of the Closing (it being
understood and agreed that following the expiration of such time
limit the Stockholder Indemnified Parties may continue to pursue
any claim that was subject to such time limit so long as such
claim was made prior to the expiration of such time limit). The
aggregate maximum liability of Parent in respect of all Parent
Core Claims shall not exceed $534,000,000.
(g) Amounts finally determined to be due and payable under
this Section 11.02 in respect of any Damages that are
subject to the indemnification obligations will be payable
within five days of receipt of written notice to the
Indemnifying Party (or the Stockholder Representative, in the
case of an indemnification claim pursuant to
Section 11.02(a)) of such Damages, and will bear interest
beginning on the sixth day after receipt of such notice through
the date of payment at a rate per annum equal to the Prime Rate
as published in the Wall Street Journal, Eastern Edition
in effect from time to time during such period plus 2%.
(h) After Closing, each Indemnified Party will take all
reasonable efforts to mitigate any Damages upon becoming aware
of any event that would reasonably be expected to give rise
thereto (provided that the costs and expenses of such mitigation
shall be included as Damages arising from such event) and
Damages incurred in violation thereof shall not be recoverable
hereunder by the relevant Indemnified Party.
(i) The amount of Damages incurred by an Indemnified Party
will be reduced by the amount recovered from any third party
(after deducting attorneys’ fees, expenses and other costs
of recoveries and any increase in insurance premiums), including
from insurance policies and pursuant to other indemnification
agreements.
(j) The amount of any Damages for which indemnification is
provided under this Article 11 shall be decreased to take
into account any net Tax benefit received by the applicable
Indemnified Party.
(k) No Indemnified Party shall be entitled to recover
Damages or otherwise be indemnified hereunder (or receive other
payment, reimbursement or restitution) more than once in respect
of any one given liability, loss, cost or shortfall, regardless
of whether more than one claim for Damages arises in respect
of it.
(l) Notwithstanding anything to the contrary herein, if
Parent waives the condition set forth in
Section 9.02(a)(iv) as set forth in Section 8.05(b),
then Parent will be deemed to have waived its rights to
indemnification to the extent set forth in Section 8.05(b).
(m) Notwithstanding anything to the contrary herein, if the
Company waives the condition set forth in
Section 9.03(a)(iii) as set forth in Section 8.05(c),
then the Company and the Stockholders will be deemed to have
waived their rights to indemnification to the extent set forth
in Section 8.05(c).
Section 11.03. Procedures.
(a) The party seeking indemnification under this
Article 11 (the “Indemnified Party”)
agrees to give prompt notice (but no later than ten Business
Days after receipt by an Indemnified Party of a notification of
such Third Party claim) to the party against whom indemnity is
sought (or the Stockholder Representative, in the case of an
indemnification claim pursuant to Section 11.02(a)) (the
“Indemnifying Party”) of the assertion of any
Third Party claim against the Indemnified Party, or the
commencement of any Third Party suit, action or proceeding
against the Indemnified Party in respect of which indemnity may
be sought under such Article. The failure to so notify the
Indemnifying Party shall not relieve the Indemnifying Party of
its obligations hereunder, except to the extent such failure
shall have materially and adversely prejudiced the Indemnifying
Party. Thereafter, the Indemnified Party shall deliver to the
Indemnifying Party, as promptly as reasonably practicable
following the Indemnified Party’s receipt thereof, copies
of all written notices and documents (including any court
papers) received by the Indemnified Party relating to the Third
Party claim. The Indemnifying Party shall be entitled to
participate in the defense thereof and, if it so chooses within
10 Business Days of receipt of notice from the Indemnified Party
(or such lesser number of days set forth in the notice as may be
required by court proceeding in the event of a litigated
matter), to, subject to Section 11.03(b), assume the
defense thereof with counsel selected by the Indemnifying Party
and reasonably acceptable to the Indemnified Party;
provided, however, that the Indemnifying Party
shall not be entitled to assume or maintain control of the
defense of any Third Party claim and shall pay the fees and
expenses of counsel retained by the Indemnified Party if
(i) the Third Party claim relates to or arises in
connection with any criminal proceeding, action, indictment,
allegation or investigation, (ii) the Third Party claim
seeks
injunctive or equitable relief against the Indemnified Party,
(iii) the Indemnifying Party has failed to defend or is
failing to defend in good faith the Third Party claim,
(iv) the Indemnifying Party and the Indemnified Party are
both named parties to the proceedings and the Indemnified Party
shall have reasonably concluded that representation of both
parties by the same counsel would be inappropriate due to actual
or potential differing interests between them, (v) in the
case of a Parent Indemnified Party as the Indemnified Party, it
would reasonably be expected that the Damages arising from such
Third Party claim will exceed 110% of the Escrow Availability
Amount at such time or (vi) in the case of a Stockholder
Indemnified Party as the Indemnified Party, it would reasonably
be expected that the Damages arising from such Third Party claim
will exceed 110% of the Non-Core Cap Availability Amount at such
time and Parent does not waive the limitations in
Section 11.03(b) with respect to such claim;
provided,further, that prior to assuming control
of any such defense, the Indemnifying Party must acknowledge
that, subject to Section 11.03(b), it has an indemnity
obligation for all Damages resulting from such Third Party claim
notwithstanding anything in Section 11.02 to the contrary.
As used herein, the term “Escrow Availability
Amount” means, with respect to any given claim at any
given time, the amount then remaining in the Escrow Account at
such time after deducting the aggregate amount of all Damages
that would reasonably be expected to arise from other then
pending claims against the Escrow Account. As used herein, the
term “Non-Core Cap Availability Amount” means,
with respect to any given claim at any given time, the excess of
the Parent Cap over the sum of (A) the aggregate amount of
Damages previously paid by Parent at such time in respect of
claims subject to the Parent Cap and (B) the aggregate
amount of all Damages that would reasonably be expected to arise
from other then pending claims against Parent that are subject
to the Parent Cap. If the Indemnifying Party assumes such
defense, the Indemnified Party shall nonetheless have the right
to participate at its own expense in the defense thereof and to
employ counsel separate from the counsel employed by the
Indemnifying Party, it being understood that the Indemnifying
Party shall control such defense. If the Indemnifying Party
chooses to defend a Third Party claim, all Indemnified Parties
shall provide reasonable cooperation in the defense thereof. The
Indemnifying Party shall not be liable under this
Article 11 for any settlement, admission of liability,
compromise or other discharge of liability, effected without its
consent of any claim, litigation or proceeding in respect of
which indemnity may be sought hereunder, which consent shall not
be unreasonably withheld. The Indemnifying Party shall not,
without the prior written consent of the Indemnified Party,
settle, compromise or offer to settle or compromise any Third
Party claim unless (i) such settlement or compromise shall
include as an unconditional term thereof the giving by the
claimant of a release of the Indemnified Party, reasonably
satisfactory to the Indemnified Party, from all liability with
respect to such Third Party claim and (ii) such settlement
or compromise would not result in (A) the imposition of a
consent order, injunction, decree or obligation that would
restrict the future activity or conduct of the Indemnified Party
or any of its Affiliates, (B) a finding or admission of a
violation of law or violation of the rights of any Person by the
Indemnified Party or any of its Affiliates, (C) a finding
or admission that would have an adverse effect on other claims
made or threatened against the Indemnified Party or any of its
Affiliates, or (D) any monetary liability of the
Indemnified Party that will not be paid or reimbursed by the
Indemnifying Party concurrently with such settlement.
Notwithstanding the foregoing, no consent of the Stockholders or
the Stockholder Representative shall be required for the filing
of any Tax Return required to be filed by Parent or the Company
after the Effective Time, and no such consent shall be required
in connection with the conclusion of any tax audit or similar
proceeding after the Effective Time.
(b) If the Indemnifying Party assumes control of the
defense of a Third Party claim in respect of which (i) an
Escrow Only Claim has been made, the Indemnifying Party shall be
responsible for (A) 100% of the Damages arising therefrom
up to the Escrow Availability Amount at the time the
Indemnifying Party assumed the defense, (B) 50% of the
Damages arising therefrom to the extent such Damages exceed such
Escrow Availability Amount but do not exceed 200% of such Escrow
Availability Amount and (C) 100% of the Damages arising
therefrom to the extent such Damages exceed 200% of such Escrow
Availability Amount or (ii) a Parent Non-Core Claim has
been made, the Indemnifying Party shall be responsible for
(x) 100% of the Damages arising therefrom up to the
Non-Core Cap Availability Amount at the time the Indemnifying
Party assumed the defense, (B) 50% of the Damages arising
therefrom to the extent such Damages exceed such Non-Core Cap
Availability Amount but do not exceed 200% of such Non-Core Cap
Availability Amount and
(C) 100% of the Damages arising therefrom to the extent
such Damages exceed 200% of such Non-Core Cap Availability
Amount.
Section 11.04. Adjustment
to Consideration for Tax Purposes. Any amount
paid under Article 11 will be treated as an adjustment to
the Merger Consideration except to the extent a final
determination that is not subject to further appeal, review or
modification through proceedings or otherwise or Applicable Law
(including a revenue ruling or other similar pronouncement)
causes or requires any such amount not to constitute an
adjustment to the Merger Consideration for United States federal
income Tax purposes.
Section 11.05. Stockholder
Representative.
(a) Effective upon and by virtue of the consent of the
holders of the Company Stock approving and adopting this
Agreement and the Merger, and without any further act of any of
the holders of the Company Stock, the Stockholder Representative
shall be hereby appointed as the representative of the
Designated Stockholders and as the attorney-in-fact and agent
for and on behalf of each Designated Stockholder with respect to
any claims by any Indemnified Party pursuant to
Section 11.02(a) and any amendments to or waivers of the
Escrow Agreement or this Article 11; provided,
however, that any amendment or waiver of the Escrow
Agreement or this Article 11 that shall adversely affect
the rights or obligations of any Designated Stockholder under
the Escrow Agreement or this Article 11 shall require the
prior written consent of such adversely affected Designated
Stockholder (other than any change affecting all Designated
Stockholders similarly). The Stockholder Representative hereby
accepts such appointment. The Stockholder Representative will
take any and all actions and make any decisions required or
permitted to be taken by the Stockholder Representative under
the Escrow Agreement and this Agreement, including the exercise
of the power to (i) agree to, negotiate, enter into
settlements and compromises of, commence any suit, action or
proceeding, and comply with orders of courts with respect to,
claims for Damages, (ii) litigate, resolve, settle or
compromise any Contested Claim (as defined in the Escrow
Agreement) made pursuant to this Agreement, and (iii) take
all actions necessary in the judgment of the Stockholder
Representative for the accomplishment of the foregoing or as
contemplated by this Agreement or the Escrow Agreement. The
Stockholder Representative will have authority and power to act
on behalf of each Stockholder with respect to the disposition,
settlement or other handling of all claims against the Escrow
Property under this Article 11 and all related rights or
obligations of the Designated Stockholders arising under this
Article 11. The Stockholder Representative shall use
commercially reasonable efforts based on contact information
available to the Stockholder Representative to keep the
Designated Stockholders reasonably informed with respect to
actions of the Stockholder Representative pursuant to the
authority granted the Stockholder Representative under this
Agreement which actions have a material impact on the amounts
payable to the Designated Stockholders. Each Designated
Stockholder shall promptly provide written notice to the
Stockholder Representative of any change of address of such
Designated Stockholder.
(b) A decision, act, consent or instruction of the
Stockholder Representative (which decision, act, consent or
instruction shall be jointly made by each entity constituting
the Stockholder Representative) hereunder shall constitute a
decision, act, consent or instruction of all Designated
Stockholders and, as between Parent and its Affiliates (on the
one hand) and the Designated Stockholders (on the other hand),
shall be final, binding and conclusive upon each of such
Designated Stockholders, and the Escrow Agent and Parent may
rely upon any such decision, act, consent or instruction of the
Stockholder Representative as being the decision, act, consent
or instruction of each and every such Designated Stockholder.
The Escrow Agent and Parent shall be relieved from any liability
to any Person for any acts done by them in accordance with such
decision, act, consent or instruction of the Stockholder
Representative.
(c) The Stockholder Representative will incur no liability
with respect to any action taken or suffered by any party in
reliance upon any notice, direction, instruction, consent,
statement or other document believed by such Stockholder
Representative to be genuine and to have been signed by the
proper person (and shall have no responsibility to determine the
authenticity thereof), nor for any other action or inaction,
except for gross negligence, bad faith or willful misconduct on
the part of the Stockholder Representative. In all questions
arising under this Agreement or the Escrow Agreement, the
Stockholder Representative may rely on the
advice of outside counsel, and the Stockholder Representative
will not be liable to anyone for anything done, omitted or
suffered in good faith by the Stockholder Representative based
on such advice.
(d) The Designated Stockholders shall severally (each based
on its Pro Rata Share) but not jointly indemnify the Stockholder
Representative and hold the Stockholder Representative harmless
against any loss, liability or expense incurred without gross
negligence, bad faith or willful misconduct, on the part of the
Stockholder Representative and arising out of or in connection
with the acceptance or administration of the Stockholder
Representative’s duties hereunder, including the reasonable
fees and expenses of any legal counsel retained by the
Stockholder Representative.
(e) At any time during the term of the Escrow Agreement, a
majority-in-interest
of Designated Stockholders may, by written consent, appoint a
new representative as the Stockholder Representative. Notice
together with a copy of the written consent appointing such new
representative and bearing the signatures of Designated
Stockholders of a
majority-in-interest
of those Designated Stockholders must be delivered to Parent and
the Escrow Agent not less than ten days prior to such
appointment. Such appointment will be effective upon the later
of the date indicated in the consent or ten days after such
notice is received by Parent and the Escrow Agent. For the
purposes of this Section 11.05, a
“majority-in-interest
of the Designated Stockholders” shall mean Designated
Stockholders representing in the aggregate over 50% of the
percentage interests in the Escrow Shares.
(f) In the event that the Stockholder Representative
becomes unable or unwilling to continue in his or its capacity
as Stockholder Representative, or if the Stockholder
Representative resigns as a Stockholder Representative, a
majority-in-interest
of the Designated Stockholders shall, by written consent,
appoint a new representative as the Stockholder Representative.
Notice and a copy of the written consent appointing such new
representative and bearing the signatures of the holders of a
majority-in-interest
of the Designated Stockholders must be delivered to Parent and
the Escrow Agent. Such appointment will be effective upon the
later of the date indicated in the consent or the date such
consent is received by Parent and the Escrow Agent.
(g) As amongst the Stockholders, and subject to
Section 11.05(b), any instruction given to the Stockholder
Representative by a
majority-in-interest
of Designated Stockholders, in connection with the matters set
forth in Article 11 or any other matter, shall be final and
binding on all Stockholders.
ARTICLE 12
Miscellaneous
Section 12.01. Notices. All
notices, requests and other communications to any party
hereunder shall be in writing (including facsimile transmission
and electronic mail
(“e-mail”)
transmission, so long as a receipt of such
e-mail is
requested and received) and shall be given,
ArcLight Energy Partners Fund I, L.P. and
ArcLight Energy Partners Fund II, L.P.
c/o ArcLight
Capital Partners LLC
200 Clarendon Street, 55th Floor Boston, MA02117
Attention: General Counsel
Facsimile No.:
(617) 867-4698
or to such other address or facsimile number as such party may
hereafter specify for the purpose by notice to the other parties
hereto. All such notices, requests and other communications
shall be deemed received on the date of receipt by the recipient
thereof if received prior to 5:00 p.m. on a Business Day in
the place of receipt. Otherwise, any such notice, request or
communication shall be deemed to have been received on the next
succeeding Business Day in the place of receipt.
Section 12.02. Amendments
and Waivers. (a) Any provision of this
Agreement may be amended or waived prior to the Effective Time
if, but only if, such amendment or waiver is in writing and is
signed, in the case of an amendment, by each party to this
Agreement or, in the case of a waiver, by each party against
whom the waiver is to be effective.
(b) No failure or delay by any party in exercising any
right, power or privilege hereunder shall operate as a waiver
thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. Except as expressly set
forth herein, the rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided
by Applicable Law.
Section 12.03. Expenses. Except
as otherwise provided herein, all costs and expenses incurred in
connection with this Agreement shall be paid by the party
incurring such cost or expense.
Section 12.04. Disclosure
Schedule References. The parties hereto
agree that any reference in a particular Section of either the
Company Disclosure Schedule or the Parent Disclosure Schedule
shall only be deemed to be an exception to (or, as applicable, a
disclosure for purposes of) (a) the representations and
warranties (or covenants, as applicable) of the relevant party
that are contained in the corresponding Section or subsection of
this Agreement; (b) any other representation and warranty
(or covenant, as applicable) of such party that is contained in
this Agreement, but only if the relevance of that reference as
an exception to (or a disclosure for purposes of) such
representation and warranty (or covenant, as applicable) would
be readily apparent to a reasonable person who has read only
this Agreement and the Company Disclosure Schedule and the
Parent Disclosure Schedule; and (c) any other
representation and warranty (or covenant, as applicable) of a
relevant party that is cross-referenced in such Section. Except
as the context requires, any items or matters reflected in
either the Company Disclosure Schedule or the Parent Disclosure
Schedule, as the case may be, are not necessarily limited to
matters required by this Agreement to be therein reflected, and
such items or matters are set forth for informational purposes
only and do not necessarily include items of a similar nature.
In no event shall the inclusion or reference of any such item or
matter be deemed or interpreted to broaden or otherwise modify
any of the provisions of this Agreement. The fact that any item
or matter is reflected in either the Company Disclosure Schedule
or the Parent Disclosure Schedule, as the case may be, shall not
be construed as an admission of liability under Applicable Law,
nor shall either the Company Disclosure Schedule or the Parent
Disclosure Schedule, as the case may be, be used as a basis for
interpreting the terms “material,”“materially,”“materiality” or “Company
Material Adverse Effect” or “Parent Material Adverse
Effect” (as the case may be), or similar qualifications
herein.
Section 12.05. Binding
Effect; Benefit; Assignment. (a) The
provisions of this Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective
successors and assigns. Except as provided in, and subject to,
Section 7.06, Section 10.02 and Article 11
(including the provisions that limit the circumstances in which
a non-party may make a claim), no provision of this Agreement is
intended to confer any rights, benefits, remedies, obligations
or liabilities hereunder upon any Person other than the parties
hereto and their respective successors and assigns. For the
avoidance of doubt, nothing in Section 7.04 is intended to
create any third party rights, benefits, remedies, obligations
or liabilities under any of the provisions referred to in the
preceding sentence.
(b) No party may assign, delegate or otherwise transfer any
of its rights or obligations under this Agreement without the
consent of each other party hereto, except that Parent or Merger
Subsidiary may transfer or assign its rights and obligations
under this Agreement, in whole or from time to time in part, to
(i) one or more of their Affiliates at any time and
(ii) after the Effective Time, to any Person; provided
that such transfer or assignment shall not relieve Parent or
Merger Subsidiary of its obligations hereunder or enlarge, alter
or change any obligation of any other party hereto or due to
Parent or Merger Subsidiary; provided further, that no
such assignment shall adversely affect the Company (prior to the
Effective Time) or the Stockholders.
Section 12.06. Governing
Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware,
without regard to the conflicts of law rules of such state.
Section 12.07. Jurisdiction. The
parties hereto agree that any suit, action or proceeding seeking
to enforce any provision of, or based on any matter arising out
of or in connection with, this Agreement or the transactions
contemplated hereby shall be brought in any Delaware state
court, and each of the parties hereby irrevocably consents to
the jurisdiction of such courts (and of the appropriate
appellate courts therefrom) in any such suit, action or
proceeding and irrevocably waives, to the fullest extent
permitted by Applicable Law, any objection that it may now or
hereafter have to the laying of the venue of any such suit,
action or proceeding in any such court or that any such suit,
action or proceeding brought in any such court has been brought
in an inconvenient forum. Process in any such suit, action or
proceeding may be served on any party anywhere in the world,
whether within or without the jurisdiction of any such court.
Without limiting the
foregoing, each party agrees that service of process on such
party as provided in Section 12.01 shall be deemed
effective service of process on such party.
Section 12.08. WAIVER
OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 12.09. Counterparts;
Effectiveness. This Agreement may be signed in
any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto
were upon the same instrument. This Agreement shall become
effective when each party hereto shall have received a
counterpart hereof signed by all of the other parties hereto.
Until and unless each party has received a counterpart hereof
signed by the other party hereto, this Agreement shall have no
effect and no party shall have any right or obligation hereunder
(whether by virtue of any other oral or written agreement or
other communication). Any such counterpart may be delivered by
facsimile or other electronic format (including
“.pdf”).
Section 12.10. Entire
Agreement. This Agreement, the other Transaction
Documents and, to the extent set forth in Section 8.06, the
Confidentiality Agreements constitute the entire agreement
between the parties with respect to the subject matter of this
Agreement and supersede all prior agreements and understandings,
both oral and written, between the parties with respect to the
subject matter of this Agreement and the other Transaction
Documents.
Section 12.11. Severability. If
any term, provision, covenant or restriction of this Agreement
is held by a court of competent jurisdiction or other
Governmental Authority 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 so long as
the economic or legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to any
party. Upon such a determination, the parties shall negotiate in
good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable
manner in order that the transactions contemplated hereby be
consummated as originally contemplated to the fullest extent
possible.
Section 12.12. Specific
Performance. The parties hereto agree that
irreparable damage would occur if any provision of this
Agreement were not performed in accordance with the terms hereof
and that the parties shall be entitled (without the requirement
to post bond) to an injunction or injunctions to prevent
breaches of this Agreement or to enforce specifically the
performance of the terms and provisions hereof in the courts
provided for in Section 12.07, in addition to any other
remedy to which they are entitled at law or in equity.
Section 12.13. Representation
of the Company and its Stockholders. Each of the
parties to this Agreement hereby agrees, on its own behalf and
on behalf of its directors, officers, employees and Affiliates,
that Freshfields Bruckhaus Deringer LLP may serve as counsel to
each and any of the Company’s stockholders, the Stockholder
Representative and their respective Affiliates (individually and
collectively, “Seller Group”), on the one hand,
and the Company, on the other hand, in connection with the
negotiation, preparation, execution and delivery of this
Agreement and the other Transaction Documents and the
consummation of the Merger and the other transactions
contemplated hereby and by the other Transaction Documents, and
that, both prior to and following consummation of the Merger (or
in the event of the termination of this Agreement), Freshfields
Bruckhaus Deringer LLP may serve as counsel to any member of the
Seller Group or any director, member, partner, officer, employee
or Affiliate of Seller Group, in connection with any litigation,
claim or obligation arising out of or relating to this Agreement
or the other Transaction Documents, or the Merger or the other
transactions contemplated hereby and by the other Transaction
Documents notwithstanding such representation, and each of the
parties hereto hereby consents thereto and waives any conflict
of interest arising therefrom, and each of such parties shall
cause any Affiliate thereof to consent to waive any conflict of
interest arising from such representation.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized
officers as of the day and year first above written.
VOTING AND STANDSTILL AGREEMENT, dated as of April 2, 2008
(this “Agreement”), among Patriot Coal
Corporation, a Delaware corporation (“Parent”),
the stockholders whose names appears on the signature page of
this Agreement (each, a “Stockholder” and
collectively, the “Stockholders”), and ArcLight
Energy Partners Fund I, L.P. and ArcLight Energy Partners
Fund II, L.P., acting jointly, as stockholder
representative (the “Stockholder
Representative”).
WITNESSETH:
WHEREAS, Magnum Coal Company, a Delaware corporation (the
“Company”), Parent, Colt Merger Corporation, a
Delaware corporation and wholly-owned subsidiary of Parent
(“Merger Subsidiary”) and the Stockholder
Representative, entered into an Agreement and Plan of Merger
(the “Merger Agreement”) dated as of
April 2, 2008, pursuant to which, among other things,
Merger Subsidiary will be merged with and into the Company at
the Effective Time (capitalized terms used in this Agreement but
not defined herein shall have the meanings ascribed to them in
the Merger Agreement);
WHEREAS, as of the Effective Time, each share of the common
stock, par value $0.01 per share, of the Company (the
“Company Stock”), held by the stockholders of
the Company immediately prior to the Effective Time will be
converted into the right to receive a number of shares of common
stock, par value $0.01 per share, of Parent (“Parent
Stock”), in accordance with Article 2 of the
Merger Agreement. The stockholders of the Company (including the
Stockholders) whose shares of Company Stock are converted into
the right to receive Parent Stock pursuant to Article 2 of
the Merger Agreement shall be referred to herein as the
“Company Holders”, and the shares of Parent
Stock payable as consideration pursuant to Article 2 of the
Merger Agreement (including the Escrow Shares) to such Company
Holders shall be referred to herein as “Parent
Shares”; and
WHEREAS, the Stockholders, the Stockholder Representative and
Parent desire to make certain agreements relating to
(i) the ownership and voting of Parent Shares held by such
Stockholders, (ii) the composition of Parent’s Board
of Directors (the “Board”) and
(iii) certain other matters.
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements and covenants set forth herein and in the
Merger Agreement, and intending to be legally bound hereby, the
parties hereto hereby agree as follows:
ARTICLE 1
Voting
Agreement; Standstill Restrictions
Section 1.01. Stockholder
Nominees to Parent Board.
(a) Subject to Section 1.02, effective as of the
Effective Time (or, if the Effective Time shall occur prior to
the date of Parent’s 2008 annual meeting of stockholders
(the “2008 Meeting”), promptly after the 2008
Meeting), the Board shall cause the number of authorized members
of the Board to be expanded by two members and shall appoint to
the Board two nominees designated in writing by the Stockholder
Representative, one of whom shall serve as a Class I
director on the Board and one of whom shall serve as a
Class II director on the Board. Subject to
Section 1.02, following such appointment, at any meeting of
the stockholders of Parent at which the Class I or
Class II directors of the Board are to be elected, Parent
will include in the slate of directors recommended for election
by the Board to the stockholders of Parent one nominee selected
by the Stockholder Representative to serve as a Class I
director or one nominee selected by the Stockholder
Representative to serve as a Class II director, as
applicable.
(b) Subject to Section 1.02, in the event of the
resignation, death, removal or disqualification of a director
nominated by the Stockholder Representative pursuant to
Section 1.01(a), the Stockholder Representative shall
promptly designate a replacement director.
(c) Any Board nominee selected by the Stockholder
Representative pursuant to Section 1.01(a) or
Section 1.01(b), and any replacement nominee or director
selected by the Stockholder Representative at any time, shall
(i) at the time of initial nomination and at each time he
or she would be nominated for re-election, be reasonably
acceptable to the Nominating and Governance Committee of the
Board, (ii) at all times be, to the reasonable satisfaction
of the Nominating and Governance Committee of the Board, an
“independent director” as such term is defined from
time to time in the New York Stock Exchange’s listing
standards (or the listing standards of the principal national
securities exchange on which Parent Stock is then traded),
disregarding the failure to satisfy the tests set forth in
Sections 303A.02(b)(ii) or 303A.02(b)(v) of the
New York Stock Exchange Listed Company Manual to the extent
such failure results solely from one or more of the
relationships set forth on Section 4.26 of the Company
Disclosure Schedule and (iii) agree to resign in the event
his or her term shall end as provided in Section 1.02(a) or
Section 1.02(b). Assuming the accuracy of the
representation and warranty of the ArcLight Funds in
Section 2.06, Parent acknowledges that (x) Robb E.
Turner and John Erhard shall be the nominees initially
designated for appointments in accordance with
Section 1.01(a) and that, as of the date hereof, such
individuals satisfy the requirements of clauses (i) and
(ii) of the immediately preceding sentence and (y) for
purposes of this Agreement, any individual who is an associate
(as such term is defined under
Rule 12b-2
under the 1934 Act) of ArcLight Energy Partners
Fund I, L.P. or ArcLight Energy Partners Fund II, L.P.
shall be deemed not to fail to satisfy the requirements of
clause (ii) of the immediately preceding sentence solely as
a result of ownership by any Person of Parent Shares or any of
the relationships set forth on Section 4.26 of the Company
Disclosure Schedule.
(d) A decision, act, consent or instruction of the
Stockholder Representative hereunder (including, without
limitation, any selection of a nominee to the Board pursuant to
Section 1.01(a) or Section 1.01(b)) shall constitute a
decision, act, consent or instruction of all Stockholders and
shall be final, binding and conclusive upon each of such
Stockholders, and Parent may rely upon any such decision, act,
consent or instruction of the Stockholder Representative as
being the decision, act, consent or instruction of each and
every such Stockholder. Parent shall be relieved from any
liability to any Person for any acts done by them in accordance
with such decision, act, consent or instruction of the
Stockholder Representative.
Section 1.02. Reduction
of Stockholder Board Designation Rights.
(a) At such time after the Effective Time that (i) the
aggregate number of Parent Shares owned by the Company Holders
is less than twenty percent (20%) of the Aggregate Share Number
but greater than or equal to ten percent (10%) of the Aggregate
Share Number or (ii) the aggregate number of Parent Shares
owned by the ArcLight Funds is less than ten percent (10%) of
the Aggregate Share Number, the Stockholder Representative shall
be entitled to nominate only one member of the Board and, unless
the Board (without the participation of the nominees of the
Stockholder Representative) shall approve such nominee remaining
on the Board, the Stockholder Representative shall cause one of
its nominees on the Board to resign effective immediately as of
such time and the term of such director shall immediately end.
(b) At such time after the Effective Time that the
aggregate number of Parent Shares owned by the Company Holders
is less than ten percent (10%) of the Aggregate Share Number,
the Stockholder Representative shall not be entitled to nominate
any members of the Board and, unless the Board (without the
participation of the nominee(s) of the Stockholder
Representative) shall approve such nominee(s) remaining on the
Board, the Stockholder Representative shall cause all of its
remaining nominee(s) on the Board to resign effective
immediately as of such time and the term of such director(s)
shall immediately end.
(c) For the avoidance of doubt, once the Company Holders
have lost the right to nominate one or both members of the
Board, they shall not thereafter regain such rights regardless
of any subsequent acquisitions of Parent Shares by Company
Holders or any change to the outstanding Parent Stock by Parent
that in either case results in Company Holders owning shares in
the amounts described in Section 1.02(a) or
Section 1.02(b).
(d) References in this Section 1.02 to the Aggregate
Share Number shall be appropriately adjusted for any change in
the outstanding shares of Parent Stock by reason of any
reclassification, recapitalization, stock split, combination,
exchange or readjustment of shares.
(e) For purposes of this Section 1.02, (i) no
Company Holder shall be deemed to own any Parent Shares that any
Company Holder has Transferred, (ii) any Company Holder
that is a Reduced Standstill Stockholder shall be deemed, at any
applicable time, to have Transferred and no longer own 30% of
the Parent Shares held by such Company Holder at such time,
(iii) any Company Holder that is a Limited Standstill
Stockholder shall be deemed, at any applicable time, to have
Transferred and no longer own 70% of the Parent Shares held by
such Company Holder at such time, and (iv) the Stockholder
set forth on Schedule 1.02(e) shall be deemed to have
Transferred and no longer own all Parent Shares held by such
Stockholder effective as of the Effective Time.
(f) Each Stockholder agrees to promptly notify Parent each
time such Stockholder Transfers any Parent Shares, which notice
shall set forth the number of Parent Shares so Transferred. On
request from time to time (but no more than once per fiscal
quarter), each Stockholder agrees to certify to Parent the
number of Parent Shares owned by such Stockholder and to provide
appropriate evidence of such ownership.
(g) As used in this Agreement, “Aggregate Share
Number” means the sum of (i) the aggregate number
of Parent Shares issued pursuant to Article 2 of the Merger
Agreement and (ii) the number of shares of Parent Stock
outstanding as of the date of the Merger Agreement.
(h) As used in this Agreement, (i) “ArcLight
I” means ArcLight Energy Partners Fund I, L.P.,
(ii) “ArcLight II” means ArcLight Energy
Partners Fund II, L.P. and (iii) “ArcLight
Funds” means ArcLight I and ArcLight II, together.
(i) As used in this Agreement, with respect to all
Stockholders other than Limited Standstill Stockholders,
“Transfer” shall mean, directly or indirectly,
to sell, transfer, assign, lend or similarly dispose of any
Parent Shares (other than a sale, transfer, assignment or
disposition solely between the ArcLight Funds), or to enter into
any contract, option or other arrangement or understanding with
respect to any such sale, transfer, assignment, lending or
similar disposition of any Parent Shares, and shall include
(i) a short sale or the entry into of any other hedging or
other derivative transaction that has the effect of materially
changing the economic benefits or risks of ownership of any
Parent Shares and (ii) except for purposes of
Section 3.01, any delivery of Escrow Shares to Parent or
any other Indemnified Party pursuant to the indemnification
obligations set forth in Article 11 of the Merger
Agreement; provided that a Transfer shall not include any
pledge or hypothecation of, or other similar encumbrance on, any
Parent Shares in connection with any bona fide lending
arrangement with a commercial banking institution; provided,
further, that such transaction shall be a Transfer subject
to the terms of Section 1.02, Section 1.05 and
Section 3.01 if such financial institution shall foreclose
on such Parent Shares pursuant to such arrangement.
(j) As used in this Agreement, with respect to the Limited
Standstill Stockholders, “Transfer” shall mean,
directly or indirectly, to sell, transfer, assign, lend or
similarly dispose of any Parent Shares (other than a sale,
transfer, assignment or disposition to an Affiliate of such
Limited Standstill Stockholder subject to such transferee
Affiliate agreeing to (i) be bound by the provisions of
this Agreement to the same extent as the Limited Standstill
Stockholder transferor and (ii) transfer such Parent Shares
to the Limited Standstill Stockholder transferor in the event
that such transferee is no longer an Affiliate of such Limited
Standstill Stockholder transferor), or to enter into any
contract, option or other arrangement or understanding with
respect to any such sale, transfer, assignment, lending or
similar disposition of any Parent Shares, and shall include
(A) a short sale or the entry into of any other hedging or
other derivative transaction that has the effect of materially
changing the economic benefits or risks of ownership of any
Parent Shares and (B) except for purposes of
Section 3.01, any delivery of Escrow Shares to Parent or
any other Indemnified Party pursuant to the indemnification
obligations set forth in Article 11 of the Merger
Agreement; provided that a Transfer shall not include
(x) any Permitted Short Sale or (y) any pledge or
hypothecation of, or other similar encumbrance on, any Parent
Shares in connection with any bona fide lending arrangement with
a commercial banking institution; provided, further, that
such transaction referred to in clause (y) shall be a
Transfer subject to the terms of Section 1.02,
Section 1.07 and Section 3.01 if such financial
institution shall foreclose on such
Parent Shares pursuant to such arrangement. As used herein,
“Permitted Short Sale” means a transaction of
the kind described in clause (A) of the preceding sentence
that is entered into by (i) a group or other division of
such Limited Standstill Stockholder (on the one hand) that is
separated by an internal information barrier or similar policy
of the Limited Standstill Stockholder (which barrier or policy
has been complied with insofar as it relates to the Parent
Shares) from (ii) the group or division (or groups or
divisions) within the Limited Standstill Stockholder that have
either participated in the negotiation and execution of this
Agreement on behalf of the Limited Standstill Stockholder or are
the group that is responsible for the ownership and disposition
of the Parent Shares acquired in the Merger by such Limited
Standstill Stockholder (on the other hand), and has so entered
into such a transaction in the ordinary course of business for a
purpose other than hedging the economic exposure of the Limited
Standstill Stockholder in respect of the Parent Shares acquired
in the Merger.
Section 1.03. Support
of Parent Board Nominees. Each Stockholder agrees
that so long as the Stockholder Representative is entitled to
nominate any members to the Board pursuant to this Agreement,
such Stockholder will vote, or execute written consents or
proxies with respect to, as the case may be, all of its shares
of Parent Stock in favor of the entire slate of directors
recommended for election by the Board to the stockholders of
Parent at any meeting of Parent stockholders at which any
directors are elected.
Section 1.04. Additional
Voting Obligations. Except as prohibited by
Applicable Law, each Stockholder (other than the Stockholders
set forth on Schedule 1.04 hereto) agrees that so long as
the Stockholder Representative is entitled to nominate any
members to the Board pursuant to this Agreement, such
Stockholder shall vote, or execute written consents or proxies
with respect to, as the case may be, all of its shares of Parent
Stock as recommended by the Board in the case of (a) any
stockholder proposal submitted for a vote at any meeting of
Parent’s stockholders and (b) any proposal submitted
by Parent for a vote at any meeting of Parent’s
stockholders relating (i) to the appointment of
Parent’s accountants or (ii) a Parent equity
compensation plan
and/or any
material revisions thereto.
Section 1.05. ArcLight
Funds Standstill.
(a) Each ArcLight Fund (each, an “ArcLight
Standstill Stockholder”) agrees that until the
termination of the Standstill Period, neither such ArcLight
Standstill Stockholder nor any of its Affiliates will, directly
or indirectly, unless invited to do so (on an unsolicited basis)
by the Board (excluding the vote of any members of the Board
appointed by the Stockholder Representative pursuant to this
Agreement) in writing: (i) acquire, offer or propose to
acquire, or agree or seek to acquire, by purchase or otherwise,
any securities or direct or indirect rights or options to
acquire any securities of Parent; (ii) enter into or agree,
offer, propose or seek to enter into, or otherwise be involved
in or part of, any acquisition transaction, merger or other
business combination relating to Parent or any acquisition
transaction for all or substantially all of the assets of Parent
or any of its businesses; (iii) make, or in any way
participate in, any “solicitation” of
“proxies” (as such terms are defined under
Regulation 14A under the 1934 Act) to vote, or seek to
advise or influence any Person with respect to the voting of,
any voting securities of Parent, (iv) except as
contemplated by Section 1.03 or Section 1.04, form,
join or in any way participate in a “group” (within
the meaning of Section 13(d)(3) of the 1934 Act) with
respect to any voting securities of Parent; (v) except as
contemplated by Section 1.01 and except pursuant to its
ability (subject to Section 1.03 and Section 1.04) to
vote shares of Parent Stock held by it, seek, propose or
otherwise act alone or in concert with others, to influence or
control the management, Board or policies of Parent;
(vi) enter into any discussions, negotiations, arrangements
or understandings with any other Person with respect to any of
the foregoing activities or propose any of such activities to
any other Person; (vii) advise, assist, knowingly
encourage, act as a financing source for or otherwise invest in
any other Person in connection with any of the foregoing
activities; or (viii) disclose any intention, plan or
arrangement inconsistent with any of the foregoing.
Notwithstanding the foregoing, nothing in this Section 1.05
shall prohibit the Transfer of Parent Shares from one ArcLight
Fund to the other ArcLight Fund. Each ArcLight Standstill
Stockholder agrees that it shall promptly advise Parent of any
inquiry or proposal made to such ArcLight Standstill Stockholder
with respect to any of the foregoing.
(b) Each ArcLight Standstill Stockholder agrees that,
during the Standstill Period, neither it nor any of its
Affiliates will, directly or indirectly: (i) request to
Parent or its Representatives to amend or waive any
provision of this Section 1.05 (including this sentence);
or (ii) take any initiative with respect to Parent which
would reasonably be expected to require Parent to make a public
announcement regarding (A) any of the activities referred
to in Section 1.05(a) or (B) the possibility of such
ArcLight Standstill Stockholder or any other Person acquiring
control of Parent, whether by means of a business combination or
otherwise.
(c) For purposes of Section 1.05 and
Section 1.06, “Parent” shall be deemed to include
Parent, any successor to or person in control of Parent, or any
division thereof or of any such successor or controlling person.
(d) Subject to Section 1.05(e), the restrictions set
forth in Sections 1.05(a) and 1.05(b) shall not prohibit
any ArcLight Standstill Stockholder from engaging in one or more
of the types of transactions referred to in
Sections 1.05(a) and 1.05(b) in the event that:
(i) Parent has entered into a definitive agreement with a
third party with respect to (A) a tender offer or exchange
offer for more than 50% of the outstanding Parent Stock,
(B) any other acquisition transaction, merger or other
business combination in which holders of Parent’s voting
stock before the transaction would not hold a majority of the
voting power of Parent’s (or if Parent is not the surviving
entity in such transaction, the surviving entity’s) voting
stock (or of the voting stock of an entity that directly or
indirectly holds a majority of the voting power of Parent’s
or such surviving entity’s voting stock) immediately after
such transaction or (C) any acquisition transaction for
more than 50% of the assets of Parent and its Subsidiaries,
taken as a whole (the transactions in clauses (A), (B) and
(C), each a “Business Combination
Transaction”); or (ii) a third party commences a
tender offer or exchange offer (which would, if completed in
accordance with its terms, result in a Business Combination
Transaction) and, in the case of this clause (ii), either the
Board of Directors of Parent has recommended such offer or not
rejected such offer within ten business days after the
announcement thereof.
(e) Notwithstanding anything to the contrary in this
Agreement, if (i) a Business Combination Transaction with
respect to which Parent has entered into a definitive agreement
is terminated without the closing thereunder being consummated
or (ii) a third party tender or exchange offer of the type
described in clause (ii) of Section 1.05(d) is
terminated without being consummated, then the provisions of
this Section 1.05 shall once again thereafter apply in
accordance with their terms and each ArcLight Standstill
Stockholder shall once again be subject to such provisions.
(f) As used in this Agreement, “Standstill
Period” means the period commencing at the Effective
Time and ending upon the later to occur of (i) the
Stockholder Representative no longer being entitled to nominate
any members of the Board pursuant to this Agreement or
(ii) nine months after such time as the ArcLight Standstill
Stockholders and their respective Affiliates, the Reduced
Standstill Stockholders and their respective Affiliates, and the
Limited Standstill Stockholders and their respective Affiliates
in the aggregate own less than 7.5% of the Parent Stock
outstanding at such time.
Section 1.06. Reduced
Stockholder Standstill.
(a) Each Stockholder identified on Schedule 1.06
hereto (each, a “Reduced Standstill
Stockholder”) agrees that until the termination of the
Standstill Period, neither such Reduced Standstill Stockholder
nor any of its controlled Affiliates will, directly or
indirectly, unless invited to do so (on an unsolicited basis) by
the Board (excluding the vote of any members of the Board
appointed by the Stockholder Representative pursuant to this
Agreement) in writing: (i) acquire, offer or propose to
acquire, or agree or seek to acquire, by purchase or otherwise,
any securities or direct or indirect rights or options to
acquire any securities of Parent; (ii) enter into or agree,
offer, propose or seek to enter into, or otherwise be involved
in or part of, any acquisition transaction, merger or other
business combination relating to Parent or any acquisition
transaction for all or substantially all of the assets of Parent
or any of its businesses; (iii) make, or in any way
participate in, any “solicitation” of
“proxies” (as such terms are defined under
Regulation 14A under the 1934 Act) to vote, or seek to
advise or influence any Person with respect to the voting of,
any voting securities of Parent, (iv) except as
contemplated by Section 1.03 or Section 1.04, form,
join or in any way participate in a “group” (within
the meaning of Section 13(d)(3) of the 1934 Act) with
respect to any voting securities of Parent; (v) except as
contemplated by Section 1.01 and except pursuant to its
ability (subject to Section 1.03 and Section 1.04) to
vote shares of Parent Stock held by it, seek, propose or
otherwise act alone or in concert with others, to influence or
control the management, Board or policies of Parent;
(vi) enter into any discussions,
negotiations, arrangements or understandings with any other
Person with respect to any of the foregoing activities or
propose any of such activities to any other Person;
(vii) advise, assist, knowingly encourage, act as a
financing source for or otherwise invest in any other Person in
connection with any of the foregoing activities; or
(viii) disclose any intention, plan or arrangement
inconsistent with any of the foregoing; provided, that
nothing herein shall prohibit a Reduced Standstill Stockholder
or any of its controlled Affiliates from (A) engaging in
any of the activities referred to in clause (i) hereof so
long as such activities are in the ordinary course of such
Reduced Standstill Stockholder’s or its controlled
Affiliate’s business and are not conducted for the purpose
of obtaining control of or influencing or controlling the
management, Board or policies of Parent or for the purpose of
avoiding the effect of the standstill provisions contained in
this Section 1.06 or (B) investing in or providing
financing to or otherwise holding an interest in any Person that
engages in any of the activities referred to in clauses (i)
through (viii) hereof, so long as such investment,
financing, or interest is made or obtained in the ordinary
course of such Reduced Standstill Stockholder’s or its
controlled Affiliate’s business (and not for the purpose of
avoiding the effect of the standstill provisions contained in
this Section 1.06), and such Person is not controlled by
such Reduced Standstill Stockholder.
(b) Each Reduced Standstill Stockholder agrees that, during
the Standstill Period, neither it nor any of its controlled
Affiliates will, directly or indirectly: (i) request to
Parent or its Representatives to amend or waive any provision of
this Section 1.06 (including this sentence); or
(ii) take any initiative with respect to Parent which would
reasonably be expected to require Parent to make a public
announcement regarding (A) any of the activities referred
to in Section 1.06(a) or (B) the possibility of such
Reduced Standstill Stockholder or any other Person (except as
provided in clause (B) of the proviso to
Section 1.06(a)) acquiring control of Parent, whether by
means of a business combination or otherwise.
(c) Subject to Section 1.06(d), the restrictions set
forth in Sections 1.06(a) and 1.06(b) shall not prohibit
any Reduced Standstill Stockholder from engaging in one or more
of the types of transactions referred to in
Sections 1.06(a) and 1.06(b) in the event that:
(i) Parent has entered into a definitive agreement with a
third party with respect to a Business Combination Transaction;
or (ii) a third party commences a tender offer or exchange
offer (which would, if completed in accordance with its terms,
result in a Business Combination Transaction) and, in the case
of this clause (ii), either the Board of Directors of Parent has
recommended such offer or not rejected such offer within ten
business days after the announcement thereof.
(d) Notwithstanding anything to the contrary in this
Agreement, if (i) a Business Combination Transaction with
respect to which Parent has entered into a definitive agreement
is terminated without the closing thereunder being consummated
or (ii) a third party tender or exchange offer of the type
described in clause (ii) of Section 1.06(c) is terminated
without being consummated, then the provisions of this
Section 1.06 shall once again thereafter apply in
accordance with their terms and each Reduced Standstill
Stockholder shall once again be subject to such provisions.
Section 1.07. Limited
Stockholder Standstill.
(a) Each Stockholder identified on Schedule 1.07
hereto (each, a “Limited Standstill
Stockholder”) agrees that until the termination of the
Standstill Period, neither such Limited Standstill Stockholder
nor any of its controlled Affiliates will, directly or
indirectly, unless invited to do so (on an unsolicited basis) by
the Board (excluding the vote of any members of the Board
appointed by the Stockholder Representative pursuant to this
Agreement) in writing: (i) acquire, offer or propose to
acquire, or agree or seek to acquire, by purchase or otherwise,
any securities or direct or indirect rights or options to
acquire any securities of Parent; (ii) enter into or agree,
offer, propose or seek to enter into, or otherwise be involved
in or part of, any acquisition transaction, merger or other
business combination relating to Parent or any acquisition
transaction for all or substantially all of the assets of Parent
or any of its businesses; (iii) make, or in any way
participate in, any “solicitation” of
“proxies” (as such terms are defined under
Regulation 14A under the 1934 Act) to vote, or seek to
advise or influence any Person with respect to the voting of,
any voting securities of Parent, (iv) except as
contemplated by Section 1.03 or Section 1.04, form,
join or in any way participate in a “group” (within
the meaning of Section 13(d)(3) of the 1934 Act) with
respect to any voting securities of Parent; (v) except as
contemplated by Section 1.01 and except pursuant to its
ability (subject to Section 1.03 and Section 1.04) to
vote shares of Parent Stock held by it, seek, propose or
otherwise act alone or in concert with
others, to influence or control the management, Board or
policies of Parent; (vi) enter into any discussions,
negotiations, arrangements or understandings with any other
Person with respect to any of the foregoing activities or
propose any of such activities to any other Person;
(vii) advise, assist, knowingly encourage, act as a
financing source for or otherwise invest in any other Person in
connection with any of the foregoing activities; or
(viii) disclose any intention, plan or arrangement
inconsistent with any of the foregoing; provided, that
nothing herein shall prohibit a Limited Standstill Stockholder
or any of its controlled Affiliates from (A) engaging in
any of the activities referred to in clauses (i), (iii), (iv),
(vi), (vii) and (viii) (except, in the case of clauses
(vi), (vii) and (viii), to the extent relating to
clauses (ii) or (v)) hereof so long as such activities are
in the ordinary course of such Limited Standstill
Stockholder’s or its controlled Affiliate’s business
and are not conducted for the purpose of obtaining control of or
influencing or controlling the management, Board or policies of
Parent or for the purpose of avoiding the effect of the
standstill provisions contained in this Section 1.07 or
(B) investing in or providing financing to or otherwise
holding an interest in any Person that engages in any of the
activities referred to in clauses (i) through
(viii) hereof, so long as such investment, financing, or
interest is made or obtained in the ordinary course of such
Limited Standstill Stockholder’s or its controlled
Affiliate’s business (and not for the purpose of avoiding
the effect of the standstill provisions contained in this
Section 1.07), and such Person is not controlled by such
Limited Standstill Stockholder.
(b) Each Limited Standstill Stockholder agrees that, during
the Standstill Period, neither it nor any of its controlled
Affiliates will, directly or indirectly: (i) request to
Parent or its Representatives to amend or waive any provision of
this Section 1.07 (including this sentence); or
(ii) take any initiative with respect to Parent which would
reasonably be expected to require Parent to make a public
announcement regarding (A) any of the activities referred
to in Section 1.07(a) or (B) the possibility of such
Limited Standstill Stockholder or any other Person (except as
provided in clause (B) of the proviso to
Section 1.07(a)) acquiring control of Parent, whether by
means of a business combination or otherwise.
(c) Subject to Section 1.07(d), the restrictions set
forth in Sections 1.07(a) and 1.07(b) shall not prohibit
any Limited Standstill Stockholder from engaging in one or more
of the types of transactions referred to in
Sections 1.07(a) and 1.07(b) in the event that:
(i) Parent has entered into a definitive agreement with a
third party with respect to a Business Combination Transaction;
or (ii) a third party commences a tender offer or exchange
offer (which would, if completed in accordance with its terms,
result in a Business Combination Transaction) and, in the case
of this clause (ii), either the Board of Directors of Parent has
recommended such offer or not rejected such offer within ten
business days after the announcement thereof.
(d) Notwithstanding anything to the contrary in this
Agreement, if (i) a Business Combination Transaction with
respect to which Parent has entered into a definitive agreement
is terminated without the closing thereunder being consummated
or (ii) a third party tender or exchange offer of the type
described in clause (ii) of Section 1.07(c) is
terminated without being consummated, then the provisions of
this Section 1.07 shall once again thereafter apply in
accordance with their terms and each Limited Standstill
Stockholder shall once again be subject to such provisions.
Section 1.08. Irrevocable
Proxy. Each Stockholder hereby revokes any and
all previous proxies granted with respect to its shares of
Parent Stock. By entering into this Agreement, each ArcLight
Fund hereby irrevocably grants a proxy appointing Parent as its
attorney-in-fact and proxy, with full power of substitution, for
and in such Stockholder’s name, to vote, express consent or
dissent, or otherwise to utilize such voting power in the manner
contemplated by Section 1.03 and Section 1.04 as
Parent or its proxy or substitute shall, in Parent’s sole
discretion, deem proper with respect to such ArcLight
Fund’s shares of Parent Stock. Each ArcLight Fund hereby
acknowledges and agrees that such proxy is coupled with an
interest, constitutes, among other things, an inducement for
Parent to enter into the Merger Agreement and this Agreement, is
irrevocable (other than as provided in Section 4.04) and
shall not be terminated by operation of law or otherwise upon
the occurrence of any event (other than as provided in
Section 4.04) and that no subsequent proxies with respect
to the shares of Parent Stock shall be given (and if given shall
not be effective). Each Stockholder shall cause all of its
shares of Parent Stock to be represented, in person or by proxy,
at all meetings of holders of Parent Stock of which such
Stockholder has notice, so that such shares of Parent Stock may
be counted for the purpose of determining the presence of a
quorum at such meetings.
Section 1.09. Stockholder
Only. Notwithstanding anything to the contrary
contained herein, Parent agrees and acknowledges that
(i) each Stockholder is entering into this Agreement in its
individual capacity and (ii) none of the covenants or other
agreements contained herein or provisions hereof shall in any
way bind any Affiliates of such Stockholder, except as
specifically provided herein. Parent agrees and acknowledges
that this Section 1.09 is an integral part of the
transactions contemplated hereby and the Stockholder would not
enter into this Agreement without this Section 1.09.
ARTICLE 2
Representations
and Warranties of the Stockholder
Each Stockholder (or, in the case of Section 2.06, each of
the ArcLight Funds) hereby represents, warrants and covenants to
Parent as follows as of the Effective Time:
Section 2.01. Organization;
Authorization. If such Stockholder is not a
natural person, such Stockholder is a Person that has been duly
organized, is validly existing and, to the extent applicable, is
in good standing under the laws of its jurisdiction of
organization. The execution, delivery and performance by such
Stockholder of this Agreement and the consummation by such
Stockholder of the transactions contemplated hereby are within
the corporate (or other entity) or individual powers of such
Stockholder and have been duly authorized by all necessary
corporate (or other entity) action. If this Agreement is being
executed in a representative or fiduciary capacity, the person
signing this Agreement has full power and authority to enter
into and perform this Agreement. This Agreement constitutes a
valid and binding Agreement of such Stockholder.
Section 2.02. No
Conflict; Required Filings and
Consents. (a) The execution and delivery of
this Agreement by such Stockholder does not, and the performance
of this Agreement by such Stockholder will not:
(i) conflict with or result in a breach of any
organizational documents of such Stockholder, (ii) conflict
with or violate any law, rule, regulation, order, judgment or
decree applicable to such Stockholder or by which it or any of
such Stockholder’s properties or assets is bound or
affected or (iii) require any consent or other action by
any Person under, result in any breach of, constitute a default
(or an event that with notice or lapse of time or both would
become a default) under, give to another party any rights of
termination, amendment, acceleration or cancellation of, or
result in the creation of a Lien on any of the property or
assets of such Stockholder, including (without limitation) the
Parent Shares, pursuant to, any note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which such Stockholder is a party or
by which such Stockholder or any of such Stockholder’s
properties or assets is bound or affected, with such exceptions,
in the case of each of clauses (ii) and (iii), as would
not, individually or in the aggregate, reasonably be expected to
prevent or materially delay or impair the performance by the
Stockholder of the Stockholder’s obligations under this
Agreement (a “Stockholder MAE”). There is no
beneficiary or holder of a voting trust certificate or other
interest of any trust of which such Stockholder is a trustee
whose consent is required for either the execution and delivery
of this Agreement or the consummation by such Stockholder of the
transactions contemplated by this Agreement.
(b) The execution and delivery of this Agreement by such
Stockholder does not, and the performance of this Agreement by
such Stockholder will not, require any consent, approval,
authorization or permit of, or filing with or notification to,
any Governmental Authority. Such Stockholder does not have any
other understanding in effect with respect to the voting or
transfer of any Parent Shares except for the Registration Rights
Agreement and the Escrow Agreement.
Section 2.03. Litigation. As
of the date hereof, there is no private or governmental action,
suit, proceeding, claim, arbitration or investigation pending
before any agency, court or tribunal (foreign or domestic) or,
to the knowledge of such Stockholder, threatened against such
Stockholder, any of its properties or, if such Stockholder is an
entity, any of its officers, directors, employees, partners or
trustees in their capacities as such, that, individually or in
the aggregate, would reasonably be expected to have a
Stockholder MAE. As of the Effective Time, there is no judgment,
decree or order against such Stockholder or, if such Stockholder
is an entity, any of its officers, directors, employees,
partners or trustees in their capacities as such, that would
prevent, enjoin, alter or materially delay any of the
transactions contemplated by this Agreement, or that would
reasonably be expected to have a Stockholder MAE.
Section 2.04. Title
to Shares. As of the Effective Time, such
Stockholder is the record and beneficial owner of the Parent
Shares it is entitled to receive pursuant to Article 2 of
the Merger Agreement in respect of the shares of Company Stock
set forth on Schedule 2.04(a) hereto and the shares of
Company Stock to be issued upon conversion of the Company
Convertible Debt Notes set forth on Schedule 2.04(a)
hereto, free and clear of any Lien and free of any other
limitation or restriction that would prevent such Stockholder
from satisfying its obligations pursuant to this Agreement. With
respect to Stockholders other than the ArcLight Funds, the
Parent Shares are the only shares of Parent Stock owned of
record or beneficially by such Stockholder or its controlled
Affiliates as of the Effective Time. With respect to the
ArcLight Funds, the Parent Shares are the only shares of Parent
Stock owned of record or beneficially by such Stockholder, and
any of its Affiliates as of the Effective Time. For the
avoidance of doubt, the representations and warranties of
Stockholders other than the ArcLight Funds in this
Section 2.04 relate solely to the direct ownership of such
Stockholder and its controlled Affiliates and such Stockholder
shall not, for the purposes of this Section 2.04, be deemed
the beneficial owner of any shares owned by any of its
Affiliates that are not controlled Affiliates. The parties
hereto agree that the representations made in this
Section 2.04 shall not apply to the Stockholders with
respect to the entities set forth on Schedule 2.04(b).
Section 2.05. No
Community Property Rights. If such Stockholder is
an individual and has a spouse, such Stockholder’s spouse
is not entitled to any rights under any community property
statute or other Applicable Law or agreement with respect to the
Parent Shares owned by such Stockholder which would adversely
affect the covenants made by such Stockholder pursuant to this
Agreement.
Section 2.06. Director
Nominee Disclosure. Each ArcLight Fund represents
and warrants that (i) the information supplied by Robb E.
Turner and John Erhard to Parent in the Director and Officer
Questionnaire completed by such individual is accurate and
complete, (ii) neither of such individuals, nor such
ArcLight Fund or any of its Affiliates has, or has had at any
time in the past three years, any relationship with Parent, the
Company or any of their respective Subsidiaries except
(A) as set forth in Section 4.26 of the Company
Disclosure Schedule and (B) relationships as directors and
holders of Company Stock and Company Convertible Debt Notes and
(iii) as of the Effective Time, neither of such individuals
will fail to be “independent” with respect to Parent
under Section 303A.02(b) of the New York Stock Exchange
Listed Company Manual (except to the extent that any such
individual fails to satisfy the tests set forth in
Sections 303A.02(b)(ii) or 303A.02(b)(v) of the New York
Stock Exchange Listed Company Manual as a result of the
relationships set forth on Section 4.26 of the Company
Disclosure Schedule).
ARTICLE 3
Additional
Covenants of the Parties
Section 3.01. Lock-Up.
(a) From the Effective Time until the date that is
180 days after the Effective Time (the “Initial
Lock-up
Date”), each Stockholder agrees that it shall not,
without Parent’s prior written consent (which consent shall
be determined by the Board in its sole discretion, excluding the
vote of any members of the Board appointed by the Stockholder
Representative pursuant to this Agreement), Transfer any Parent
Shares owned by it to any Person.
(b) From the Initial
Lock-up Date
until the date that is 270 days after the Effective Time
(the “Second
Lock-up
Date”), each Stockholder agrees that it shall not,
without Parent’s prior written consent (which consent shall
be determined by the Board in its sole discretion, excluding the
vote of any members of the Board appointed by the Stockholder
Representative pursuant to this Agreement), Transfer more than
50% of the Parent Shares owned by it as of the Effective Time to
any Person
(c) From the Second
Lock-up Date
until the date that is 360 days after the Effective Time,
each Stockholder agrees that it shall not, without Parent’s
prior written consent (which consent shall be determined by the
Board in its sole discretion, excluding the vote of any members
of the Board appointed by the Stockholder Representative
pursuant to this Agreement), Transfer any shares to any Person
to the extent that,
when aggregated with any Transfers by such Stockholder permitted
by Section 3.01(b), such Stockholder will have Transferred
more than 75% of the Parent Shares owned by it as of the
Effective Time.
(d) Notwithstanding clauses (a) through (c) of
this Section 3.01, in the event that the Board determines
to release any Stockholder from the provisions of this
Section 3.01, each other Stockholder shall automatically be
deemed released with respect to the same percentage of
securities as the percentage of securities then held by the
released Stockholder (and otherwise on the same terms and
conditions).
Section 3.02. Further
Assurances. Each of the parties hereto agrees to
execute and deliver, or cause to be executed and delivered, all
further documents and instruments and to take, or cause to be
taken, all actions and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and
regulations, to consummate and make effective the transactions
contemplated by this Agreement, including to vest in Parent the
power to carry out the provisions of Article 1 and this
Article 3.
ARTICLE 4
General
Provisions
Section 4.01. Notices. All
notices, requests and other communications to any party
hereunder shall be in writing (including facsimile transmission
but not electronic mail) and shall be given,
(a) if to Parent, to:
Patriot Coal Corporation
12312 Olive Boulevard, Suite 400 St. Louis, Missouri63141
Attention: Joseph W. Bean
Facsimile No.:
(314) 275-3656
with a copy to:
Davis Polk & Wardwell
450 Lexington Avenue New York, NY10017
Attention: William L. Taylor
Facsimile No.:
(212) 450-4800
(b) if to any Stockholder or to the Stockholder
Representative, to the Stockholder Representative as follows:
with a copy to:
ArcLight Energy Partners Fund I, L.P.
ArcLight Energy Partners Fund II, L.P.
c/o ArcLight
Capital Partners, LLC
152 West 57th Street, 53rd Floor New York, NY10019
Attention: Robb E. Turner
Senior
Partner
Facsimile No.:
212-888-9275
ArcLight Energy Partners Fund I, L.P.
ArcLight Energy Partners Fund II, L.P.
c/o ArcLight
Capital Partners, LLC
200 Clarendon Street, 55th Floor Boston, MA02117
Attention: Christine M. Miller
Associate
General Counsel
Facsimile No.: 617.867.4698
and
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square New York, New York10022
Attention: Sean C. Doyle, Esq.
Facsimile No.:
(212) 735-2000
or to such other address or facsimile number as such party may
hereafter specify for the purpose by notice to the other parties
hereto. All such notices, requests and other communications
shall be deemed received on the date of receipt by the recipient
thereof if received prior to 5:00 p.m. on a Business Day in
the place of receipt. Otherwise, any such notice, request or
communication shall be deemed to have been received on the next
succeeding Business Day in the place of receipt.
Section 4.02. Headings. The
headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or
interpretation of this Agreement.
Section 4.03. Amendments
and Waivers. (a) Any provision of this
Agreement (including any Schedule or Exhibit hereto) may be
amended or waived if, but only if, such amendment or waiver is
in writing and is signed, in the case of an amendment, by
Parent, the Stockholder Representative and a number of
Stockholders owning at least
662/3%
of the Parent Shares owned by all Stockholders at such time, or
in the case of a waiver, by the party against whom the waiver is
to be effective; provided that no amendment to any
provision of Section 1.04, Section 1.05,
Section 1.06, Section 1.07, Section 3.01,
Section 4.03(a) shall be effective against any Stockholder
without such Stockholder’s written consent and no amendment
that is adverse to any Stockholder shall be effective without
the consent of such Stockholder.
(b) No failure or delay by any party in exercising any
right, power or privilege hereunder shall operate as a waiver
thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies
herein provided shall be cumulative and not exclusive of any
rights or remedies provided by law.
Section 4.04. Effectiveness
and Termination. This Agreement shall become
effective on the Effective Time (it being agreed and understood
that if the Merger Agreement is terminated, this Agreement shall
not become effective and shall become void and of no effect).
After the Effective Time, this Agreement shall terminate on the
earlier of (i) the written agreement of Parent and the
Stockholder Representative and (ii) the date, if any, of
the termination of the Standstill Period; provided that
such termination shall not relieve any party hereto from any
liability for breach of this Agreement occurring prior to any
such termination.
Section 4.05. Severability. If
any term, provision, covenant or restriction of this Agreement
is held by a court of competent jurisdiction or other
Governmental Authority 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 so long as
the economic or legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to any
party. Upon such a determination, the parties shall negotiate in
good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable
manner in order that the transactions contemplated hereby be
consummated as originally contemplated to the fullest extent
possible.
Section 4.06. Entire
Agreement. This Agreement supersedes all prior
agreements and undertakings, both written and oral, between the
parties, or any of them, with respect to the subject matter
hereof.
Section 4.07. Assignment. The
provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective
successors and permitted assigns, provided that no party may
assign, delegate or otherwise transfer any of its rights,
interests or obligations under this Agreement without the prior
written consent of the other parties hereto, except that Parent
may assign, delegate or otherwise transfer any of its rights,
interests or obligations under this Agreement to an Affiliate
without the consent of any Stockholder, but any such transfer or
assignment shall not relieve Parent of its obligations hereunder
(and in the event that such Person is no longer an Affiliate of
Parent, any such rights and interests shall be automatically
assigned or transferred to Parent).
Section 4.08. Fees
and Expenses. All costs and expenses (including,
without limitation, all fees and disbursements of counsel,
accountants, investment bankers, experts and consultants to a
party) incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party
incurring such costs and expenses.
Section 4.09. Specific
Performance. The parties hereto agree that
irreparable damage would occur if any provision of this
Agreement were not performed in accordance with the terms hereof
and that the parties shall be entitled (without the requirement
to post bond) to an injunction or injunctions to prevent
breaches of this Agreement or to enforce specifically the
performance of the terms and provisions hereof in the courts
provided for in Section 4.11, in addition to any other
remedy to which they are entitled at law or in equity.
Section 4.10.
Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of
Delaware, without regard to its conflicts of law principles.
Section 4.11. Jurisdiction. The
parties hereto agree that any suit, action or proceeding seeking
to enforce any provision of, or based on any matter arising out
of or in connection with, this Agreement or the transactions
contemplated hereby shall be brought in any Delaware state
court, and each of the parties hereby irrevocably consents to
the jurisdiction of such court (and of the appropriate appellate
courts therefrom) in any such suit, action or proceeding and
irrevocably waives, to the fullest extent permitted by law, any
objection that it may now or hereafter have to the laying of the
venue of any such suit, action or proceeding in any such court
or that any such suit, action or proceeding brought in any such
court has been brought in an inconvenient forum. Process in any
such suit, action or proceeding may be served on any party
anywhere in the world, whether within or without the
jurisdiction of any such court. Without limiting the foregoing,
each party agrees that service of process on such party as
provided in Section 4.01 shall be deemed effective service
of process on such party.
Section 4.12. WAIVER
OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 4.13. Counterparts;
Third Party Beneficiaries. This Agreement may be
signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and
hereto were upon the same instrument. Until and unless each
party has received a counterpart of this Agreement signed by
each of the other parties, this Agreement shall have no effect,
and no party shall have any right or obligation under this
Agreement (whether by virtue of any other oral or written
agreement or other communication). This Agreement shall become
effective when each party shall have received a counterpart
hereof signed by the other parties. No provision of this
Agreement is intended to confer upon any Person other than the
parties hereto any rights or remedies hereunder. Any such
counterpart may be delivered by facsimile or other electronic
format (including “.pdf”).
We understand that Patriot Coal Corporation (the
“Company”) intends to enter into a transaction (the
“Proposed Transaction”) with Magnum Coal Company
(“Magnum”) pursuant to which (i) Colt Merger
Corporation, a wholly owned subsidiary of the Company (the
“Merger Sub”) will merge with and into Magnum with
Magnum surviving the merger and (ii) upon effectiveness of
the merger, the issued and outstanding common stock of Magnum
will be converted into the right to receive up to
11,901,729 shares of common stock of the Company (the
“Consideration”). In addition, we understand that at
the time the Proposed Transaction closes, the Company has
estimated that Magnum will have approximately $150 million
in debt net of unrestricted cash and cash equivalents that will,
in effect, be assumed by the Company. The terms and conditions
of the Proposed Transaction are set forth in more detail in the
Agreement and Plan of Merger (the “Agreement”)
proposed to be entered into among the Company, Magnum, Merger
Sub, and ArcLight Energy Partners Fund I, L.P. and ArcLight
Energy Partners Fund II, L.P. acting jointly as
representative for the stockholders of Magnum identified
therein. The terms and conditions of the Proposed Transaction
are set forth in more detail in the Agreement and the summary
set forth above is qualified in its entirety by the terms of the
Agreement.
We have been requested by the Board of Directors of the Company
to render our opinion with respect to the fairness, from a
financial point of view, to the Company of the Consideration to
be paid by the Company in the Proposed Transaction. We have not
been requested to opine as to, and our opinion does not in any
manner address, the Company’s underlying business decision
to proceed with or effect the Proposed Transaction. In addition,
we express no opinion on, and our opinion does not in any manner
address, the fairness of the amount or the nature of any
compensation to any officers, directors or employees of any
parties to the Proposed Transaction, or any class of such
persons, relative to the Consideration paid in the Proposed
Transaction or otherwise.
In arriving at our opinion, we reviewed and analyzed:
(1) the draft Agreement dated March 25, 2008 and the
specific terms of the Proposed Transaction; (2) publicly
available information concerning the Company and Magnum that we
believe to be relevant to our analysis, including, without
limitation, the Annual Report on
Form 10-K
for the year ended December 31, 2007 for the Company;
(3) financial and operating information with respect to the
business, operations and prospects of Magnum furnished to us by
Magnum and the Company, including (i) financial projections
of Magnum prepared by management of Magnum and
(ii) financial projections of Magnum prepared by management
of the Company (the “Company’s Magnum
Projections”); (4) financial and operating information
with respect to the business, operations and prospects of the
Company furnished to us by the Company, including
(i) financial projections of the Company prepared by
management of the Company (the “Company Projections”)
and (ii) the amount and timing of the cost savings and
operating synergies expected by the management of the Company to
result from the Proposed Transaction (the “Expected
Synergies”); (5) a comparison of the historical
financial results and present financial condition of the Company
and Magnum with each other and with those of other companies
that we deemed relevant; (6) a comparison of the financial
terms of the Proposed Transaction with the financial terms of
certain other transactions that we deemed relevant; (7) the
potential pro forma impact of the Proposed Transaction on the
current financial condition and future financial performance of
the Company, including the Expected Synergies; and
(8) estimates of certain proved and probable reserves of
Magnum conducted by third party reserve engineers dated
February 29, 2008 (the “Reserve Report”). In
addition, we have had discussions with the managements of the
Company and Magnum concerning their respective businesses,
operations, assets,
liabilities, financial conditions and prospects and have
undertaken such other studies, analyses and investigations as we
deemed appropriate.
In arriving at our opinion, we have assumed and relied upon the
accuracy and completeness of the financial and other information
used by us without any independent verification of such
information and have further relied upon the assurances of
management of the Company and Magnum that they are not aware of
any facts or circumstances that would make information relating
to the Company or Magnum, as applicable, inaccurate or
misleading. With respect to the Company’s Magnum
Projections, upon advice of the Company, we have assumed that
such projections have been reasonably prepared on a basis
reflecting the best currently available estimates and judgments
of the management of the Company as to the future financial
performance of Magnum and that the Company’s Magnum
Projections are a reasonable basis upon which to evaluate the
future financial performance of Magnum, and we have relied on
the Company’s Magnum Projections in performing our
analysis. With respect to the financial projections of the
Company, upon advice of the Company we have assumed that such
projections have been reasonably prepared on a basis reflecting
the best currently available estimates and judgments of the
management of the Company as to the future financial performance
of the Company and that the Company will perform substantially
in accordance with such projections. With respect to the
Estimated Synergies, we have assumed that the amount and timing
of Estimated Synergies are reasonable and, upon the advice of
the Company, we also have assumed that the Estimated Synergies
will be realized substantially in accordance with such
estimates. With respect to the Reserve Report, we have discussed
the Reserve Report with the management of the Company and upon
advice of the Company, we have assumed that the Reserve Report
is a reasonable basis upon which to evaluate the proved and
probable reserve levels of Magnum as of such date. Upon advice
of the Company, we have assumed that the final terms of the
definitive Agreement will not differ in any material respects
from the draft thereof furnished to and reviewed by us. In
arriving at our opinion, we have not conducted a physical
inspection of the properties and facilities of the Company and
have not made or obtained any evaluations or appraisals of the
assets or liabilities of the Company. Our opinion necessarily is
based upon market, economic and other conditions as they exist
on, and can be evaluated as of, the date of this letter.
Based upon and subject to the foregoing, we are of the opinion
as of the date hereof that, from a financial point of view, the
Consideration to be paid by the Company in the Proposed
Transaction is fair to the Company.
We have acted as financial advisor to the Company in connection
with the Proposed Transaction and will receive fees for our
services, a portion of which is payable upon rendering this
opinion and a substantial portion of which is contingent upon
the consummation of the Proposed Transaction. In addition, the
Company has agreed to reimburse a portion of our expenses and
indemnify us for certain liabilities that may arise out of our
engagement. We have performed various investment banking and
financial services for the Company and Magnum in the past, and
expect to perform such services in the future, and have
received, and expect to receive, customary fees for such
services. Specifically, in the past two years, we have performed
the following investment banking and financial services:
(i) acted as a lender under the Company’s
$500 million credit facility and (ii) acted as a
lender and the lead arranger for Magnum’s $260 million
credit facility. In addition, we continue to act as
administrative agent for Magnum’s existing credit facility
and we receive customary fees in connection therewith. In the
ordinary course of our business, we actively trade in the
securities of the Company and Magnum for our own account and for
the accounts of our customers and, accordingly, may at any time
hold a long or short position in such securities.
This opinion, the issuance of which has been approved by our
Fairness Opinion Committee, is for the use and benefit of the
Board of Directors of the Company and is rendered to the Board
of Directors in connection with its consideration of the
Proposed Transaction. This opinion is not intended to be and
does not constitute a
The Board of Directors (the “Board of Directors”) of
Patriot Coal Corporation (the “Company”) has engaged
Duff & Phelps, LLC (“Duff &
Phelps”) as an independent financial advisor to provide an
opinion (the “Opinion”) as of the date hereof as to
the fairness, from a financial point of view, to the Company of
the Consideration (as defined below) to be paid by the Company
in the contemplated transaction described below (the
“Proposed Transaction”).
Description
of the Proposed Transaction
The Proposed Transaction is a merger pursuant to the Agreement
and Plan of Merger, dated as of April 2, 2008 (the
“Merger Agreement”), by and among the Company, Colt
Merger Corporation, a wholly owned subsidiary of the Company
(“Merger Sub”), and Magnum Coal Company (the
“Target”) to be entered into by and among the Company,
Merger Sub and the Target. The Merger Agreement provides, among
other things, for the merger (the “Merger”) of Merger
Sub with and into the Target, as a result of which the Target
will continue as the surviving corporation and will become a
wholly owned subsidiary of the Company. As set forth more fully
in the Merger Agreement, at the effective time of the Merger,
except as provided in the Merger Agreement, each share of Target
common stock (including restricted stock, whether vested or
unvested, and shares of Target common stock issued upon
conversion of the Company Convertible Debt Notes (as defined in
the Merger Agreement)) outstanding immediately prior to the
effective time shall be converted into the right to receive the
Net Per Share Number (as defined in the Merger Agreement) of
shares of the Company’s common stock, subject to the
payment of cash in lieu of fractional shares of the
Company’s common stock and to the withholding of Escrow
Shares (as defined in the Merger Agreement) (the
“Consideration”). The terms and conditions of the
Merger are more fully set forth in the Merger Agreement.
Scope of
Analysis
In connection with this Opinion, Duff & Phelps has
made such reviews, analyses and inquiries as we have deemed
necessary and appropriate under the circumstances.
Duff & Phelps also took into account its assessment of
general economic, market and financial conditions, as well as
its experience in securities and business valuation, in general,
and with respect to similar transactions, in particular.
Duff & Phelps’ procedures, investigations, and
financial analysis with respect to the preparation of our
Opinion included, but were not limited to, the items summarized
below:
1. Reviewed the following documents:
a.
Certain publicly available financial statements and other
business and financial information of the Company and the
industries in which it operates;
b.
Certain internal financial statements and other financial and
operating data concerning the Company and the Target,
respectively, including, without limitation, that which the
Company and the Target have respectively identified as being the
most current financial statements available;
Board of
Directors
Patriot Coal Corporation April 2, 2008
c.
Certain financial forecasts, as well as information relating to
certain strategic, financial and operational benefits
anticipated from the Proposed Transaction, prepared by the
management of the Company;
d.
Certain financial forecasts prepared by the management of
Target, as adjusted by the management of the Company;
Discussed the operations, financial conditions, future prospects
and projected operations and performance of the Company and the
Target, respectively, with the management of the Company and
discussed the Proposed Transaction with the management of the
Company;
3.
Reviewed the historical trading price and trading volume of the
Company’s common stock, and the publicly traded securities
of certain other companies that we deemed relevant;
4.
Compared the financial performance of the Company and the Target
with those of certain other publicly traded companies that we
deemed relevant;
5.
Compared certain financial terms of the Proposed Transaction to
financial terms, to the extent publicly available, of certain
other business combination transactions that we deemed
relevant; and
6.
Conducted such other analyses and considered such other factors
as we deemed appropriate.
Assumptions,
Qualifications and Limiting Conditions
To the extent that any of the assumptions set forth below or any
of the facts on which this Opinion is based proves to be untrue
in any material respect, this Opinion cannot and should not be
relied upon. In performing its analyses and rendering this
Opinion with respect to the Proposed Transaction,
Duff & Phelps, with your consent:
1.
Relied upon the accuracy, completeness, and fair presentation of
all information, data and representations obtained from public
sources or provided to it from private sources, including
Company management, and did not independently verify such
information;
2.
Assumed that any estimates, evaluations, forecasts and
projections (financial or otherwise) (including, without
limitation, as to the strategic, financial and operational
benefits anticipated from the Proposed Transaction (the
“Strategic Benefits”) and including, without
limitation, as to projections by the Company’s management
and industry sources as to future coal prices) furnished to
Duff & Phelps were reasonably prepared and based upon
the best currently available information and good faith judgment
of the person furnishing the same, and we have further assumed
that the Strategic Benefits will be realized at the times and in
the amounts projected by the Company;
3.
Assumed that the final versions of all documents reviewed by
Duff & Phelps in draft form conform in all material
respects to the drafts reviewed;
4.
Assumed that information supplied to Duff & Phelps and
representations and warranties made in the Merger Agreement are
accurate in all material respects and that each party will
perform in all material respects all covenants and agreements
required to be performed by such party;
5.
Assumed that all of the conditions required to implement the
Proposed Transaction will be satisfied and that the Proposed
Transaction will be completed in accordance with the Merger
Agreement without any material amendments thereto or any waivers
of any terms or conditions thereof;
Board of
Directors
Patriot Coal Corporation April 2, 2008
6.
Assumed that all governmental, regulatory or other consents and
approvals necessary for the consummation of the Proposed
Transaction will be obtained without any adverse effect on the
Company or the contemplated benefits expected to be derived in
the Proposed Transaction;
7.
Assumed and relied upon, without verification, the accuracy and
adequacy of the legal advice given by counsel to the Company on
all legal matters with respect to the Proposed Transaction;
8.
Assumed all procedures required by law to be taken in connection
with the Proposed Transaction have been or will be duly, validly
and timely taken and that the Proposed Transaction will be
consummated in a manner that complies in all respects with the
applicable provisions of the Securities Act of 1933, as amended,
the Securities Exchange Act of 1934, as amended, and all other
applicable statutes, rules and regulations;
9.
Assumed that the Proposed Transaction will be treated as a
tax-free transaction for United States federal income tax
purposes;
10.
Relied upon, without independent verification, representations
by management of the Company and any third-party estimates as to
the expenses and annual cash costs of certain liabilities of the
Company and Target associated with (i) reclamation of
mines, (ii) health care benefits for past and present work
force, (iii) workers’ compensation claims for
compensable work-related injuries and occupational disease, and
(iv) federally mandated benefits for occupational disease
(collectively, the “Legacy Liabilities”); and
11.
Assumed that there would be no material change in regulations
governing the production of coal, regulations that would
restrict key users of coal (i.e., coal-fired power plants, etc.)
from utilizing coal as an input, or regulations that would
materially increase the expected cash obligations related to
Legacy Liabilities.
Duff & Phelps did not make any independent evaluation,
appraisal or physical inspection of the Company’s solvency
or of any specific assets or liabilities (contingent or
otherwise). This Opinion should not be construed as a valuation
opinion, credit rating, or solvency opinion, an analysis of the
Company’s credit worthiness, as tax advice, or as
accounting advice. Duff & Phelps has not been
requested to, and did not, (a) initiate any discussions
with, or solicit any indications of interest from, third parties
with respect to the Proposed Transaction, the assets, businesses
or operations of the Company, or any alternatives to the
Proposed Transaction, (b) negotiate the terms of the
Proposed Transaction, and therefore, Duff & Phelps has
assumed that such terms are the most beneficial terms, from the
Company’s perspective, that could, under the circumstances,
be negotiated among the parties to the Merger Agreement and the
Proposed Transaction, or (c) advise the Board of Directors
or any other party with respect to alternatives to the Proposed
Transaction. In addition, Duff & Phelps is not
expressing any opinion as to the market price or value of the
Company common stock or Target common stock after announcement
of the Proposed Transaction. Duff & Phelps has not
made, and assumes no responsibility to make, any representation,
or render any opinion, as to any legal matter.
In rendering this Opinion, Duff & Phelps is not
expressing any opinion with respect to the amount or nature of
any compensation to any of the Company’s officers,
directors, or employees, or any class of such persons, or with
respect to the fairness of any such compensation.
Duff & Phelps has prepared this Opinion effective as
of the date hereof. This Opinion is necessarily based upon
market, economic, financial and other conditions as they exist
and can be evaluated as of the date hereof, and Duff &
Phelps disclaims any undertaking or obligation to advise any
person of any change in any fact or matter affecting this
Opinion which may come or be brought to the attention of
Duff & Phelps after the date hereof.
Board of
Directors
Patriot Coal Corporation April 2, 2008
The basis and methodology for this Opinion have been designed
specifically for the express purposes of the Board of Directors
in connection with, and for the purposes of, the Board of
Director’s evaluation of the Proposed Transaction from a
financial point of view and does not address any other aspect of
the Proposed Transaction, and may not translate to any other
purposes. This Opinion does not address the relative merits of
the Proposed Transaction as compared to other business
strategies or transactions that might be available to the
Company or the Company’s underlying business decision to
effect the Proposed Transaction. This Opinion is not a
recommendation as to how the Board of Directors, any stockholder
or any other person or entity should vote or act with respect to
any matters relating to the Proposed Transaction, or whether to
proceed with the Proposed Transaction or any related
transaction, nor does it indicate that the Consideration to be
paid is the best possibly attainable under any circumstances.
Instead, it merely states whether the Consideration proposed to
be paid in the Proposed Transaction is within a range suggested
by certain financial analyses. The decision as to whether to
proceed with the Proposed Transaction or any related transaction
may depend on an assessment of factors unrelated to the
financial analysis on which this Opinion is based. This letter
should not be construed as creating any fiduciary duty on the
part of Duff & Phelps to any party.
This Opinion may be included in its entirety in any proxy
statement distributed to stockholders of the Company in
connection with the Proposed Transaction or other document
required by law or regulation to be filed with the Securities
and Exchange Commission, and you may summarize or otherwise
reference the existence of this Opinion in such documents,
provided that any such summary or reference language shall be
subject to the prior written approval by Duff &
Phelps. Except as described above, without our prior consent,
this Opinion may not be quoted from or referred to, in whole or
in part, in any written document or used for any other purpose.
Duff & Phelps has acted as financial advisor to the
Board of Directors, and will receive a fee for its services. No
portion of Duff & Phelps’ fee is contingent upon
either the conclusion expressed in the Opinion or whether or not
the Proposed Transaction is successfully consummated. Pursuant
to the terms of the engagement letter between the Company and
Duff & Phelps, a portion of Duff &
Phelps’ fee is payable upon Duff & Phelps’
stating to the Board of Directors that it is prepared to deliver
its Opinion. Other than this engagement, during the two years
preceding the date of this Opinion, Duff & Phelps has
not had any material relationship with any party to the Proposed
Transaction for which compensation has been received or is
intended to be received, nor is any such material relationship
or related compensation mutually understood to be contemplated,
provided, however, we do note that Duff & Phelps
provided a solvency opinion to the board of directors of Peabody
Energy Corporation related to the October 31, 2007 spin-off
of the Company. This Opinion has been approved by the internal
opinion committee of Duff & Phelps.
Conclusion
Based upon and subject to the foregoing, Duff & Phelps
is of the opinion that, as of the date hereof, the Consideration
to be paid by the Company in the Proposed Transaction is fair,
from a financial point of view, to the Company.
Board of
Directors
Patriot Coal Corporation April 2, 2008
ANNEX
E
Report of
Independent Registered Public Accounting Firm
The Board of Directors and Stockholders
Patriot Coal Corporation
We have audited the accompanying consolidated balance sheets of
Patriot Coal Corporation (the Company) as of December 31,2007 and 2006, and the related consolidated statements of
operations, changes in stockholders’ equity(deficit), and
cash flows for each of the three years in the period ended
December 31, 2007. These financial statements are the
responsibility of the Company’s management. Our
responsibility is to express an opinion on these financial
statements based on our audits. We did not audit the financial
statements of KE Ventures (an LLC in which the Company had a
73.9% ownership interest for 2006 and 49% for 2005) for the
years ended December 31, 2006 and 2005. KE Ventures, LLC
was a consolidated entity as of December 31, 2006 and for
the year ended December 31, 2006. KE Ventures, LLC’s
total assets were $85 million as of December 31, 2006,
and total revenues were $103.8 million for the year ended
December 31, 2006. KE Ventures, LLC was an investee for the
year ended December 31, 2005. In the consolidated financial
statements, the Company’s equity in net income of KE
Ventures, LLC was stated at $16.9 million for the year
ended December 31, 2005. KE Ventures, LLC’s statements
as of December 31, 2006, and for the two years in the
period ended December 31, 2006, were audited by other
auditors whose report has been furnished to us, and our opinion,
insofar as it relates to the amounts included for KE Ventures,
LLC, is based solely on the reports of other auditors.
We conducted our audits in accordance with the standards of the
Public Company Accounting Oversight Board (United States). Those
standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are
free of material misstatement. We were not engaged to perform an
audit of the Company’s internal control over financial
reporting. Our audits included consideration of internal control
over financial reporting as a basis for designing audit
procedures that are appropriate in the circumstances, but not
for the purpose of expressing an opinion on the effectiveness of
the Company’s internal control over financial reporting.
Accordingly, we express no such opinion. An audit also includes
examining, on a test basis, evidence supporting the amounts and
disclosures in the financial statements, assessing the
accounting principles used and significant estimates made by
management, and evaluating the overall financial statement
presentation. We believe that our audits and the report of other
auditors provide a reasonable basis for our opinion.
In our opinion, based on our audits and the report of other
auditors, the consolidated financial statements referred to
above present fairly, in all material respects, the consolidated
financial position of Patriot Coal Corporation at
December 31, 2007 and 2006, and the consolidated results of
its operations and its cash flows for each of the three years in
the period ended December 31, 2007, in conformity with
U.S. generally accepted accounting principles.
As discussed in Notes 14 and 16 to the consolidated
financial statements, on December 31, 2006, the Company
changed its method of accounting for post retirement and post
employment benefits.
Report of
Independent Registered Public Accounting Firm
To the Board of Directors and Members of
KE Ventures, LLC
In our opinion, the consolidated balance sheets and the related
consolidated statements of operations, of members’ capital
and of cash flows (not presented herein) present fairly, in all
material respects, the financial position of KE Ventures, LLC
(the “Company”) and its subsidiaries at
December 31, 2006 and 2005, and the results of their
operations and their cash flows for each of the years then ended
in conformity with accounting principles generally accepted in
the United States of America. These financial statements are the
responsibility of the Company’s management. Our
responsibility is to express an opinion on these financial
statements based on our audit. We conducted our audits of these
statements in accordance with the standards of the Public
Company Accounting Oversight Board (United States). Those
standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are
free of material misstatement. An audit includes examining, on a
test basis, evidence supporting the amounts and disclosures in
the financial statements, assessing the accounting principles
used and significant estimates made by management, and
evaluating the overall financial statement presentation. We
believe that our audits provide a reasonable basis for our
opinion.
Consummation
of Spin-off Transaction and Basis of Presentation
Consummation
of Spin-off Transaction
On October 31, 2007, Patriot Coal Corporation (Patriot) was
spun-off from Peabody Energy Corporation (Peabody). Patriot
includes coal assets in Appalachia and the Illinois Basin and
operations in West Virginia and Kentucky. The spin-off was
accomplished through a dividend of all outstanding shares of
Patriot, resulting in Patriot becoming a separate, public-traded
company traded on the New York Stock Exchange (symbol PCX).
Distribution of the Patriot stock to Peabody’s stockholders
occurred on October 31, 2007, at a ratio of one share of
Patriot stock for every 10 shares of Peabody stock. The
distribution on October 31, 2007 also included a net
contribution from Peabody of $781.3 million, which
reflected the following:
•
retention by Peabody of certain retiree healthcare liabilities
of $615.8 million;
•
the forgiveness of the outstanding intercompany payables to
Peabody on October 31, 2007 of $81.5 million;
•
the retention by Patriot of trade accounts receivable at
October 31, 2007, previously recorded through intercompany
receivables, of $68.6 million;
•
a $30.0 million cash contribution;
•
the retention by Peabody of assets and asset retirement
obligations related to certain Midwest mining operations of a
net $8.1 million;
•
less the transfer of intangible assets of $22.7 million
related to purchased contract rights for a supply contract
retained by Peabody.
Basis
of Presentation
Effective October 31, 2007, Patriot was spun-off from
Peabody and became a separate, publicly-traded company. All
significant transactions, profits and balances have been
eliminated between Patriot and its subsidiaries.
The information discussed below primarily relates to
Patriot’s historical results and may not necessarily
reflect what its financial position, results of operations and
cash flows will be in the future or would have been as a
stand-alone company. Upon the completion of the spin-off,
Patriot’s capital structure was changed significantly. At
the spin-off date Patriot entered into various operational
agreements with Peabody, including certain on-going agreements
that enhance both the financial position and cash flows of
Patriot. Such agreements include the assumption by Peabody of
certain retiree healthcare liabilities and the repricing of a
major coal supply agreement to be more reflective of the then
current market pricing for similar quality coal.
Patriot operates in two domestic coal segments; Appalachia and
the Illinois Basin (see Note 20).
(2)
Summary
of Significant Accounting Policies
Description
of Business
Patriot is engaged in the mining of thermal coal for sale
primarily to electric utilities and metallurgical coal for sale
to steel mills and independent coke producers. Patriot’s
mining operations are located in the eastern United States,
primarily in Appalachia and the Illinois Basin.
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS — (Continued)
Sales
Patriot’s revenue from coal sales is realized and earned
when risk of loss passes to the customer. Coal sales are made to
customers under the terms of supply agreements, most of which
are long-term (greater than one year). Under the typical terms
of these coal supply agreements, title and risk of loss transfer
to the customer at the mine, where coal is loaded onto the rail,
barge, truck or other transportation source that delivers coal
to its destination. Shipping and transportation costs are
generally borne by the customer. In relation to export sales,
Patriot holds inventories at port facilities where title and
risk of loss do not transfer until the coal is loaded to an
ocean-going vessel. The Company incurs certain
“add-on” taxes and fees on coal sales. Coal sales are
reported including taxes and fees charged by various federal and
state governmental bodies.
Other
Revenues
Other revenues include royalties related to coal lease
agreements and farm income. Royalty income generally results
from the lease or sublease of mineral rights to third parties,
with payments based upon a percentage of the selling price or an
amount per ton of coal produced. Certain agreements require
minimum annual lease payments regardless of the extent to which
minerals are produced from the leasehold, although revenue is
only recognized on these payments as the mineral is mined. The
terms of these agreements generally range from specified periods
of 5 to 15 years, or can be for an unspecified period until
all reserves are depleted.
Cash
and Cash Equivalents
Cash and cash equivalents are stated at cost, which approximates
fair value. Cash equivalents consist of highly liquid
investments with original maturities of three months or less.
Inventories
Materials and supplies and coal inventory are valued at the
lower of average cost or market. Saleable coal represents coal
stockpiles that will be sold in current condition. Raw coal
represents coal stockpiles that may be sold in current condition
or may be further processed prior to shipment to a customer.
Coal inventory costs include labor, supplies, equipment,
operating overhead and other related costs.
Property,
Plant, Equipment and Mine Development
Property, plant, equipment and mine development are recorded at
cost. Interest costs applicable to major asset additions are
capitalized during the construction period, including
$0.5 million, $0.3 million and $0.1 million for
the years ended December 31, 2007, 2006 and 2005,
respectively.
Expenditures which extend the useful lives of existing plant and
equipment assets are capitalized. Maintenance and repairs are
charged to operating costs as incurred. Costs incurred to
develop coal mines or to expand the capacity of operating mines
are capitalized. Costs incurred to maintain current production
capacity at a mine and exploration expenditures are charged to
operating costs as incurred, including costs related to drilling
and study costs incurred to convert or upgrade mineral resources
to reserves. Costs to acquire computer hardware and the
development
and/or
purchase of software for internal use are capitalized and
depreciated over the estimated useful lives.
Coal reserves are recorded at cost, or at fair value in the case
of acquired businesses. Coal reserves are included in “Land
and coal interests”. As of December 31, 2007 and 2006,
the net book value of coal reserves totaled $545.5 and
$436.2 million, respectively. These amounts included $287.6
and $302.6 million at December 31, 2007 and 2006,
respectively, attributable to properties where the Company was
not currently engaged in mining operations or leasing to third
parties and, therefore, the coal reserves are not currently
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS — (Continued)
being depleted. Included in the book value of coal reserves are
mineral rights for leased coal interests including advance
royalties, and the net book value of these mineral rights was
$380.1 million and $272.8 million at December 31,2007 and 2006, respectively. The remaining net book value of the
coal reserves of $165.4 million and $163.4 million at
December 31, 2007 and 2006, respectively, relates to coal
reserves held by fee ownership.
Depletion of coal reserves and amortization of advance royalties
are computed using the units-of-production method utilizing only
proven and probable reserves (as adjusted for recoverability
factors) in the depletion base. Mine development costs are
principally amortized ratably over the estimated lives of the
mines.
Depreciation of plant and equipment (excluding life of mine
assets) is computed ratably over the estimated useful lives as
follows:
Years
Building and improvements
10 to 20
Machinery and equipment
1 to 30
Leasehold improvements
Shorter of life of asset, mine or lease
In addition, certain plant and equipment assets associated with
mining are depreciated ratably over the estimated life of the
mine. Remaining lives vary from 1 to 22 years. The charge
against earnings for depreciation of property, plant, equipment
and mine development was $60.3 million, $65.1 million
and $46.6 million for the years ended December 31,2007, 2006 and 2005, respectively.
Intangible
Assets
On a gross basis, intangible assets consisting of royalty rights
totaled $21.2 million at December 31, 2007 and 2006,
with accumulated amortization at December 31, 2007 and 2006
of $4.1 million and $1.4 million, respectively. In
addition to these royalty rights, Patriot had gross purchased
contract rights of $58.9 million with accumulated
amortization of $34.5 million that were included in the
December 31, 2006 intangible assets balance. In connection
with the spin-off, all purchased contract rights remained with
Peabody except for $6.2 million gross purchased contract
rights, associated with the KE Ventures, LLC acquisition (see
Note 6), with accumulated amortization of
$2.0 million. The charge against earnings for amortization
of these intangibles was $6.5 million, $4.0 million
and $4.2 million for the years ended December 31,2007, 2006 and 2005, respectively. These intangibles are
included in “Investments and other assets” and are
amortized on a per-ton basis. Intangibles are also subject to
evaluation for potential impairment if an event occurs or a
change in circumstances indicates the carrying amount may not be
recoverable.
Joint
Ventures
The Company applies the equity method to investments in joint
ventures when it has the ability to exercise significant
influence over the operating and financial policies of the joint
venture. Investments accounted for under the equity method are
initially recorded at cost, and any difference between the cost
of the Company’s investment and the underlying equity in
the net assets of the joint venture at the investment date is
amortized over the lives of the related assets that gave rise to
the difference. The Company’s pro rata share of earnings
from joint ventures and basis difference amortization are
reported in the consolidated statement of operations in
“Income from equity affiliates.” The book values of
the Company’s equity method investments as of
December 31, 2007 and 2006 were $0.7 million and
$0.6 million, respectively, and are reported in
“Investments and other assets” in the consolidated
balance sheets. In 2005, the Company’s investment in joint
ventures consisted primarily of one significant subsidiary, KE
Ventures, LLC. In 2006, KE Ventures, LLC became a consolidated
subsidiary.
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS — (Continued)
Asset
Retirement Obligations
Statement of Financial Accounting Standards (SFAS) No. 143,
“Accounting for Asset Retirement Obligations”
(SFAS No. 143) addresses financial accounting and
reporting for obligations associated with the retirement of
tangible long-lived assets and the associated asset retirement
costs. The Company’s asset retirement obligations (ARO)
primarily consist of spending estimates related to reclaiming
surface land and support facilities at both surface and
underground mines in accordance with federal and state
reclamation laws as defined by each mining permit.
ARO liabilities for final reclamation and mine closure are
estimated based upon detailed engineering calculations of the
amount and timing of the future cash spending for a third-party
to perform the required work. Spending estimates are escalated
for inflation and then discounted at the credit-adjusted,
risk-free rate. Patriot records an ARO asset associated with the
discounted liability for final reclamation and mine closure. The
obligation and corresponding asset are recognized in the period
in which the liability is incurred. The ARO asset is amortized
on the units-of-production method over its expected life and the
ARO liability is accreted to the projected spending date. As
changes in estimates occur (such as mine plan revisions, changes
in estimated costs or changes in timing of the performance of
reclamation activities), the revisions to the obligation and
asset are recognized at the appropriate credit-adjusted,
risk-free rate. The Company also recognizes an obligation for
contemporaneous reclamation liabilities incurred as a result of
surface mining. Contemporaneous reclamation consists primarily
of grading, topsoil replacement and re-vegetation of backfilled
pit areas.
Environmental
Liabilities
Included in “Other noncurrent liabilities” are
accruals for other environmental matters that are recorded in
operating expenses when it is probable that a liability has been
incurred and the amount of the liability can be reasonably
estimated. Accrued liabilities are exclusive of claims against
third parties and are not discounted. In general, costs related
to environmental remediation are charged to expense.
Income
Taxes
Income taxes are accounted for using a balance sheet approach in
accordance with SFAS No. 109, “Accounting for
Income Taxes” (SFAS No. 109). Deferred income
taxes are accounted for by applying statutory tax rates in
effect at the date of the balance sheet to differences between
the book and tax basis of assets and liabilities. A valuation
allowance is established if it is “more likely than
not” that the related tax benefits will not be realized. In
determining the appropriate valuation allowance, projected
realization of tax benefits is considered based on expected
levels of future taxable income, available tax planning
strategies and the overall deferred tax position.
SFAS No. 109 specifies that the amount of current and
deferred tax expense for an income tax return group shall be
allocated among the members of that group when those members
issue separate financial statements. For purposes of the
financial statements, Patriot’s income tax expense has been
recorded as if it filed a consolidated tax return separate from
Peabody, notwithstanding that a majority of the operations were
historically included in the U.S. consolidated income tax
return filed by Peabody. Patriot’s valuation allowance was
also determined on the separate tax return basis. Additionally,
Patriot’s tax attributes (i.e. net operating losses and AMT
credits) have been determined based on U.S. consolidated
tax rules describing the apportionment of these items upon
departure (i.e. spin-off) from the Peabody consolidated group.
Peabody was managing its tax position for the benefit of its
entire portfolio of businesses. Peabody’s tax strategies
were not necessarily reflective of the tax strategies that
Patriot would have followed or will follow as a stand-alone
company, nor were they necessarily strategies that optimized the
Company’s stand-alone
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS — (Continued)
position. As a result, Patriot’s effective tax rate as a
stand-alone entity may differ significantly from those
prevailing in historical periods.
Postretirement
Healthcare Benefits
Postretirement benefits other than pensions are accounted for in
accordance with SFAS No. 106, “Employers’
Accounting for Postretirement Benefits Other Than Pensions”
(SFAS No. 106), which requires the costs of benefits
to be provided to be accrued over the employees’ period of
active service. These costs are determined on an actuarial
basis. As a result of the adoption of SFAS No. 158 on
December 31, 2006, the consolidated balance sheets as of
December 31, 2007 and 2006 fully reflect the funded status
of postretirement benefits.
Multi-Employer
Benefit Plans
The Company has an obligation to contribute to two plans
established by the Coal Industry Retiree Health Benefits Act of
1992 (the Coal Act) — the “Combined Fund”
and the “1992 Benefit Plan.” A third fund, the 1993
Benefit Fund (the 1993 Benefit Plan), was established through
collective bargaining, but is now a statutory plan under
legislation passed in 2006. The Combined Fund obligations are
accounted for in accordance with Emerging Issues Task Force
No. 92-13,
“Accounting for Estimated Payments in Connection with the
Coal Industry Retiree Health Benefit Act of 1992,” as
determined on an actuarial basis. The 1992 Benefit Plan and the
1993 Benefit Plan qualify as multi-employer plans under
SFAS No. 106, and expense is recognized as
contributions are made.
Pension
Plans
Prior to the spin-off, Patriot participated in a
non-contributory defined benefit pension plan (the Pension Plan)
accounted for in accordance with SFAS No. 87,
“Employers’ Accounting for Pensions”
(SFAS No. 87), which requires that the cost to provide
the benefits be accrued over the employees’ period of
active service. The Pension Plan was sponsored by one of
Peabody’s subsidiaries and covered certain
U.S. salaried employees and eligible hourly employees of
Peabody. In connection with the spin-off, Patriot employees no
longer participate in a defined benefit pension plan, and
Patriot did not retain any of the assets and liabilities for the
Pension Plan. Accordingly the assets and liabilities of the
Pension Plan are not allocated to Patriot and are not presented
in the accompanying balance sheets. However, annual
contributions to the Pension Plan were made as determined by
consulting actuaries based upon the Employee Retirement Income
Security Act of 1974 minimum funding standard. Patriot recorded
expense of $1.1 million, $3.7 million, and
$4.5 million for the years ended December 31, 2007,
2006 and 2005, respectively, as a result of its participation in
the Pension Plan, reflecting Patriot’s proportional share
of Peabody’s expense based on the number of plan
participants.
Patriot also participates in two multi-employer pension plans,
the United Mine Workers of America 1950 Pension Plan (the 1950
Plan) and the United Mine Workers of America 1974 Pension Plan
(the 1974 Plan). These plans qualify as multi-employer plans
under SFAS No. 87, and expense is recognized as
contributions are made. See Note 15 for additional
information.
Postemployment
Benefits
Postemployment benefits are provided to qualifying employees,
former employees and dependents, and Patriot accounts for these
items on the accrual basis in accordance with
SFAS No. 112 “Employers’ Accounting for
Postemployment Benefits.” Postemployment benefits include
workers’ compensation occupational disease, which is
accounted for on the actuarial basis over the employees’
periods of active service; workers’ compensation traumatic
injury claims, which are accounted for based on estimated loss
rates applied to payroll and claim reserves determined by
independent actuaries and claims administrators; disability
income benefits, which are accrued when a claim occurs; and
continuation of medical benefits, which are
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS — (Continued)
recognized when the obligation occurs. As a result of the
adoption of SFAS No. 158, “Employers’ Accounting
for Defined Benefit Pension and Other Postretirement Plans”
(SFAS No. 158) on December 31, 2006, the
Company’s consolidated balance sheets as of
December 31, 2007 and December 31, 2006 fully reflect
the funded status of postemployment benefits.
Use of
Estimates in the Preparation of the Consolidated Financial
Statements
The preparation of financial statements in conformity with
generally accepted accounting principles requires management to
make estimates and assumptions that affect the reported amounts
of assets and liabilities and disclosure of contingent assets
and liabilities at the date of the financial statements and
reported amounts of revenues and expenses during the reporting
period. Actual results could differ from those estimates.
In particular, Patriot has significant long-term liabilities
relating to retiree healthcare and work-related injuries and
illnesses. Each of these liabilities is actuarially determined
and uses various actuarial assumptions, including the discount
rate and future cost trends, to estimate the costs and
obligations for these items. In addition, the Company has
significant asset retirement obligations that involve
estimations of costs to remediate mining lands and the timing of
cash outlays for such costs. If these assumptions do not
materialize as expected, actual cash expenditures and costs
incurred could differ materially from current estimates.
Moreover, regulatory changes could increase the obligation to
satisfy these or additional obligations.
Finally, in evaluating the valuation allowance related to
deferred tax assets, various factors are taken into account,
including the expected level of future taxable income and
available tax planning strategies. If actual results differ from
the assumptions made in the evaluation of the valuation
allowance, a change in valuation allowance may be recorded
through income tax expense in the period such determination is
made.
Impairment
of Long-Lived Assets
Impairment losses on long-lived assets used in operations are
recorded when events and circumstances indicate that the assets
might be impaired and the undiscounted cash flows estimated to
be generated by those assets under various assumptions are less
than the carrying amounts of those assets. Impairment losses are
measured by comparing the estimated fair value of the impaired
asset to its carrying amount. There were no impairment losses
recorded during the periods covered by the consolidated
financial statements.
Fair
Value of Financial Instruments
SFAS No. 107, “Disclosures about Fair Value of
Financial Instruments,” defines the fair value of a
financial instrument as the amount at which the instrument could
be exchanged in a current transaction between willing parties,
other than in a forced or liquidation sale. The following
methods and assumptions were used by the Company in estimating
its fair value disclosures for financial instruments as of
December 31, 2007 and 2006:
•
Cash and cash equivalents, accounts receivable, accounts payable
and accrued expenses have carrying values which approximate fair
value due to the short maturity or the financial nature of these
instruments.
•
The fair value of notes receivable approximates the carrying
value as of December 31, 2007 and 2006.
•
The fair value of net payables to former affiliates approximated
the carrying value as of December 31, 2006.
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS — (Continued)
New
Accounting Pronouncements
FASB
Statement No. 157
In September 2006, the Financial Accounting Standards Board
(FASB) issued Statement No. 157, “Fair Value
Measurements” (SFAS No. 157).
SFAS No. 157 defines fair value, establishes a
framework for measuring fair value under generally accepted
accounting principles, and expands disclosures about fair value
measures. SFAS No. 157 clarifies that fair value is a
market-based measurement that should be determined based on the
assumptions that market participants would use in pricing an
asset or liability. SFAS No. 157 is effective for
fiscal years beginning after November 15, 2007. The
provisions of SFAS No. 157 are to be applied on a
prospective basis, with the exception of certain financial
instruments for which retrospective application is required. The
Company is still determining the impact, if any, the adoption of
SFAS No. 157 will have on the results of operations,
financial position, and liquidity however, at this time, the
Company does not expect the impact to be material.
FASB
Statement No. 159
In February 2007, the FASB issued Statement No. 159,
“The Fair Value Option for Financial Assets and Financial
Liabilities” (SFAS No. 159).
SFAS No. 159 permits entities to choose to measure
many financial instruments and certain other items at fair value
that are not currently required to be measured at fair value.
Entities electing the fair value option will be required to
recognize changes in fair value in earnings and to expense
upfront cost and fees associated with each item for which the
fair value option is elected. SFAS No. 159 is
effective for fiscal years beginning after November 15,2007. The impact the adoption of SFAS No. 159 will
have on the results of operations, financial position and
liquidity, if any, is still being determined; however, at this
time, the Company does not expect the impact to be material.
FASB
Statement No. 160
In December 2007, the FASB issued SFAS No. 160,
“Noncontrolling Interests in Consolidated Financial
Statements — an amendment of ARB No. 51”
(SFAS No. 160). SFAS No. 160 establishes
accounting and reporting standards for (1) noncontrolling
interests in partially owned consolidated subsidiaries and
(2) the loss of control of subsidiaries.
SFAS No. 160 requires noncontrolling interests
(minority interests) to be reported as a separate component of
equity. The amount of net income attributable to the
noncontrolling interest will be included in consolidated net
income on the face of the income statement. In addition, this
statement requires that a parent recognize a gain or loss in net
income when a subsidiary is deconsolidated. Such gain or loss
will be measured using the fair value of the noncontrolling
equity investment on the deconsolidation date.
SFAS No. 160 also includes expanded disclosure
requirements regarding the interests of the parent and its
noncontrolling interest. SFAS No. 160 is effective for
fiscal years, and interim periods within those fiscal years,
beginning on or after December 15, 2008 (January 1,2009 for the Company). Early adoption is not allowed. The
Company is in the process of determining the effect, if any, the
adoption of SFAS No. 160 will have on the results of
operations, financial position and liquidity; however, at this
time, the Company does not expect the impact to be material.
FASB
Statement No. 141(R)
In December 2007, the FASB issued SFAS No. 141(R),
“Business Combinations,” (SFAS No. 141(R))
which replaces SFAS No. 141. SFAS No. 141(R)
significantly changes the principles and requirements for how
the acquirer of a business recognizes and measures in its
financial statements the identifiable assets acquired, the
liabilities assumed, and any noncontrolling interest in the
acquiree. This statement also provides guidance for recognizing
and measuring the goodwill acquired in the business combination
and determines what information to disclose to enable users of
the financial statements to evaluate the nature and financial
effects of the business combination. This statement applies
prospectively to business combinations for which
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS — (Continued)
the acquisition date is on or after the beginning of the first
annual reporting period beginning on or after December 15,2008 (January 1, 2009 for the Company). The adoption of
SFAS No. 141(R) will only impact the Company’s
financial statements to the extent any acquisitions are made on
or subsequent to January 1, 2009.
(3)
Risk
Management and Financial Instruments
Patriot is exposed to various types of risk in the normal course
of business, including fluctuations in commodity prices and
interest rates. These risks are actively monitored to ensure
compliance with the Company’s risk management policies. The
Company manages its commodity price risk related to the sale of
coal through the use of long-term, fixed-price contracts, rather
than financial instruments.
Credit
Risk
Patriot’s concentration of credit risk is substantially
with Peabody and utility customers. Patriot sells the majority
of its production through a marketing affiliate of Peabody at
prices paid by third-party customers (see Note 17 for
additional discussion of related party transactions). Allowance
for doubtful accounts was $0.3 million at December 31,2007 and 2006. The Company also has $133.3 million in notes
receivable as of December 31, 2007 outstanding from
counterparties from the sale of coal reserves and surface lands
discussed in Note 4. Each of these notes contain a
cross-collaterization provision secured primarily by the
underlying coal reserves and surface lands.
The Company’s policy is to independently evaluate each
customer’s creditworthiness prior to entering into
transactions and to constantly monitor the credit extended. In
the event that a transaction occurs with a counterparty that
does not meet the Company’s credit standards, the Company
may protect its position by requiring the counterparty to
provide appropriate credit enhancement. When appropriate, steps
have been taken to reduce credit exposure to customers or
counterparties whose credit has deteriorated and who may pose a
higher risk, as determined by the credit management function, of
failure to perform under their contractual obligations. These
steps include obtaining letters of credit or cash collateral,
requiring prepayments for shipments or the creation of customer
trust accounts held for the Company’s benefit to serve as
collateral in the event of failure to pay.
Employees
As of December 31, 2007, Patriot had approximately
2,300 employees. As of December 31, 2007,
approximately 61% of the employees at company operations were
represented by an organized labor union and they generated
approximately 49% of the 2007 sales volume. Relations with its
employees and, where applicable, organized labor are important
to the Company’s success. Union labor is represented by the
United Mine Workers of America (UMWA). The approximately 350
represented workers at the Illinois Basin Highland Mine operate
under a contract that expires on December 31, 2011 and this
mine generated approximately 19% of the 2007 coal production.
The remainder of the Company’s represented workers are in
Appalachia and operate under a labor agreement also expiring
December 31, 2011.
(4)
Net Gain
on Disposal or Exchange of Assets and Other Commercial
Events
In 2007, Patriot sold approximately 88 million tons of coal
reserves and surface land located in Kentucky and the Big Run
Mine for cash of $26.5 million and notes receivable of
$69.4 million which resulted in a gain of
$78.5 million.
During 2006, Patriot sold coal reserves and surface land located
in Kentucky and West Virginia for proceeds of $84.9 million
including cash of $31.8 million and notes receivable of
$53.1 million which resulted
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS — (Continued)
in a gain of $66.6 million. The gain from these
transactions is included in “Net gain on disposal or
exchange of assets” in the consolidated statements of
operations.
In the third quarter of 2005, Peabody exchanged certain steam
coal reserves for steam and metallurgical coal reserves as part
of a contractual dispute settlement between Peabody and a
third-party. Under the settlement, Peabody received
$10.0 million in cash, a new coal supply agreement that
partially replaced the disputed coal supply agreement and
exchanged the Company’s steam coal reserves. As a result of
the final settlement and based on the fair values of the items
exchanged in the overall settlement transaction (including cash
of $4.0 million), Patriot recognized a gain on assets
exchanged of $37.4 million in relation to this transaction.
The fair value of assets exchanged exceeded the book value of
assets relinquished by $33.4 million and this non-cash
addition is not included in “Additions to property, plant,
equipment and mine development” in the consolidated
statement of cash flows. The gain from this transaction is
included in “Net gain on disposal or exchange of
assets” in the consolidated statements of operations.
Also in the third quarter of 2005, Patriot recognized a
$6.2 million gain from an exchange transaction involving
the acquisition of Illinois Basin coal reserves in exchange for
coal reserves, cash, notes and the Company’s 45% equity
interest in a partnership.
(5)
Earnings
per Share
Basic earnings per share is computed by dividing net income by
the number of weighted average common shares outstanding during
the reporting period. Diluted earnings per share is calculated
to give effect to all potentially dilutive common shares that
were outstanding during the reporting period. Earnings (loss)
per share is not presented for periods prior to October 31,2007, because Peabody and its affiliates were the sole owners
prior to the initial distribution.
For the year ended December 31, 2007, 32,929 shares
were excluded from the diluted earnings per share calculations
for the Company’s common stock because they were
anti-dilutive.
(6)
Acquisition
KE
Ventures, LLC
As of December 31, 2005, the Company owned a 49% interest
in KE Ventures, LLC and accounted for the interest under the
equity method of accounting. In March 2006, Patriot increased
its ownership interest in the joint venture to an effective
73.9% and accordingly, fully consolidated KE Ventures, LLC
effective January 1, 2006. The purchase price for the
additional 24.9% interest was $44.5 million plus assumed
debt. The purchase price was allocated over the various assets
and liabilities in proportion to the additional ownership
percentage with an additional $52.8 million allocated to
coal reserves and plant and equipment included in
“Property, plant, equipment and mine development” and
customer contracts included in “Investments and other
assets”.
In September 2007, Patriot acquired an additional 7.6% interest
in KE Ventures, LLC for $13.6 million, increasing effective
ownership to 81.5%. The minority holders of KE Ventures, LLC
held an option which could require Patriot to purchase the
remaining 18.5% of KE Ventures, LLC upon a change in control.
This option became fully exercisable upon the spin-off from
Peabody. The minority owners of KE Ventures, LLC exercised this
option in 2007, and the Company acquired the remaining minority
interest in KE Ventures, LLC on November 30, 2007 for
$33.0 million. The additional purchase price of
$46.6 million was allocated to the proportional percentage
of assets and liabilities acquired in 2007. The purchase price
was primarily allocated to coal reserves as it was the most
significant asset acquired.
Because the option requiring Patriot to purchase KE Ventures,
LLC is considered a mandatorily redeemable instrument outside of
the Company’s control, amounts paid to the minority
interest holders in
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS — (Continued)
excess of carrying value of the minority interests in KE
Ventures, LLC is reflected as an increase in net loss
attributable to common stockholders. This treatment is
consistent with the guidance in SEC ASR 268 “Redeemable
Preferred Stock” and EITF Topic D-98
“Classification and Measurement of Redeemable
Securities.” Because this obligation is fully redeemed as
of December 31, 2007, adjustments to net income
attributable to common shareholders will not be required in
future periods.
Materials and supplies and coal inventory are valued at the
lower of average cost or market. Saleable coal represents coal
stockpiles that will be sold in current condition. Raw coal
represents coal stockpiles that may be sold in current condition
or may be further processed prior to shipment to a customer.
Coal inventory costs include labor, supplies, equipment,
operating overhead and other related costs.
(8)
Leases
Patriot leases equipment and facilities, directly or through
Peabody, under various non-cancelable lease agreements. Certain
lease agreements require the maintenance of specified ratios and
contain restrictive covenants that limit indebtedness,
subsidiary dividends, investments, asset sales and other actions
by both Peabody and Patriot. Rental expense under operating
leases was $30.9 million, $28.4 million and
$29.9 million for the years ended December 31, 2007,
2006 and 2005, respectively.
A substantial amount of the coal mined by Patriot is produced
from mineral reserves leased from third-party land owners.
Patriot leases these coal reserves under agreements that require
royalties to be paid as the coal is mined. Certain of these
lease agreements also require minimum annual royalties to be
paid regardless of the amount of coal mined during the year.
Total royalty expense was $43.2 million, $51.0 million
and $32.9 million for the years ended December 31,2007, 2006 and 2005, respectively.
Future minimum lease and royalty payments as of
December 31, 2007, are as follows:
Operating
Coal
Leases
Reserves
(Dollars in thousands)
2008
$
24,117
$
12,059
2009
21,589
10,400
2010
20,369
7,113
2011
15,070
4,914
2012
7,278
4,466
2013 and thereafter
6,500
6,676
Total minimum lease and royalty payments
$
94,923
$
45,628
During 2002, Peabody entered into a transaction with Penn
Virginia Resource Partners, L.P. (PVR) whereby two Peabody
subsidiaries sold 120 million tons of coal reserves in
exchange for $72.5 million in cash
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS — (Continued)
and 2.76 million units, or 15%, of the PVR master limited
partnership. Patriot participated in the transaction, selling
approximately 40 million tons of coal reserves with a net
book value of $14.3 million in exchange for
$40.0 million. Patriot leased back the coal from PVR and
pays royalties as the coal is mined. A $25.7 million gain
was deferred at the inception of this transaction, and
$3.2 million of the gain was recognized in each of the
years 2007, 2006 and 2005. The remaining deferred gain of
$6.4 million at December 31, 2007 is intended to
provide for potential exposure to loss resulting from continuing
involvement in the properties and will be amortized to
“Operating costs and expenses” in the consolidated
statement of operations over the minimum remaining term of the
lease, which is two years from December 31, 2007.
As of December 31, 2007, certain of the Company’s
lease obligations were secured by $16.9 million outstanding
letters of credit under Patriot’s Credit Facility.
The income (loss) before income taxes and minority interests was
a loss of $102.1 million, income of $6.0 million, and
income of $34.8 million for the years ended
December 31, 2007, 2006 and 2005, respectively, and
consisted entirely of domestic results.
The income tax rate differed from the U.S. federal
statutory rate as follows:
Property, plant, equipment and mine development, leased coal
interests and advance royalties, principally due to differences
in depreciation, depletion and asset writedowns
162,092
159,284
Total gross deferred tax liabilities
162,092
159,284
Valuation allowance
(270,602
)
(498,083
)
Net deferred tax liability
$
—
$
—
Deferred taxes consisted of the following:
Current deferred income taxes
$
—
$
—
Noncurrent deferred income taxes
—
—
Net deferred tax liability
$
—
$
—
In June 2006, the FASB issued Interpretation No. 48,
“Accounting for Uncertainty in Income Taxes — an
interpretation of FASB Statement No. 109”
(FIN No. 48). This interpretation prescribes a
recognition threshold and measurement attribute for the
financial statement recognition and measurement of a tax
position taken or expected to be taken in a tax return.
FIN No. 48 also provides guidance on derecognition,
classification, interest and penalties, accounting in interim
periods, disclosure and transition.
Patriot adopted the provisions of FIN No. 48 on
January 1, 2007, with no impact to retained earnings. At
adoption and at December 31, 2007, the unrecognized tax
benefits in our consolidated financial statements were
immaterial, and if recognized, would not currently affect the
Company’s effective tax rate as any recognition would be
offset by valuation allowances. The Company does not expect any
significant increases or decreases to our unrecognized tax
benefits within 12 months of this reporting date.
Due to the immaterial nature of its unrecognized tax benefits
and the existence of net operating loss carryforwards, the
Company has not currently accrued interest on any of its
unrecognized tax benefits. The Company has considered the
application of penalties on its unrecognized tax benefits and
has determined, based on several factors, including the
existence of its net operating loss carryforwards, that no
accrual of penalties related to its unrecognized tax benefits is
required. If the accrual of interest or penalties becomes
appropriate, the Company will record an accrual as part of its
income tax provision.
As the Company has not yet filed any income tax returns as a
stand alone consolidated group, we have no income tax years
currently subject to audit by any tax jurisdiction. Patriot and
our subsidiaries are included
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS — (Continued)
in consolidated Peabody income tax returns prior to
November 1, 2007 and Peabody retains all liability related
to these returns.
The Company’s deferred tax assets included net operating
losses (NOL) carryforwards and alternative minimum tax (AMT)
credits of $20.3 million and $6.0 million as of
December 31, 2007 and 2006, respectively. The NOL’s
and AMT credits represent the amounts that are expected to be
apportioned to the Company in accordance with the Internal
Revenue Code and Treasury Regulations at the time of the
Company’s spin-off from Peabody on October 31, 2007,
as well as the stand-alone taxable income from the
Company’s operations for the last two months of calendar
year 2007. The NOL carryforwards begin to expire in 2019, and
the AMT credits have no expiration date.
Overall, the Company’s net deferred tax assets are offset
by a valuation allowance of $270.6 million and
$498.1 million as of December 31, 2007 and 2006,
respectively. The valuation allowance decreased by
$227.5 million for the year ended December 31, 2007
primarily as a result of Peabody agreeing to pay certain retiree
healthcare obligations related to the business of Patriot. The
Company evaluated and assessed the expected near-term
utilization of net operating loss carryforwards, book and
taxable income trends, available tax strategies and the overall
deferred tax position to determine the valuation allowance
required as of December 31, 2007 and 2006.
(11)
Long-Term
Debt
Patriot’s total indebtedness consisted of the following:
In conjunction with the exchange transaction involving the
acquisition of Illinois Basin coal reserves in 2005 discussed in
Note 4, the Company entered into Promissory Notes (the
Notes). The Notes and related interest are payable in annual
installments of $1.7 million beginning January 2008. The
Notes mature in January 2017. At December 31, 2007, the
short-term portion of the Notes was $0.9 million.
Notes
Payable
Notes Payable represented long-term debt outstanding of KE
Ventures, LLC. The Notes Payable were obligations with the
partners of the joint venture. All outstanding debt owed by KE
Ventures, LLC to its members was paid upon close of the
acquisition of 100% interest by Patriot.
(12)
Credit
Facility
In connection with the spin-off, Patriot entered into a
$500 million, four-year revolving credit facility, which
includes a $50 million swingline sub-facility and a letter
of credit sub-facility. The proceeds from this facility are
available for use by Patriot for working capital requirements,
capital expenditures and other corporate purposes. In connection
with the spin-off on October 31, 2007, Patriot’s
credit facility was utilized to replace certain Peabody letters
of credit and surety bonds that were in place as of the spin-off
date with respect to Patriot’s obligations. Patriot issued
$253.5 million in letters of credit against the credit
facility in connection with the spin-off, which remained
outstanding at December 31, 2007. As of December 31,2007,
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS — (Continued)
there was no outstanding debt balance on this credit facility
and availability under the credit facility was
$246.5 million.
The obligations under the credit facility are secured by a first
lien on substantially all of Patriot’s assets, including
but not limited to certain of its mines and coal reserves and
related fixtures and accounts receivable. The credit facility
contains certain customary covenants, including financial
covenants limiting the Company’s total indebtedness
(maximum leverage ratio of 2.75) and requiring minimum EBITDA
coverage of interest expense (minimum interest coverage ratio of
4.0), as well as contain certain limitations on, among other
things, additional debt, liens, investments, acquisitions and
capital expenditures, future dividends and asset sales. The
credit facility calls for quarterly reporting of compliance with
financial covenants, beginning with the period ended
March 31, 2008. The rolling four quarters compliance
calculation contains a phase-in provision for 2008. The terms of
the credit facility also contain certain customary events of
default, which give the lender the right to accelerate payments
of outstanding debt in certain circumstances. Customary events
of default include breach of covenants, failure to maintain
required ratios, failure to make principal payments or to make
interest or fee payments within a grace period, and default,
beyond any applicable grace period, on any of the Company’s
other indebtedness exceeding a certain amount.
The Company paid a commitment fee of $4.7 million on
commencement of the credit facility, which will be amortized
utilizing a method which approximates the effective interest
method over the remaining term of the agreement.
(13)
Asset
Retirement Obligations
Reconciliations of Patriot’s liability for asset retirement
obligations were as follows:
As of December 31, 2007, asset retirement obligations of
$134.4 million consisted of $102.7 million related to
locations with active mining operations and $31.7 million
related to locations that are closed or inactive. As of
December 31, 2006, asset retirement obligations of
$139.7 million consisted of $96.3 million related to
locations with active mining operations and $43.4 million
related to locations that are closed or inactive. The
credit-adjusted, risk-free interest rates were 6.60% and 6.16%
at January 1, 2007 and 2006, respectively.
For the years ended December 31, 2007 and 2006, the Company
recorded a $1.3 million and $1.2 million,
respectively, reduction in its asset retirement obligations and
expense associated with the disposal of non-strategic properties
and the assumption of the related reclamation liabilities by the
purchaser.
As of December 31, 2007 and 2006, Patriot had
$84.1 million and $85.5 million, respectively, in
surety bonds outstanding to secure the Company’s
reclamation obligations or activities. In addition, Patriot had
$61.9 million of letters of credit outstanding as of
December 31, 2007 to secure reclamation and other surety
obligations. No letters of credit were outstanding as of
December 31, 2006 related to reclamation activities. As of
December 31, 2007, Peabody had $19.9 million of self
bonding outstanding that related to Patriot’s
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS — (Continued)
reclamation obligations or activities. In 2008, these self bonds
will be replaced with Patriot surety bonds. As of
December 31, 2006, the amount of reclamation self bonding
in certain states in which the Company qualified was
$54.9 million.
(14)
Workers’
Compensation Obligations
Certain of Patriot’s operations are subject to the Federal
Coal Mine Health and Safety Act of 1969, and the related
workers’ compensation laws in the states in which the
Company operates. These laws require Patriot’s operations
to pay benefits for occupational disease resulting from coal
workers’ pneumoconiosis (occupational disease). Provisions
for occupational disease costs are based on determinations by
independent actuaries or claims administrators.
Patriot provides income replacement and medical treatment for
work related traumatic injury claims as required by applicable
state law. Provisions for estimated claims incurred are recorded
based on estimated loss rates applied to payroll and claim
reserves determined by independent actuaries or claims
administrators. Certain of the Company’s operations are
required to contribute to state workers’ compensation funds
for second injury and other costs incurred by the state fund
based on a payroll-based assessment by the applicable state.
Provisions are recorded based on the payroll-based assessment
criteria.
The workers’ compensation provision consists of the
following components:
The significant decline in traumatic workers’ compensation
costs was primarily driven by the impact of changes in
workers’ compensation law in West Virginia. Administrative
fees have been reduced as a result of successfully
self-administering, at a lower cost, claims that were previously
administered by the state. In addition, the law changes have
reduced the frequency and magnitude of claims.
The weighted-average assumptions used to determine the
workers’ compensation provision were as follows:
Workers’ compensation obligations consist of amounts
accrued for loss sensitive insurance premiums, uninsured claims,
and related taxes and assessments under black lung and traumatic
injury workers compensation programs.
Less current portion (included in Accrued expenses)
(23,778
)
(24,456
)
Noncurrent obligations (included in Workers’ compensation
obligations)
$
192,730
$
207,860
As a result of the adoption of SFAS No. 158 on
December 31, 2006, the accrued workers’ compensation
liability recorded on the consolidated balance sheet at
December 31, 2007 and 2006 reflects the accumulated benefit
obligation less any portion that is currently funded. The
accumulated actuarial gain that had not yet been reflected in
net periodic postretirement benefit costs were included in
“Accumulated other comprehensive gain” as follows:
As of December 31, 2007 and 2006, Patriot had
$183.8 million and $146.2 million, respectively, in
surety bonds and letters of credit outstanding to secure
workers’ compensation obligations.
The reconciliation of changes in the occupational disease
liability benefit obligation was as follows:
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS — (Continued)
The liability for occupational disease claims represents the
actuarially-determined present value of known claims and an
estimate of future claims that will be awarded to current and
former employees. The liability for occupational disease claims
was based on a discount rate of 6.4% and 6.0% at
December 31, 2007 and 2006, respectively. Traumatic injury
workers’ compensation obligations are estimated from both
case reserves and actuarial determinations of historical trends,
discounted at 5.8% and 5.9% as of December 31, 2007 and
2006, respectively.
Federal
Black Lung Excise Tax Refund Claims
In addition to the obligations discussed above, certain
subsidiaries of Patriot are required to pay black lung excise
taxes to the Federal Black Lung Trust Fund (the
Trust Fund). The Trust Fund pays occupational disease
benefits to entitled former miners who worked prior to
July 1, 1973. Excise taxes are based on the selling price
of coal, up to a maximum of $1.10 per ton for underground mines
and $0.55 per ton for surface mines. The Company had a
receivable for excise tax refunds of $19.4 million as of
December 31, 2006 related to a court ruling that excise
taxes paid in prior years on export coal was refundable to the
Company, which was included in “Investments and other
assets” in the consolidated balance sheet. In the fourth
quarter of 2007, Peabody monetized the receivable to Patriot as
part of the settlement at the time of spin-off.
(15)
Pension
and Savings Plans
Multi-Employer
Pension Plans
Certain subsidiaries participate in multi-employer pension plans
(the 1950 Plan and the 1974 Plan), which provide defined
benefits to substantially all hourly coal production workers
represented by the UMWA. Benefits under the UMWA plans are
computed based on service with the subsidiaries or other
signatory employers. The 1950 Benefit Plan and the 1974 Benefit
Plan qualify under SFAS No. 106 as multi-employer
benefit plans, which allows Patriot to recognize expense as
contributions are made. The expense related to these funds was
$6.9 million for the year ended December 31, 2007.
There were no contributions to the multi-employer pension plans
during the years ended December 31, 2006 or 2005. In
December 2006, the 2007 National Bituminous Coal Wage Agreement
was signed, which required funding of the 1974 Plan through 2011
under a phased funding schedule. The funding is based on an
hourly rate for certain UMWA workers. Under the labor contract,
the per-hour
funding rate increased to $2.00 in 2007 and increases each year
thereafter until reaching $5.50 in 2011. The Company expects to
pay approximately $11.2 million related to these funds in
2008.
Defined
Contribution Plans
Patriot sponsors employee retirement accounts under a 401(k)
plan for eligible salaried U.S. employees of the Company
(the 401(k) Plan). Patriot matches voluntary contributions to
the 401(k) Plan up to specified levels. Peabody also sponsored a
similar 401(k) plan in which eligible Patriot employees could
participate prior to the spin-off. The Company recognized
expense for these plans of $3.4 million, $5.6 million
and $2.5 million for the years ended December 31,2007, 2006 and 2005, respectively. A performance contribution
feature under both Patriot’s plan and Peabody’s plan
allows for additional contributions based upon meeting specified
performance targets. The performance contributions made to
Patriot employees were $0.6 million, $2.7 million and
$2.7 million for the years ended December 31, 2007,
2006 and 2005, respectively.
(16)
Postretirement
Healthcare Benefits
The Company currently provides healthcare and life insurance
benefits to qualifying salaried and hourly retirees and their
dependents from defined benefit plans established by Peabody and
continued by Patriot after the spin-off. Plan coverage for
health and life insurance benefits is provided to certain hourly
retirees in accordance with the applicable labor agreement.
Accumulated postretirement benefit obligation at beginning of
period
$
1,214,032
$
1,088,507
Service cost
981
599
Interest cost
65,964
62,385
Participant contributions
840
956
Plan amendments
11,687
10,166
Retention by Peabody of certain liabilities
(615,837
)
—
Benefits paid
(74,948
)
(81,984
)
Change in actuarial (gain) or loss
(47,971
)
133,403
Accumulated postretirement benefit obligation at end of period
554,748
1,214,032
Change in plan assets:
Fair value of plan assets at beginning of period
—
—
Employer contributions
74,108
81,028
Participant contributions
840
956
Benefits paid and administrative fees (net of Medicare
Part D reimbursements)
(74,948
)
(81,984
)
Fair value of plan assets at end of period
—
—
Accrued postretirement benefit obligation
(554,748
)
(1,214,032
)
Less current portion (included in Accrued expenses)
27,433
75,015
Noncurrent obligation (included in Accrued postretirement
benefit costs)
$
(527,315
)
$
(1,139,017
)
Peabody assumed certain of the Company’s retiree healthcare
liabilities in the aggregate amount of $603.4 million as of
December 31, 2007 which are not included above. These
liabilities included certain obligations under the Coal Act for
which Peabody and Patriot are jointly and severally liable,
obligations under the 2007 National Bituminous Coal Wage Act for
which the Company is secondarily liable, and obligations for
certain active, vested employees of the Company.
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS — (Continued)
The Company amortizes actuarial gains and losses using a 0%
corridor with an amortization period that covers the average
remaining service period of active employees (6.47 years
and 8.47 years at January 1, 2007 and 2006,
respectively). The estimated net actuarial loss and prior
service cost that will be amortized from accumulated other
comprehensive income (loss) into net periodic postretirement
benefit costs during the year ending December 31, 2008 are
amortization loss of $13.0 million and amortization gain of
$0.7 million, respectively.
As a result of the adoption of SFAS No. 158 on
December 31, 2006, the accrued postretirement benefit
liability recorded on the consolidated balance sheet at
December 31, 2007 and 2006 reflects the accumulated
postretirement benefit obligation less any portion that is
currently funded. The accumulated actuarial loss and prior
service costs that had not yet been reflected in net periodic
postretirement benefit costs were included in “Accumulated
other comprehensive loss” as follows:
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS — (Continued)
Assumed healthcare cost trend rates have a significant effect on
the amounts reported for healthcare plans. A one
percentage-point change in the assumed healthcare cost trend
would have the following effects:
+1.0%
−1.0%
(Dollars in thousands)
Effect on total service and interest cost components for 2007
$
8,163
$
(7,494
)
Effect on year-end 2007 postretirement benefit obligation
66,450
(60,983
)
Plan
Assets
The Company’s postretirement benefit plans are unfunded.
Estimated
Future Benefits Payments
The following benefit payments (net of retiree contributions),
which reflect expected future service, as appropriate, are
expected to be paid by Patriot:
Postretirement
Benefits
(Dollars in thousands)
2008
$
27,433
2009
30,685
2010
34,275
2011
37,950
2012
43,721
Years
2013-2017
245,715
Medicare
and Other Plan Changes
Effective January 1, 2007, the Company entered into a new
labor relations agreement for our UMWA represented employees in
Appalachia. The provisions of the new agreement mirror the 2007
National Bituminous Coal Wage Agreement and resulted in an
actuarially determined projected increase in healthcare costs of
$11.7 million primarily in relation to the elimination of
certain deductibles.
Effective November 15, 2006, the medical premium
reimbursement plan was changed for salaried employees who
retired after December 31, 2004. The amendment resulted in
a $9.5 million increase to the retiree healthcare
liability. The Company began recognizing the effect of the plan
amendment over 10.25 years beginning November 15,2006. The effect was $0.9 million and $0.1 million for
the years ended December 31, 2007 and 2006, respectively.
Multi-Employer
Benefit Plans
Retirees formerly employed by certain subsidiaries and their
predecessors, who were members of the UMWA, last worked before
January 1, 1976 and were receiving health benefits on
July 20, 1992, receive health benefits provided by the
Combined Fund, a fund created by the Coal Act. The Coal Act
requires former employers (including certain entities of the
Company) and their affiliates to contribute to the Combined Fund
according to a formula.
The Company has recorded an actuarially determined liability
representing the amounts anticipated to be due to the Combined
Fund. The noncurrent portion related to this obligation as
reflected in “Obligation to industry fund” in the
consolidated balance sheets as of December 31, 2007 and
2006, was $31.1 million and $25.6 million,
respectively. The current portion related to this obligation
reflected in “Accrued expenses” in the consolidated
balance sheets was $5.2 million as of December 31,2007 and 2006.
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS — (Continued)
Expense of $2.9 million was recognized related to the
Combined Fund for the year ended December 31, 2007, and
consisted of interest discount of $2.3 million and
amortization of actuarial loss of $0.6 million. Expense of
$2.5 million was recognized related to the Combined Fund
for the year ended December 31, 2006, and consisted of
interest discount of $2.4 million and amortization of
actuarial loss of $0.1 million. Expense of
$0.9 million was recognized related to the Combined Fund
for the year ended December 31, 2005, and consisted of
interest discount of $1.9 million and amortization of
actuarial gain of $1.0 million. The Company made payments
of $5.5 million, $8.3 million and $4.0 million to
the Combined Fund for the years ended December 31, 2007,
2006 and 2005, respectively.
As a result of the adoption of SFAS No. 158 on
December 31, 2006, the obligation to industry fund recorded
on the consolidated balance sheet at December 31, 2007 and
2006 reflects the obligation less any portion that is currently
funded. The accumulated actuarial gain that had not yet been
reflected in expense of $0.6 million was included in
“Accumulated other comprehensive loss”.
The Coal Act also established the 1992 Benefit Plan, which
provides medical and death benefits to persons who are not
eligible for the Combined Fund, who retired prior to
October 1, 1994 and whose employer and any affiliates are
no longer in business. A prior national labor agreement
established the 1993 Benefit Plan to provide health benefits for
retired miners not covered by the Coal Act. The 1993 Benefit
Plan provides benefits to qualifying retired former employees,
who retired after September 30, 1994, of certain signatory
companies which have gone out of business and defaulted in
providing their former employees with retiree medical benefits.
Beneficiaries continue to be added to this fund as employers go
out of business. The 1992 Benefit Plan and the 1993 Benefit Plan
qualify under SFAS No. 106 as multi-employer benefit
plans, which allows the Company to recognize expense as
contributions are made. The expense related to these funds was
$15.9 million, $6.9 million and $4.8 million for
the years ended December 31, 2007, 2006 and 2005,
respectively. The Company expects to pay $10.9 million in
2008 related to these funds.
The Surface Mining Control and Reclamation Act of 2006 (the 2006
Act), enacted in December 2006, amended the federal laws
establishing the Combined Fund, 1992 Benefit Plan and the 1993
Benefit Plan. Among other things, the 2006 Act guarantees full
funding of all beneficiaries in the Combined Fund, provides
funds on a phased-in basis for the 1992 Benefit Plan, and
authorizes the trustees of the 1993 Benefit Plan to determine
the contribution rates through 2010 for pre-2007 beneficiaries.
The new and additional federal expenditures to the Combined
Fund, 1992 Benefit Plan, 1993 Benefit Plan and certain Abandoned
Mine Land payments to the states and Indian tribes are
collectively limited by an aggregate annual cap of
$490 million. To the extent that (i) the annual
funding of the programs exceeds this amount (plus the amount of
interest from the Abandoned Mine Land trust fund paid with
respect to the Combined Benefit Fund), and (ii) Congress
does not allocate additional funds to cover the shortfall,
contributing employers and affiliates, including some of the
Company’s entities, would be responsible for the additional
costs.
Pursuant to the provisions of the Coal Act and the 1992 Benefit
Plan, the Company was required to provide security in an amount
equal to three times the annual cost of providing healthcare
benefits for all individuals receiving benefits from the 1992
Benefit Plan who are attributable to the Company, plus all
individuals receiving benefits from an individual employer plan
maintained by the Company who are entitled to receive such
benefits. Beginning in 2007, the amount of security the Company
was required to provide for the 1992 Benefit Plan was reduced to
one times the annual cost to provide the above mentioned
healthcare benefits.
(17)
Related
Party Transactions
Pre-spin-off
relationship with Peabody
Prior to the spin-off, Patriot routinely entered into
transactions with Peabody and its affiliates. The terms of these
transactions were outlined in agreements executed by Peabody and
its affiliates. The amounts included in “Net receivable
from former affiliates” reflected the effects of the
related party transactions, which
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS — (Continued)
had not been settled by cash payments, as well as temporary cash
advances to and from affiliated companies. The following
agreements/transactions with Peabody impacted our results of
operations, financial condition and cash flows prior to the
spin-off on October 31, 2007:
The Company sold 21.6 million tons of coal resulting in
revenues of $1.03 billion for the year ended
December 31, 2007 (includes two months of post-spin
activity); 24.3 million tons of coal resulting in revenues
of $1.13 billion for the year ended December 31, 2006;
and 21.5 million tons of coal resulting in revenues of
$891.2 million for the year ended December 31, 2005 to
a marketing affiliate of Peabody, who negotiated and maintained
coal sales contracts. These sales were made at prices paid by
outside third-party customers. Receivables related to sales
transactions with Peabody were included in “Net receivable
from former affiliates” on the consolidated balance sheet
prior to the spin-off.
Selling and administrative expenses include $37.3 million,
$47.9 million, and $57.1 million for the years ended
December 31, 2007, 2006, and 2005, respectively, for
services provided by Peabody and its affiliates prior to our
spin-off. These selling and administrative expenses represented
an allocation of Peabody general corporate expenses to all of
its mining operations, both foreign and domestic, based on
principal activity, headcount, tons sold and revenues as
applicable to the specific expense being allocated. The
allocated expenses generally reflected service costs for
marketing and sales, legal, finance and treasury, public
relations, human resources, environmental engineering and
internal audit. Different allocation bases or methods could have
been used and could have resulted in significantly different
operating results. The services fees incurred by the Company are
not necessarily indicative of the selling and administrative
expenses that would have been incurred if the Company had been
an independent entity.
The Company recognized interest expense of $4.1 million,
$5.0 million and $5.0 million for the years ended
December 31, 2007, 2006 and 2005, respectively, related to
a $62.0 million demand note payable to Peabody, which
reflected interest at 8.0%. In connection with the spin-off,
this note was forgiven by Peabody.
In 2007 and 2006, the Company received contributions from
Peabody of $43.6 million and $44.5 million,
respectively, primarily for the funding of acquisitions. In
2005, one of the Company’s entities received a
$766.7 million non-cash dividend from a Peabody subsidiary
that was not included in the spin-off.
In June 2007, Peabody exchanged numerous oil and gas rights and
assets owned throughout its operations, including some owned by
Patriot, for coal reserves in West Virginia and Kentucky.
Peabody did not allocate gain recognized from this transaction
to Patriot but contributed to Patriot approximately
28 million tons of West Virginia coal reserves. These
reserves are located in the Pittsburgh coal seam adjacent to
Patriot’s Federal No. 2 mining operations and were
valued at $45.2 million.
Spin-off
and subsequent periods
On October 31, 2007, at the spin-off of Patriot from
Peabody, the Company received a net contribution from Peabody of
$781.3 million, which reflected the following:
•
retention by Peabody of certain retiree healthcare liabilities
of $615.8 million;
•
the forgiveness of the outstanding intercompany payables to
Peabody on October 31, 2007 of $81.5 million;
•
the retention by Patriot of trade accounts receivable at
October 31, 2007, previously recorded through intercompany
receivables, of $68.6 million;
•
a $30.0 million cash contribution;
•
the retention by Peabody of assets and asset retirement
obligations related to certain Midwest mining operations of a
net $8.1 million;
•
less the transfer of intangible assets of $22.7 million to
Peabody from Patriot related to purchased contract rights for a
supply contract retained by Peabody.
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS — (Continued)
As part of the separation agreement with Peabody, Peabody funded
a portion of Patriot’s credit facility origination fees and
various legal fees related to the spin-off totaling
$7.1 million. In the fourth quarter of 2007, Peabody
monetized a receivable related to excise tax refunds of
$19.4 million as part of the settlement at the time of
spin-off.
After the spin-off, the Company continues to supply coal to
Peabody to satisfy third-party contracts. With the exception of
one contract, all sales were made at prices paid by outside
third-party customers. After the spin-off, all sales
transactions with Peabody are reflected in “Accounts
receivable and other”.
Patriot entered into certain agreements with Peabody to provide
certain transition services following the spin-off. Peabody
continues to provide support to Patriot, including services
related to information technology, certain accounting services,
engineering, geology, land management and environmental
services. The Company paid $0.9 million to Peabody in
November and December 2007 for transition services.
(18)
Guarantees
In the normal course of business, Patriot is a party to
guarantees and financial instruments with off-balance-sheet
risk, such as bank letters of credit, performance or surety
bonds and other guarantees and indemnities, which are not
reflected in the accompanying consolidated balance sheet. These
financial instruments are valued based on the amount of exposure
under the instrument and the likelihood of required performance.
In Patriot’s past experience, virtually no claims have been
made against these financial instruments. Management does not
expect any material losses to result from these guarantees or
off-balance-sheet instruments.
Letters
of Credit and Bonding
The Company’s letters of credit and surety bonds in support
of the Company’s reclamation, lease, workers’
compensation and other obligations were as follows as of
December 31, 2007:
Workers’
Reclamation
Lease
Compensation
Obligations
Obligations
Obligations
Other(1)
Total
(Dollars in thousands)
Surety Bonds
$
84,109
$
—
$
12,961
$
12,030
$
109,100
Letters of Credit
61,883
16,949
170,844
3,871
253,547
$
145,992
$
16,949
$
183,805
$
15,901
$
362,647
(1)
Other includes letters of credit and surety bonds related to
collateral for surety companies and bank guarantees, road
maintenance and performance guarantees.
Additionally, as of December 31, 2007. Peabody continued to
guarantee certain bonds (self bonding) related to Patriot
liabilities that have not yet been replaced by Patriot surety
bonds. As of December 31, 2007, Peabody self bonding
related to Patriot liabilities aggregated $22.8 million, of
which $19.9 was for post-mining reclamation and
$2.9 million was for other obligations. Patriot expects to
replace these Peabody self bonds in 2008.
Other
Guarantees
In connection with the exchange transaction involving the
acquisition of Illinois Basin coal reserves discussed in
Note 4, the Company guaranteed bonding for a partnership in
which it formerly held an interest. The aggregate amount
guaranteed by the Company was $2.8 million, and the fair
value of the guarantee recognized as a liability was
$0.4 million as of December 31, 2007. The
Company’s obligation under the guarantee extends to
September 2015.
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS — (Continued)
Patriot is the lessee under numerous equipment and property
leases. It is common in such commercial lease transactions for
Patriot, as the lessee, to agree to indemnify the lessor for the
value of the property or equipment leased, should the property
be damaged or lost during the course of Patriot’s
operations. Patriot expects that losses with respect to leased
property would be covered by insurance (subject to deductibles).
Patriot and certain of its subsidiaries have guaranteed other
subsidiaries’ performance under their various lease
obligations. Aside from indemnification of the lessor for the
value of the property leased, Patriot’s maximum potential
obligations under their leases are equal to the respective
future minimum lease payments, assuming no amounts could be
recovered from third parties.
(19)
Commitments
and Contingencies
Commitments
As of December 31, 2007, purchase commitments for capital
expenditures were $6.3 million. Commitments for
expenditures to be made under coal leases are reflected in
Note 8.
Other
At times Patriot becomes a party to other claims, lawsuits,
arbitration proceedings and administrative procedures in the
ordinary course of business. Management believes that the
ultimate resolution of such other pending or threatened
proceedings is not reasonably likely to have a material effect
on Patriot’s consolidated financial position, results of
operation or liquidity.
(20)
Segment
Information
Patriot reports its operations through two reportable operating
segments, Appalachia and Illinois Basin. The Appalachia and
Illinois Basin segments consist of Patriot’s mining
operations in West Virginia and Kentucky, respectively. The
principal business of the Appalachia segment is the mining,
preparation and sale of thermal coal, sold primarily to electric
utilities and metallurgical coal, sold to steel and coke
producers. The principal business of the Illinois Basin segment
is the mining, preparation and sale of thermal coal, sold
primarily to electric utilities. For the year ended
December 31, 2007, 77% of Patriot’s sales were to
electricity generators and 23% to steel and coke producers. For
the years ended December 31, 2007 and 2006, Patriot’s
revenues attributable to foreign countries, based on where the
product was shipped, were $120.8 million and
$142.0 million, respectively. Patriot’s operations are
characterized by primarily underground mining methods, coal with
high and medium Btu content and relatively short shipping
distances from the mine to the customer. “Corporate and
Other” includes selling and administrative expenses, net
gains on asset disposals and costs associated with past mining
obligations.
Patriot’s chief operating decision makers use Adjusted
EBITDA as the primary measure of segment profit and loss.
Consolidated Adjusted EBITDA is defined as net income (loss)
before deducting net interest expense, income taxes, minority
interests, asset retirement obligation expense and depreciation,
depletion and amortization. Segment Adjusted EBITDA also
excludes past mining obligation expense, including retiree
healthcare and workers’ compensation expenses related to
non-operating locations. Total assets are not separately
identified as part of the financial information provided to the
chief operating decision makers and therefore, not disclosed
herein.
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS — (Continued)
(21)
Stockholders’
Equity
Common
Stock
On October 31, 2007, the spin-off of Patriot from Peabody
was completed and holders of Peabody common stock received a
dividend of one share of Patriot common stock for each ten
shares of Peabody common stock that they owned, resulting in
total outstanding shares of 26,570,940 as of October 31,2007. The Company has 100 million authorized shares of
$0.01 par value common stock. Each share of common stock
will be entitled to one vote in the election of directors and
all other matters submitted to stockholder vote. Except as
otherwise required by law or provided in any resolution adopted
by the Board of Directors with respect to any series of
preferred stock, the holders of common stock will possess all
voting power. The holders of common stock do not have cumulative
voting rights. In general, all matters submitted to a meeting of
stockholders, other than as described below, shall be decided by
vote of a majority of the shares of Patriot’s common stock.
Directors are elected by a plurality of the shares of
Patriot’s common stock.
Subject to preferences that may be applicable to any series of
preferred stock, the owners of Patriot’s common stock may
receive dividends when declared by the Board of Directors.
Common stockholders will share equally in the distribution of
all assets remaining after payment to creditors and preferred
stockholders upon liquidation, dissolution or winding up of the
Company, whether voluntarily or not. The common stock will have
no preemptive or similar rights.
The following table summarizes common share activity from
spin-off date to December 31, 2007:
In addition to the common stock, the Board of Directors is
authorized to issue up to 10 million shares of
$0.01 par value preferred stock. The authorized preferred
shares include one million shares of Series A Junior
Participating Preferred Stock. Patriot’s certificate of
incorporation authorizes the Board of Directors, without the
approval of the stockholders, to fix the designation, powers,
preferences and rights of one or more series of preferred stock,
which may be greater than those of the common stock. Patriot
believes that the ability of the Board to issue one or more
series of preferred stock will provide the Company with
flexibility in structuring possible future financings and
acquisitions and in meeting other corporate needs that might
arise. The issuance of shares of preferred stock, or the
issuance of rights to purchase shares of preferred stock, could
be used to discourage an unsolicited acquisition proposal. There
were no outstanding shares of preferred stock as of
December 31, 2007.
Preferred
Share Purchase Rights Plan and Series A Junior
Participating Preferred Stock
The Board of Directors of Patriot adopted a stockholders rights
plan pursuant to the Rights Agreement with American Stock
Transfer & Trust Company (the Rights Agreement).
In connection with the Rights Agreement, on October 31,2007, the Company filed the Certificate of Designations of
Series A Junior Participating Preferred Stock (the
Certificate of Designations) with the Secretary of State of the
State of Delaware. Pursuant to the Certificate of Designations,
the Company designated 1,000,000 shares of preferred stock
as Series A Junior Participating Preferred Stock having the
designations, rights, preferences and limitations set forth in
the Rights Agreement. Each preferred share purchase right
represents the right to purchase one one-hundredth of a share of
Series A Junior Participating Preferred Stock.
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS — (Continued)
The rights have certain anti-takeover effects. If the rights
become exercisable, the rights will cause substantial dilution
to a person or group that attempts to acquire Patriot on terms
not approved by the Board of Directors, except pursuant to any
offer conditioned on a substantial number of rights being
acquired. The rights should not interfere with any merger or
other business combination approved by the Board since the
rights may be redeemed by the Company at a nominal price prior
to the time that a person or group has acquired beneficial
ownership of 15% or more of common stock. Thus, the rights are
intended to encourage persons who may seek to acquire control of
the Company to initiate such an acquisition through negotiations
with the Board. However, the effect of the rights may be to
discourage a third party from making a partial tender offer or
otherwise attempting to obtain a substantial equity position in
Patriot’s equity securities or seeking to obtain control of
the Company. To the extent any potential acquirers are deterred
by the rights, the rights may have the effect of preserving
incumbent management in office. There were no outstanding shares
of Series A Junior Participating Preferred Stock as of
December 31, 2007.
(22)
Stock-Based
Compensation
The Company has one equity incentive plan for employees and
non-employee directors that allows for the issuance of
share-based compensation in the form of restricted stock,
incentive stock options, nonqualified stock options, stock
appreciation rights, performance awards, restricted stock units
and deferred stock units. Members of the Company’s Board of
Directors are eligible for deferred stock unit grants at the
date of their election and annually. This plan made
2.6 million shares of the Company’s common stock
available for grant, with 1.2 million shares available for
grant as of December 31, 2007. Additionally, the Company
established an employee stock purchase plan that provided for
the purchase of up to 1.0 million shares of the
Company’s common stock.
Restricted
Stock
In connection with the spin-off, the Company approved a form of
Restricted Stock Agreement for grants to employees and service
providers of Patriot and its subsidiaries and affiliates. On
November 1, 2007, 187,828 shares were granted at
$37.50 per share. The agreement provides that the restricted
stock will fully vest on the third anniversary of the date the
restricted stock was granted to the employee or service
provider. However, the restricted stock will fully vest sooner
if a grantee terminates employment with or stops providing
services to Patriot because of death or disability, or if a
change in control occurs (as such term is defined in the Patriot
Coal Corporation 2007 Long-Term Equity Incentive Plan (the
Equity Plan)).
Extended
Long-Term Incentive Restricted Stock Units
In connection with the spin-off, the Company approved a form of
Extended Long-Term Incentive Restricted Stock Units Agreement
for grants to employees and service providers of Patriot. The
agreement grants restricted stock units that vest over time as
well as restricted stock units that vest based upon
Patriot’s financial performance. On November 1, 2007,
restricted stock units totaling 590,131 were granted at $37.50
per unit. The restricted stock units that vest over time will be
50% vested on the fifth anniversary of the date of grant, 75%
vested on the sixth such anniversary and 100% vested on the
seventh such anniversary. However, the restricted stock units
that vest over time will fully vest sooner if a grantee
terminates employment with or stops providing services to
Patriot because of death or disability, or if a change in
control occurs (as such term is defined in the Equity Plan). The
restricted stock units that vest according to Patriot’s
financial performance vest according to a formula described in
the form of Extended Long-Term Incentive Restricted Stock Units
Agreement, the results of which are calculated on the December
31 following the fifth, sixth and seventh anniversaries of the
grant date. The Company estimated the number of
performance-based units that are expected to vest and utilized
this amount in the calculation of the stock-based compensation
expense related to these awards. Any changes to this estimate
will impact stock-based compensation expense in the period the
estimate is changed.
In connection with the spin-off, the Company approved a form of
Extended Long-Term Incentive Non-Qualified Stock Option
Agreement for grants to employees and service providers of
Patriot. On November 1, 2007, options totaling 554,673 were
granted at an exercise price of $37.50. The agreement provides
that the option will become exercisable in three installments.
The option shall be 50% exercisable on the fifth anniversary of
the date of grant, 75% exercisable on the sixth such anniversary
and 100% exercisable on the seventh such anniversary. However,
the option will become fully exercisable sooner if a grantee
terminates employment with or stops providing services to
Patriot because of death or disability, or if a change in
control occurs (as such term is defined in the Equity Plan). No
option can be exercised more than ten years after the date of
grant, but the ability to exercise the option may terminate
sooner upon the occurrence of certain events detailed in the
form extended Long-Term Incentive Non-Qualified Stock Option
Agreement. Each award will be forfeited if the grantee
terminates employment with or stops providing services to
Patriot for any reason other than death or disability prior to
the time the award becomes vested.
The Company recognizes share-based compensation expense in
accordance with SFAS No. 123(R), “Share-Based
Payment”. The Company used the Black-Scholes option pricing
model to determine the fair value of stock options. Determining
the fair value of share-based awards requires judgment,
including estimating the expected term that stock options will
be outstanding prior to exercise and the associated volatility.
Judgment is also required in estimating the amount of
share-based awards expected to be forfeited prior to vesting. If
actual forfeitures differ significantly from these estimates,
share-based compensation expense could be materially impacted.
The Company utilized U.S. Treasury yields as of the grant
date for its risk-free interest rate assumption, matching the
treasury yield terms to the expected life of the option or
vesting period of the performance unit awards. The Company
utilized a seven-year peer historical lookback to develop its
expected volatility. Expected option life assumptions were
developed by taking the weighted average time to vest plus the
weighted average holding period after vesting.
On November 1, 2007, stock options representing
554,673 shares were granted with an exercise price of
$37.50. No shares were exercised, forfeited or expired. The
weighted average remaining contractual term in years is
10 years.
Share-based compensation expense of $1.3 million was
recorded in “Selling and administrative expenses” in
the consolidated statements of operations at December 31,2007. Share-based compensation expense included
$0.3 million related to awards from restricted stock and
stock options granted by Peabody to Patriot employees prior to
spin-off. As of December 31, 2007, the total unrecognized
compensation cost related to nonvested awards granted after
spin-off was $8.3 million, net of taxes, which is expected
to be recognized over 7 years. As of December 31,2007, the total unrecognized compensation cost related to
nonvested awards granted by Peabody prior to spin-off was
$3.2 million, net of taxes, which is expected to be
recognized through 2011.
Deferred
Stock Units
In connection with the spin-off, the Company approved a form of
Deferred Stock Units Agreement for grants to non-employee
directors of Patriot. On November 1, 2007,
18,670 units were granted at $37.50. The agreement provides
that the deferred stock units will fully vest on the first
anniversary of the date of grant, but
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS — (Continued)
only if the non-employee director served as a director for the
entire one-year period between the date of grant and the first
anniversary of the grant. However, the deferred stock units will
fully vest sooner if a non-employee director ceases to be a
Patriot director due to death or disability, or if a change in
control occurs (as such term is defined in the Equity Plan). Any
unvested deferred stock units will be forfeited if a
non-employee director terminates service with Patriot for any
reason other than death or disability prior to the first
anniversary of the grant date. After vesting, the deferred stock
units will be settled by issuing shares of Patriot common stock
equal to the number of deferred stock units, and the settlement
will occur upon the earlier of (i) the non-employee
director’s termination of service as a director or
(ii) the third anniversary of the grant date or a different
date chosen by the non-employee director, provided the date was
chosen by the non-employee director prior to January 1 of the
year in which the director received the grant.
Employee
Stock Purchase Plan
Based on the Company’s employee stock purchase plan,
eligible full-time and part-time employees are able to
contribute up to 15% of their base compensation into this plan,
subject to a limit of $25,000 per person per year. Effective
January 1, 2008, employees are able to purchase Company
common stock at a 15% discount to the lower of the fair market
value of the Company’s common stock on the initial or final
trading dates of each six-month offering period. Offering
periods begin on January 1 and July 1 of each year. The fair
value of the six-month “look-back” option in the
Company’s employee stock purchase plan is estimated by
adding the fair value of 0.15 of one share of stock to the fair
value of 0.85 of an option on one share of stock. The Company
recognized no expense for the year ended December 31, 2007
related to its employee stock purchase plan.
(23)
Summary
Quarterly Financial Information (Unaudited)
A summary of the unaudited quarterly results of operations for
the years ended December 31, 2007 and 2006, is presented
below. Patriot common stock is listed on the New York Stock
Exchange under the symbol “PCX.”
We have audited the accompanying consolidated balance sheets of
Magnum Coal Company and subsidiaries (the Company) as of
December 31, 2007 and 2006, and the related consolidated
statements of operations, stockholders’ equity, and cash
flows for the years then ended and for the period from inception
(October 5, 2005) to December 31, 2005. We have
also audited the accompanying combined statement of operations,
owner’s equity, and cash flows of the Arch Properties
(formerly wholly owned by Arch Coal, Inc.), predecessor to
Magnum Coal Company, for the year ended December 31, 2005.
These financial statements are the responsibility of the
Company’s and Arch Properties’ management. Our
responsibility is to express an opinion on these financial
statements based on our audits.
We conducted our audits in accordance with auditing standards
generally accepted in the United States. Those standards require
that we plan and perform the audit to obtain reasonable
assurance about whether the financial statements are free of
material misstatement. We were not engaged to perform an audit
of the Company’s or Arch Properties’ internal control
over financial reporting. Our audits included consideration of
internal control over financial reporting as a basis for
designing audit procedures that are appropriate in the
circumstances, but not for the purpose of expressing an opinion
on the effectiveness of the Company’s or Arch
Properties’ internal control over financial reporting.
Accordingly, we express no such opinion. An audit also includes
examining, on a test basis, evidence supporting the amounts and
disclosures in the financial statements, assessing the
accounting principles used and significant estimates made by
management, and evaluating the overall financial statement
presentation. We believe that our audits provide a reasonable
basis for our opinion.
In our opinion, the financial statements referred to above
present fairly, in all material respects, the consolidated
financial position of Magnum Coal Company and subsidiaries at
December 31, 2007 and 2006, and the consolidated results of
their operations and their cash flows for the years then ended,
and for the period from inception (October 5, 2005) to
December 31, 2005, and the combined results of operations
of the Arch Properties (predecessor) and its combined cash flows
for the year ended December 31, 2005, in conformity with
U.S. generally accepted accounting principles.
As more fully described in Note 2 to the consolidated
financial statements, in 2007 the Company changed its method of
accounting for pension and post retirement benefits.
Common stock — $0.01 per share par value;
52,200,000 shares authorized, 51,675,226 shares
issued, and 49,718,206 shares outstanding as of
December 31, 2007, and 52,200,000 shares authorized,
51,675,226 shares issued, and 49,200,000 shares
outstanding as of December 31, 2006
Magnum Coal Company (the Company) was formed by ArcLight Energy
Partners Fund I L.P. (ArcLight) on October 5, 2005, to
acquire certain properties from Arch Coal, Inc. (Arch), Trout
Coal Holdings, LLC (Trout), Dakota, LLC (Dakota), and the labor
companies associated with Trout and Dakota.
On December 31, 2005, the Company purchased three operating
subsidiaries and four associated mining complexes from Arch
(Arch Properties), located in West Virginia’s Central
Appalachian region. The three operating subsidiaries are Hobet
Mining, LLC, Apogee Coal Company, LLC and Catenary Coal Company,
LLC, which include the Hobet 21, Arch of West Virginia, Samples,
and Campbell’s Creek mining complexes. The mining complexes
consist of three surface mines and six underground mines. Along
with these mining complexes, the Company purchased all of the
equity interests in Robin Land Company, LLC, which owned and
controlled certain properties and mineral reserves used by the
operating subsidiaries, and TC Sales Company, LLC, which owned
certain customer coal supply agreements (see Note 3 for
further detail regarding this acquisition).
On March 21, 2006, as part of a recapitalization of the
Company, ArcLight and Timothy Elliott (Elliott) contributed 100%
of their equity interests in Trout, Dakota, and Elliott-owned
labor companies to the Company in exchange for common stock of
the Company.
Trout had four mining operations, which included Panther, LLC,
Jupiter Holdings, LLC, Remington LLC, and Wildcat, LLC. The
mining complexes consist of three surface mines and three
underground mines. Along with the mining complexes, Trout also
operated Little Creek Dock, LLC, which provides coal barge
loading access. Dakota consisted of one underground mine (see
Note 3 for further detail regarding this combination).
Prior to March 21, 2006, Elliott held 100% ownership of
labor companies being used by the Dakota and Trout mining
complexes. The labor companies included Coal Clean LLC, Day LLC,
Highwall Mining LLC, IO Coal LLC, Pond Fork Processing LLC,
Speed Mining LLC, Thunderhill Coal LLC, and Weatherby Processing
LLC (Labor Companies) (see Note 3 for further detail
regarding this acquisition).
With the contribution of Trout, Dakota, and the Labor
Companies’ equity, the Company received an additional
equity contribution from investors of approximately
$435 million along with $200 million of funding from a
new credit facility. After the recapitalization, ArcLight and
ArcLight Energy Partners Fund II L.P. (ArcLight
II) owned 54.4% of the Company.
The consolidated financial statements include the accounts of
the Company and its subsidiaries as of December 31, 2007
and 2006, and the results of their operations and cash flows for
the years then ended, and period from inception (October 5,2005) through December 31, 2005. The result of
operations and cash flows for the Company’s predecessor,
Arch Properties, are included for the year ended
December 31, 2005. Arch Properties is the predecessor of
the Company because it represented the major portion of the
business and the assets of the Company. The predecessor’s
financial statements are not those of a legal entity. Arch
Properties did not maintain stand-alone headquarters, treasury,
legal, tax, and other similar corporate support functions.
Therefore, expenses for selling, general, and administrative
expenses were allocated to the Arch Properties from Arch, their
former parent. These allocations were based on Arch’s best
estimates of proportional costs of Arch or incremental costs as
a stand-alone entity, whichever was more representative of costs
incurred by Arch on behalf of the Arch Properties. Interest
expense was allocated to the Arch Properties from Arch in a
similar fashion. The Arch Properties were included in federal
and state income tax returns as part of the Arch consolidated
group. For purposes of the historical financial statements of
the Arch Properties, the federal and state income taxes
attributable to the Arch Properties were calculated on a
stand-alone basis.
Notes to
Consolidated Financial
Statements — (Continued)
2.
Significant
Accounting Policies
Accounting
Estimates
The preparation of financial statements in conformity with
accounting principles generally accepted in the United States
requires management to make estimates and assumptions that
affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of
the financial statements and the reported amounts of revenues
and expenses during the reporting period. Actual results could
differ from these estimates. The most significant estimates
included in the preparation of the financial statements are
related to mining rights, above and below market coal sales
supply contracts, other postretirement benefits, coal
workers’ pneumoconiosis (black lung), reclamation and mine
closure liabilities, contingencies, deferred tax assets and
liabilities, and mine development costs.
Discontinued
Operations
The Company classifies items within discontinued operations in
the consolidated statements of operations when the operations
and cash flows of a particular component (defined as operations
and cash flows that can be clearly distinguished, operationally
and for financial reporting purposes, from the rest of the
entity) of the Company have been eliminated from the ongoing
operations of the Company as a result of a plan by the Company
to no longer have any significant continuing involvement in the
operations. In May 2006, the Company decided to discontinue the
mining operations of Dakota. Discontinued operations for the
years ended December 31, 2007 and 2006, reflect
$3.8 million and $15.6 million losses, respectively,
related to Dakota (see Note 13).
Cash
and Cash Equivalents
Cash and cash equivalents are stated at cost. Cash equivalents
consist of cash on deposit with banks and highly liquid
investments with an original maturity of three months or less
when purchased.
Reclamation
Escrow Accounts
Investments in debt securities and certain equity securities
with readily determinable fair values in reclamation escrow
accounts are purchased with the intention of realizing
short-term profits and are considered trading securities,
carried at the individual securities’ fair values at
December 31, 2007 and 2006.
Investments in the escrow accounts are primarily company stocks
and money market accounts. Reclamation escrow accounts are
included in other noncurrent assets on the balance sheet and are
carried at fair value, with gains and losses included in
interest expense, net of interest income. At December 31,2007, reclamation escrow accounts were $4.4 million and net
gains of $0.1 million were recorded in 2007. At
December 31, 2006, reclamation escrow accounts were
$3.6 million and net gains of $0.1 million were
recorded in 2006. There were no such activities in 2005.
Deferred
Financing Costs
The Company capitalizes costs incurred in connection with
borrowings on credit facility. These costs are amortized as an
adjustment to interest expense over the term of the credit
facility using the effective interest method. Deferred financing
costs were $0.9 million and $0.6 million at
December 31, 2007 and 2006, respectively. These deferred
financing cost amounts are recorded in other noncurrent assets
on the balance sheet.
Notes to
Consolidated Financial
Statements — (Continued)
Revenue
Recognition and Accounts Receivable
Revenue and related trade accounts receivable arising from
production and sale of coal under the Company’s coal sales
contracts are recognized when the coal is delivered either by
truck or by rail to an
agreed-upon
destination, and the title has passed to the customer as
specified in the respective contract.
Generally, credit is extended based on an evaluation of the
customer’s financial condition, and collateral is not
typically required. Credit losses are analyzed in the financial
statements using specific identification when it is probable
that all or a portion of the outstanding balance is deemed
uncollectible. Receivables are considered past due if full
payment is not received by the contractual due date. Account
balances are charged off when potential for recovery is
considered remote. Bad debt expense on receivables was minimal
for all periods presented. There was no allowance for bad debts
for trade receivables at December 31, 2007 or 2006. Use of
the specific charge off method does not produce results
materially different from those that would result from the
Company maintaining an allowance for doubtful accounts.
Inventories
Inventories include stockpiled coal, parts, and supplies. Coal
and supplies inventories are valued at the lower of average cost
or market. Supplies inventory is expensed using the weighted
average cost of the inventory, while coal inventory is expensed
at actual cost adjusted to the lower of cost or market for the
inventory on hand. Coal inventory costs include labor, equipment
costs, and operating overhead. The Company recorded a valuation
allowance for slow-moving and obsolete supplies inventories of
$8.3 million and $6.4 million at December 31,2007 and 2006, respectively.
Inventories consist of the following (in thousands):
December 31
2007
2006
Coal
$
10,644
$
7,208
Supplies, net of allowance
36,093
25,076
$
46,737
$
32,284
Coal
Acquisition Costs and Prepaid Royalties
Coal lease rights obtained through acquisition are capitalized
and amortized primarily by the units-of-production method over
the estimated recoverable reserves. Amortization occurs as the
Company mines on the property. Rights to leased coal lands are
often acquired through royalty payments. Where royalty payments
represent prepayments recoupable against future production, they
are capitalized. As mining occurs on these leases, the
prepayment is charged to cost of coal sales. Capitalized
royalties and leased coal interests are evaluated periodically
and adjusted when circumstances indicate the carrying value may
not be recoverable.
Coal sales contracts acquired have been recorded at their
estimated fair value at the date of acquisition. These sales
contracts are valued at the present value of the difference
between the stated price in the acquired contract, net of
royalties and taxes, and the market prices for new contracts of
similar duration and coal quality at the date of acquisition.
Using this approach to valuation, certain contracts, where the
expected contract price is below market price at the date of
acquisition, have a negative value and are classified as a net
liability, while contracts above market have a positive value
and are classified as assets. The liability is accreted and the
asset is amortized to income over the term of the contracts
based on the tons of coal shipped under each contract. Accretion
credits for 2007 and 2006 were $81.3 million and
$100.9 million, respectively, for unfavorable contracts and
amortization charges for 2007 and 2006 were $101.1 million
and $68.9 million,
Notes to
Consolidated Financial
Statements — (Continued)
respectively, for favorable contracts. The accretion and
amortization are recorded as a separate line item on the
statements of operations.
During 2007, the Company restructured a below market sales
contract to reduce future shipments in exchange for a discounted
price on tons remaining to be shipped. The Company has reported
a $3.7 million deferred liability which is included on the
balance sheet as a part of the below market coal sales supply
contract acquired liability. The Company recognized
$0.4 million of revenue from the restructure of the
contract which is included on the statements of operations as
(gain) loss on coal sales supply contract restructuring.
During 2006, the Company agreed to terms with two large
customers to restructure below market coal supply agreements for
$183.8 million. The portion of the payment to buyout tons
that would not be shipped of $25.5 million was charged to
expense and is classified separately on the Company’s
statement of operations for the year ended December 31,2006.
Based on expected shipments related to acquired contracts, the
Company expects to record annual accretion and amortization
related to sales contracts in each of the next five years as
reflected in the table below (in thousands).
Costs related to locating coal deposits and determining the
economic feasibility of mining such deposits are expensed as
incurred.
Property,
Plant and Equipment
Plant and
Equipment
Plant and equipment are recorded at cost. Interest costs
applicable to major asset additions are capitalized during the
construction period. Expenditures that extend the useful lives
of existing plant and equipment or increase the productivity of
the asset are capitalized at cost. Plant and equipment are
depreciated principally on the straight-line method over the
estimated useful lives of the assets, which typically range from
3 to 17 years, except for preparation plants and loadouts.
Major rebuild and repairs costs are capitalized when incurred
and depreciated over the extended life of the equipment.
Maintenance and repairs are generally expensed as incurred.
Preparation plants and loadouts are depreciated using the
straight-line method over the estimated recoverable reserves,
subject to a minimum level of depreciation.
Notes to
Consolidated Financial
Statements — (Continued)
Leased plant and equipment meeting certain criteria are
capitalized and the present value of the related lease payments
is recorded as a liability. Amortization of capitalized leased
assets is computed on the straight-line method over the term of
the associated lease.
Deferred
Mine Development
Costs of developing new mines or significantly expanding the
capacity of existing mines are capitalized and amortized using
the units-of-production method over the estimated recoverable
reserves that are associated with the property being benefited.
Mineral
Rights
Significant portions of the Company’s coal reserves are
controlled through leasing arrangements. Amounts paid to acquire
such lease rights are capitalized and depleted over the life of
those reserves that are proven and probable. Depletion of coal
lease rights is computed using the units-of-production method
and the rights are assumed to have no residual value. The leases
are generally long-term in nature, and substantially all of the
leases contain provisions that allow for automatic extension of
the lease term as long as mining continues. The net book value
of the Company’s mineral rights was $799.6 million and
$807.7 million at December 31, 2007 and 2006,
respectively.
During the second quarter of 2007, the Company exchanged coal
reserves with a third party, recognizing a net gain of
$15.3 million (pre-tax) in accordance with Statement of
Financial Accounting Standards (SFAS) No 153: Exchanges of
Nonmonetary Assets, an Amendment of APB No. 29, Accounting
for Nonmonetary Transactions. The gain is reported as a gain
on exchange of mining reserves on the statements of operations.
The acquired coal reserves were recorded in Property, plant and
equipment at the fair value of the reserves. The cost of the
previous reserves was removed at its historical cost.
Stripping
Costs
Stripping costs incurred in the production phase of the mine for
the removal of overburden or waste materials for the purpose of
obtaining access to the coal that will be extracted are treated
as production costs. Such costs are included in the cost of
inventory produced during the period the stripping costs are
incurred.
Deferred
Longwall
The Company uses a deferred method of accounting for specific
longwall rebuild costs and well plugging costs associated with
longwall operations to better match these costs with the
associated revenue. These costs are readily identifiable with
the specific longwall panel to which they apply. The costs are
expensed, as a cost of mining, as the panel is mined. The
unamortized costs are recorded as other current or other
noncurrent assets depending on the expected date of mining the
specific longwall panel.
Impairment
of Long-lived Assets
If facts and circumstances suggest that a long-lived asset may
be impaired, the carrying value is reviewed. If this review
indicates that the value of the asset will not be recoverable,
as determined based on projected undiscounted cash flows related
to the asset over its remaining life, then the carrying value of
the asset is reduced to its estimated fair value.
Goodwill
Goodwill, which is the excess of the cost of an acquisition over
the fair value of tangible and intangible assets acquired, is
not amortized. The goodwill balance at December 31, 2006,
of $123.4 million was recorded in conjunction with the 2005
acquisition of the Arch Properties. Due to the adoption of
SFAS No. 158,
Notes to
Consolidated Financial
Statements — (Continued)
Employers’ Accounting for Defined Benefit Pension and
Other Postretirement Plans — an amendment of FASB
Statements No. 87, 88, 106, and 132(R), by the Company
at December 31, 2007, goodwill was adjusted to
$68.7 million (see Recent Accounting Pronouncements,
included in this Note, for related details). The
$54.7 million adjustment effectively represents the tax
effect of reducing the SFAS No. 158 liabilities to
their fair value at December 31, 2007, due to the residual
nature of the goodwill calculation as of the purchase date. The
Company performs an impairment review annually by calculating
the estimated fair value of the business to which the goodwill
is associated. If the indicated fair value of the goodwill per
the calculation is less than its carrying value, the Company
would be required to record an impairment. Based upon the most
recent review, no impairment was indicated by such analysis.
Off-Balance
Sheet Arrangements
In the normal course of business, the Company is a party to
certain off-balance sheet arrangements. These arrangements
include guarantees, indemnifications, and financial instruments
with off-balance sheet risk. Liabilities related to these
arrangements are not reflected in the consolidated balance
sheets, and the Company does not expect any material impact on
the financial condition, results of operations, or cash flows to
result from these off-balance sheet arrangements.
The Company has used collateralized surety bonds to secure the
financial obligation for reclamation of mining properties of
$121.4 million and wage bonds of $1.4 million as of
December 31, 2007. The Company also has issued letters of
credit in favor of the UMWA and to support surety bonds of
$9.1 million and $17.2 million, respectively. Of the
$121.4 million of reclamation bonds, Arch provides
guarantees for $94.1 million of the reclamation bonds
outstanding as of December 31, 2007. As of
December 31, 2006, the Company had collateralized surety
bonds for reclamation of mining properties of
$117.0 million and wage bonds of $1.4 million. The
Company also has letters of credit for UMWA and supporting
surety bonds of $27.8 million and $14.5 million,
respectively. Of the $117.0 million of reclamation bonds,
Arch provides guarantees for $94.4 million of the
reclamation bonds outstanding as of December 31, 2006. Arch
has agreed to continue to provide surety bonds and letters of
credit for the reclamation and retiree healthcare obligations of
the acquired Arch properties in order to facilitate an orderly
transition. The Company is required to reimburse Arch for costs
related to the surety bonds and letters of credit until it can
replace these items. If the surety bonds and letters of credit
related to the reclamation obligations are not replaced by the
Company within a specified period of time, the Company must post
a letter of credit in Arch’s favor in the amount of the
obligations.
Stock-Based
Compensation
In 2006, the Company’s Stock Agreement authorized the
Company to issue a total of three million shares of stock as
restricted stock awards known as the Magnum Coal Company Stock
Incentive Plan. The Company’s stock awards, which are
accounted for as liability awards, require valuation of the
Company’s stock each reporting period. At December 31,2007, the Company estimates the fair value of its stock
utilizing industry data on peers and discounting forecasted cash
flow for the Company. The percent of fair value that is accrued
as selling, general, and administrative expense at the end of
each period is equal to the percentage of the requisite service
that has been rendered at that date, net of estimated
forfeitures. Changes in the fair value of a liability that occur
after the end of the requisite service period are recorded as
compensation costs of the period in which the changes occur. Any
difference between the amount for which a liability award is
settled and its fair value at the settlement date as estimated
is an adjustment of compensation cost in the period of
settlement. The total stock compensation costs recognized during
the years ended December 31, 2007 and 2006, were
$8.0 million and $5.5 million, respectively. The
Company has a total of 1,951,503 and 2,475,226 stock awards
outstanding as of December 31, 2007 and 2006, respectively.
Costs to be recognized total $10.1 million during vesting
periods ranging from April 2008 to March 2011.
Notes to
Consolidated Financial
Statements — (Continued)
Transportation
Costs
Trucking and dock loading fees are included in costs of coal
sales in the consolidated statement of operations. These costs
are directly related with the operations of the business.
Freight and handling costs that are billed to the customer are
included in other revenue. Freight and handling costs are the
costs associated with the actual delivery of the coal to its
destination and are based upon the provision of individual
contracts with customers.
Income
Taxes
Deferred income taxes are provided for temporary differences
between the financial statement and tax basis of assets and
liabilities existing at each balance sheet date using enacted
tax rates for years during in which taxes are expected to be
paid or recovered. Deferred taxes result from differences
between the financial and tax bases of the Company’s assets
and liabilities. Interest and penalties will be included as
interest expense. A valuation allowance is recorded to reduce
deferred tax assets to the amount most likely to be realized.
Debt
Issuance Costs
Costs incurred in connection with the issuance of debt
facilities are capitalized and amortized over the life of the
related indebtedness using the effective interest rate method.
Consolidation
of Variable Interest Entities
In general, a variable interest entity (VIE) is a corporation,
partnership, limited liability corporation, trust, or any other
legal structure used to conduct activities or hold assets that
either (1) has an insufficient amount of equity to carry
out its principal activities without additional subordinated
financial support, (2) has a group of equity owners that
are unable to make significant decisions about its activities,
or (3) has a group of equity owners that do not have the
obligation to absorb losses or the right to receive returns
generated by its operations.
A VIE is consolidated if the Company has an ownership,
contractual, or other financial interest in the VIE (a variable
interest holder), is obligated to absorb a majority of the risk
of loss from the VIE’s activities, and is entitled to
receive a majority of the VIE’s residual returns (if no
party absorbs the majority of the VIE’s losses). Under
those circumstances, the Company is considered the primary
beneficiary. Upon consolidation, the Company generally must
initially record all of the VIE’s assets, liabilities, and
noncontrolling interests at fair value and subsequently account
for the VIE as if it were consolidated based on majority voting
interest. The Company has no interests in VIEs.
Recent
Accounting Pronouncements
In September 2006, the FASB issued SFAS No. 157,
Fair Value Measurements. SFAS No. 157 defines
fair value, establishing a framework for measuring fair value
and expands disclosure about fair value measurements.
SFAS No. 157 is effective for fiscal years beginning
after November 15, 2007. The Company does not expect
SFAS No. 157 to have a material impact on its
consolidated financial statements.
In September 2006, the FASB issued SFAS No. 158,
Employers’ Accounting for Defined Benefit Pension and
Other Postretirement Plans — an amendment of FASB
Statements No. 87, 88, 106, and 132(R). On
December 31, 2007, the Company adopted the recognition and
disclosure provisions of SFAS No. 158. This statement
required the Company to recognize the funded status (i.e., the
difference between the fair value of plan assets and the
projected benefit obligation) of its other postretirement
benefit (OPEB) plans in the December 31, 2007, consolidated
balance sheet, with a corresponding adjustment to cumulative
other comprehensive income (a component of stockholders’
equity), net of tax. The adjustment to cumulative other
Notes to
Consolidated Financial
Statements — (Continued)
comprehensive income at adoption represents the net unrecognized
actuarial losses and unrecognized prior service costs, all of
which were previously netted against the plans’ funded
status in the Company’s consolidated balance sheets
pursuant to the provisions of SFAS No. 106.
These amounts will be subsequently recognized as net periodic
benefit cost pursuant to the Company’s historical
accounting policy for amortizing such amounts. Further,
actuarial gains and losses that arise in subsequent periods and
are not recognized as net periodic benefit costs in the same
periods will be recognized as a component of other comprehensive
income. Those amounts will be subsequently recognized as
components of net periodic benefit cost on the same basis as the
amount recognized in cumulative other comprehensive income at
adoption of SFAS No. 158.
The incremental effects of adopting the provisions of
SFAS No. 158 on the Company’s consolidated
balance sheet at December 31, 2007, are presented in the
following table. The adoption of SFAS No. 158 had no
effect on the Company’s consolidated statement of
operations for the year ended December 31, 2007, or for any
prior periods presented, and it will not effect the
Company’s operating results in future periods.
Before Application
After Application
of SFAS No. 158
Adjustments
of SFAS No. 158
(In thousands)
Debit (credit)
Deferred tax asset
$
239,171
$
(54,674
)
$
184,497
Valuation reserve on deferred tax asset
(239,171
)
54,674
(184,497
)
Goodwill
123,418
(54,674
)
68,744
Liabilities for:
Workers’ compensation
(7,006
)
2,436
(4,571
)
Postretirement benefits
(607,740
)
130,426
(477,314
)
UMWA Combined Fund liabilities
(16,543
)
1,473
(15,070
)
Total liabilities
(1,341,607
)
134,315
(1,207,292
)
Accumulated other comprehensive income
—
(79,661
)
(79,661
)
Total stockholders’ equity
(92,286
)
(79,661
)
(171,947
)
3.
Acquisitions
Arch
Properties
On December 31, 2005, the Company assumed the assets and
liabilities of Arch Properties. The purchase price related to
the acquisition has been recorded in the accompanying
consolidated financial statements as of December 31, 2005.
In connection with the adoption of SFAS No. 158, the
Company adjusted goodwill by $54.7 million (see discussion
in Note 2).
Under purchase accounting, Arch Properties assets and
liabilities are required to be adjusted to their estimated fair
values, determined with the assistance of third-party valuation
experts. The following is a summary of purchase accounting
adjustments:
Merger
of Other Related Entities Under Common Control, Acquisition of
Minority Interest, and Recapitalization
On March 21, 2006, ArcLight and Elliott contributed 100% of
their equity interests in Trout, Dakota, and the Labor Companies
in exchange for Company stock. ArcLight’s interest was
accounted for as an exchange of shares between entities under
common control. Accordingly, assets and liabilities
corresponding to ArcLight’s 96.5% and 79.0% interests in
Trout and Dakota, respectively, were carried forward to Magnum
at their historical recorded amounts. The acquisition of
Elliott’s minority interest in Trout and Dakota and his
100% interest in the Labor Companies was accounted for as a
purchase and was based upon the fair value of the Magnum stock
Elliott received at recapitalization date.
Notes to
Consolidated Financial
Statements — (Continued)
The following table summarizes the assets and liabilities of the
entities under common control carried forward at historical cost
on March 21, 2006, and the minority interest acquired at
fair value (in thousands):
Cash
$
20,982
Accounts receivable
11,210
Inventories
4,184
Property, plant, and equipment, including mining rights
277,987
Other noncurrent assets and liabilities, net
2,183
Debt
(397,938
)
Amounts due to affiliates, net
(28,107
)
Other postemployment benefits
(6,838
)
Other current assets and liabilities, net
(28,619
)
Combination of majority interest of entities under common control
(144,956
)
Acquisition of minority interest
7,917
Total equity, excluding shares exchanged
$
(137,039
)
The following table shows the proforma results of the Company
assuming that Trout, Dakota, and the Labor Companies had been
combined for all periods presented and the Arch Properties
acquired at the beginning of 2005 (in thousands):
Loss before cumulative effect in change in accounting principle
(71,296
)
(26,287
)
Discontinued operations
(13,952
)
3,053
Net loss before taxes
$
(85,248
)
$
(23,234
)
Simultaneously, with the contribution of the Trout, Dakota, and
Labor Companies equity to the Company, the Company executed a
recapitalization, which is summarized as follows (in thousands):
Proceeds from investors, net of expenses
$
427,380
New loan facility proceeds
200,000
Total proceeds received
627,380
Loan repayment including accrued interest
(402,087
)
Repayment of amounts advanced by ArcLight and loan fees
Notes to
Consolidated Financial
Statements — (Continued)
4.
Debt and
Capital Leases
On March 21, 2006, the Company entered into a credit
facility, which consisted of a $200 million term loan, a
$40 million revolving credit facility, and a
$20 million synthetic letter of credit facility. In
December 2006, the synthetic letter of credit facility was
increased to $50 million. The term loan and synthetic
letter of credit facility have a term of seven years and the
revolving credit facility has a term of five years. The credit
facility is secured, bears interest at LIBOR plus a margin, and
has certain mandatory prepayments based on cash flow and cash
proceeds from issuance of debt or equity and certain financial
covenants including overall leverage and interest coverage
ratios. The term loan amortizes at 1% per year until maturity.
The revolver is due at maturity and includes a fee on the unused
portion. The synthetic letter of credit facility bears interest
equal to the margin over LIBOR plus 0.1%.
In March 2008, the Company amended its credit facility to cure
primary financial covenant defaults existing at
December 31, 2007. In addition to curing the defaults, the
amendment (1) waived primary financial covenants for the
quarter ending March 31, and modified primary financial
covenants for the quarters ending June 30 and September 30,2008, (2) authorized the issuance of $100 million in
convertible second liens notes, and (3) authorized the
Company to enter into sale/leaseback transactions up to
$25 million in the aggregate. Pursuant thereto, the Company
will issue $100 million of convertible notes to certain
existing shareholders, the proceeds of which will be utilized to
pay down existing indebtedness, pay increased interest of 2.75%
and pay up front fees of 0.25%. If certain conditions are met
prior to September 30, 2008, the interest rate on the
existing facility increases by an additional 1.00%, a 0.75% fee
is payable and an additional 0.75% fee is payable on the earlier
of six months after the condition is not met or payoff of the
facility.
On March 26, 2008, the Company issued the aforementioned
$100 million in subordinated second lien convertible notes
which mature in 2013. The proceeds from the Notes were used to
pay down indebtedness under the existing facility as discussed
above. The Notes bear interest at 10% payable quarterly in kind,
have a second lien security interest in the assets securing the
existing credit facility and are convertible into the
Company’s common stock at a price ranging from $7.50 to
$8.87 per share dependent upon certain conditions. The Notes
provide for mandatory redemption upon a change of control (as
defined in the Company’s existing credit facility) and
contain no financial maintenance covenants.
The Company also has financed purchases of equipment with
capital leases with interest rates ranging from 6.38% to 8.89%.
The obligations require monthly principal and interest payments
through the term of the lease, with a buyout option at the end
of the lease term.
Debt and capital leases consist of the following as of
December 31, 2007 and 2006 (in thousands):
Notes to
Consolidated Financial
Statements — (Continued)
Future maturities of borrowings and capital leases are as
follows as of December 31, 2007 (in thousands):
Credit
Capital
Facility
Lease
Borrowing
Obligation
2008
$
42,000
$
3,780
2009
2,000
4,103
2010
2,000
5,470
2011
2,000
573
2012
2,000
—
Thereafter
186,500
—
$
236,500
$
13,926
The total amount of equipment capitalized under capital leases
at December 31, 2007 and 2006, was $16.7 million and
$9.2 million, respectively, and accumulated amortization
was $2.2 million and $0.7 million, respectively.
Interest expense and interest paid for all debt and lease
agreements were $22.9 million and $22.5 million,
respectively, for the year ended December 31, 2007.
Interest expense and interest paid for all debt and lease
agreements were $15.2 million and $18.1 million,
respectively, for the year ended December 31, 2006. The
Arch Properties incurred net interest expense of
$7.0 million in 2005.
5.
Extinguishment
of Debt
In connection with the refinancing of Trout’s and
Dakota’s senior secured indebtedness on March 21,2006, the Company incurred a noncash charge of $7.2 million
to write-off unamortized debt issuance costs and an early
extinguishment of debt fee of $2.5 million related to the
term loan.
Notes to
Consolidated Financial
Statements — (Continued)
The income tax provisions included in the consolidated
statements of operations are summarized as follows:
Year Ended December 31
Arch
Properties
(Predecessor)
2007
2006
2005
2005
Current expense from continuing operations:
Federal
$
—
$
—
$
—
$
—
State
—
—
—
—
Deferred expenses from continuing operations:
Federal and state
(42,290
)
(27,262
)
(1,292
)
(18,228
)
Changes in valuation allowance
42,290
27,262
1,292
18,228
Income tax expense from continuing operations
—
—
—
—
Income tax expense related to discontinued operations
—
—
—
—
$
—
$
—
$
—
$
—
Significant components of the Company’s deferred tax assets
and liabilities that result from carryforwards and temporary
differences between the financial statement basis and tax basis
of assets and liabilities are summarized as follows (in
thousands):
Notes to
Consolidated Financial
Statements — (Continued)
Deferred tax assets and liabilities are classified as follows:
2007
2006
Deferred tax asset, current
$
36,419
$
41,794
Valuation reserve on current deferred tax asset
(36,419
)
(41,794
)
Deferred tax asset, current (net)
$
—
$
—
Deferred tax asset, noncurrent
$
92,353
$
94,088
Valuation reserve on noncurrent deferred tax asset
(92,353
)
(94,088
)
Deferred tax asset, noncurrent (net)
$
—
$
—
The Company has federal tax net operating loss carryforwards for
regular income tax purposes of $20.2 million, which will
expire in 2026, and $138.0 million, which will expire in
2027. The Company has established a valuation allowance for
these deferred tax assets until such time that the Company
determines that it is probable that such assets will be
realized. Postretirement benefits and UMWA pension benefits
decreased due to the adoption of SFAS No. 158, while
the sales contract deferred tax asset decreased due to the
shipment of tons on the contracts.
8.
Derivative
and Financial Instruments
Diesel
Fuel Price Risk Management
In 2007 and 2006, the Company used forward physical purchase
contracts to reduce volatility in the price of diesel fuel for
its operations. These forward physical purchase contracts are
less than a year in duration; therefore, the Company does not
use hedge accounting but rather treats the transaction as part
of normal operations of the business.
Interest
Rate Swap
The Company, pursuant to a joint refinancing agreement entered
into in 2006 (see Note 4), is utilizing a future interest
rate swap agreement to modify the interest characteristics of
outstanding debt. The future swap agreement converts
variable-rate debt to fixed-rate debt. The future swap agreement
is for a period from June 2006 through March 2009 and provides
for a fixed LIBOR rate of 4.49% on a $150 million notional
amount. The Company has not designated this instrument for hedge
accounting and, accordingly, the $1.6 million expense and
$0.7 million income recorded on the face of the statements
of operations for the years ended December 31, 2007 and
2006, respectively, reflect the change in fair value of the
interest rate swap with cash settled with payments received or
paid quarterly. The fair value of the instrument is based upon
the prevailing interest rates with similar durations. At
December 31, 2007, the fair market value of this derivative
is $0.7 million liability and is reported in other current
liabilities in the Company’s consolidated balance sheet. At
December 31, 2006, the fair market value of this derivative
is $1.8 million and is reported in other noncurrent assets
in the Company’s consolidated balance sheet.
9.
Asset
Retirement Obligations and Reclamation
The primary regulatory matters affecting the Company’s
mining operations, as well as its competitors, pertain to the
federal Surface Mining Control and Reclamation Act of 1977
(SMCRA), which is administered by the Office of Surface Mining
Reclamation and Enforcement (OSM). The Company obtains SMCRA
permits and permit renewals for its mining operations from the
West Virginia Department of Environmental Protection (WVDEP).
The Company’s mine and reclamation plans incorporate the
provisions of SMCRA, the state programs, and the complementary
environmental programs that impact coal mining.
Notes to
Consolidated Financial
Statements — (Continued)
The Company’s asset retirement obligation (ARO) liabilities
primarily consist of cost estimates related to reclaiming
surface land and support facilities at both surface and
underground mines in accordance with federal and state
reclamation laws as defined by each mine permit. The obligation
and corresponding asset are recognized in the period in which
the liability is incurred.
The Company estimates its ARO liabilities for final reclamation
and mine closure based upon detailed engineering calculations of
the amount and timing of the future cash expenditures for a
third party to perform the required work. Cost estimates are
escalated for inflation then discounted at the credit-adjusted
risk-free rate.
The provisions of SFAS No. 143, Accounting for
Asset Retirement Obligations, require the projected
estimated reclamation obligation to include a market risk
premium that represents the amount an external party would
charge for bearing the uncertainty of guaranteeing a fixed price
today for performance in the future. However, due to the nature
of the coal mining reclamation work, the Company believes that
it is impractical for external parties to agree to a fixed price
today. Therefore, a market risk premium has not been included in
the reclamation liabilities. The Company has recorded an ARO
asset associated with the liability. The ARO asset is amortized
on a straight-line basis over the respective mining
operation’s expected life of the mine, and the ARO
liability is accreted to the projected spending date. Changes in
estimates could occur due to mine plan revisions, changes in
estimated costs, changes in timing of the performance of
reclamation activities, and changes in the credit profile of the
company and the related discount rate.
As of December 31 each year, the Company revises its ARO
liability based on new information, including discount rates,
new cost estimates, changes in mine plans, and changes in the
timing of costs. These changes resulted in an increase of
$3.5 million and a decrease of $1.8 million in the
liability and associated assets at December 31, 2007 and
2006, respectively.
A reconciliation of the liability for ARO as of December 31 is
as follows (in thousands):
2007
2006
Asset retirement obligation liability at beginning of period
$
47,683
$
28,348
Accretion expense
3,374
2,646
Assumption of Trout liability
—
14,005
Assumption of Dakota liability
—
4,272
Additions from property development
2,981
441
Liabilities settled
(2,006
)
(264
)
Adjustments in the liability from annual recosting
3,457
(1,765
)
Total asset retirement obligation liability at end of period
55,489
47,683
Asset retirement obligation liability, current
1,351
2,914
Asset retirement obligation liability, noncurrent
$
54,138
$
44,769
10.
Accrued
Workers’ Compensation
The Company is liable under the federal Mine Safety and Health
Act of 1969, as subsequently amended, to provide for
pneumoconiosis (black lung) benefits to eligible employees,
former employees, and dependents. The Company is also liable
under various states’ statutes for black lung benefits. The
Company currently provides for federal and state claims for
retirees principally through a self-insurance program. Charges
are being made to operations as determined by independent
actuaries at the present value of the actuarially computed
present and future liabilities for such benefits over the
employees’ applicable years of service. The Company has
provided insurance for current employees through a privatized
agency since January 1, 2006.
Notes to
Consolidated Financial
Statements — (Continued)
Black lung benefit expense consists of the following components
(in thousands):
Arch Properties
(Predecessor)
2007
2006
2005
Self-insured black lung benefits:
Service cost
$
—
$
—
$
371
Interest cost
288
444
840
Net amortization
(134
)
—
(1,969
)
Total black lung expense
154
444
(758
)
Traumatic injury claims and assessments
—
—
11,725
Total expense
$
154
$
444
$
10,967
Payments for black lung benefits
$
1,072
$
832
$
14,593
Discount rate
6.05
%
5.90
%
5.80
%
Cost escalation rate
5.00
%
5.00
%
4.00
%
Summarized below is information about the amounts recognized in
the consolidated balance sheets for black lung benefits (in
thousands):
December 31
2007
2006
Black lung costs
$
4,571
$
7,925
Less amount included in accrued expenses
637
844
Noncurrent obligations
$
3,934
$
7,081
SFAS No. 158 required the Company to recognize the
funded status of its benefit plans in the December 31, 2007
consolidated balance sheet, with a corresponding adjustment to
cumulative other comprehensive income (a component of
stockholders’ equity), net of tax. The adjustment of
$2.4 million to cumulative other comprehensive income at
adoption represents the net unrecognized actuarial losses and
unrecognized prior service costs, all of which were previously
netted against the plans’ funded status in the
Company’s consolidated balance sheets. These amounts will
be subsequently recognized as net periodic benefit cost pursuant
to the Company’s historical accounting policy for
amortizing such amounts.
The reconciliation of changes in the benefit obligation of the
black lung liability is as follows:
Notes to
Consolidated Financial
Statements — (Continued)
The following benefit payments, which reflect expected future
service, as appropriate, are expected to be paid (in thousands):
Workers’
Compensation
2008
$
637
2009
574
2010
512
2011
451
2012
389
2013 and thereafter
2,008
$
4,571
The workers’ compensation liability was
actuarially-determined based upon the present value of known
claims and an estimate of future claims that will be awarded to
former employees.
11.
Employee
Benefit Plans
401(k)
Savings Plans
Effective January 1, 2007, all of the Company’s 401(k)
savings plans were merged into the Magnum Coal Company 401(K)
Plan. This plan is a pre-tax contributory plan with a Company
match not to exceed 6% of a participant’s salary. Employees
are eligible to participate upon their hire date. Each nonhighly
compensated employee participant may elect to contribute up to
50% of annual compensation, not to exceed the limits established
by federal law. Highly compensated employees are limited to 16%,
not to exceed the IRS limit. All contributions are 100% vested.
Prior to 2007, the Company had several 401(k) savings plans
covering eligible employees. Employees’ eligibility ranged
from immediate participation upon hire date to one year of
service with 1,000 hours. Each participant may have elected
to contribute up to 50% of annual compensation, not to exceed
the limits established by federal law. The Company had
discretion to make a fixed match or profit-sharing
contributions. Participants were 100% vested relating to their
individual contributions and became 100% vested with respect to
the Company’s discretionary contributions immediately or
after four years of service, depending upon the particular Plan
in which the employee participates. The Company’s expense
under these plans approximated $4.3 million and
$2.9 million for the years ended December 31, 2007 and
2006, respectively.
The employees of the Arch Properties participated in a 401(k)
savings plan sponsored by Arch which was established to assist
eligible employees in providing for their future retirement
needs. The Arch Properties contribution to the savings plan was
$1.8 million in 2005.
Defined
Contribution Plan
Effective January 1, 2006, certain employees are covered by
the Magnum Coal Company Defined Contribution Retirement Plan
sponsored by the Company. The benefits are based on the
employee’s age and compensation. The Plan was amended in
2006 to exclude anyone hired by a participating company after
August 1, 2006, from participating in the Plan. The Company
funds the plan in an amount not less than the minimum statutory
funding requirements or more than the maximum amount that can be
deducted for federal income tax purposes. Participants vest in
their benefits earned under this plan after three years of
service. The total expenses incurred by the Company were
$2.7 million and $2.3 million for the years ended
December 31, 2007 and 2006, respectively. Contributions to
the plan for the year ended December 31, 2007, will be made
in April 2008.
Notes to
Consolidated Financial
Statements — (Continued)
Other
Postretirement Benefits
The Company also provides certain postretirement medical/life
insurance benefits for eligible employees. Generally, covered
employees who terminate employment after meeting eligibility
requirements are eligible for postretirement medical and
prescription drug coverage for themselves and their dependents.
The employee postretirement medical/life plans are contributory;
with retiree contributions adjusted periodically, and contain
other cost-sharing features such as deductibles and coinsurance.
The Company’s current policy is to fund the cost of
postretirement medical benefits as they are paid. The Company
utilizes a December 31 measurement date for its benefit plans.
Pursuant to the acquisition of Arch Properties, Arch contributed
$15.0 million to two independent Voluntary Employee
Beneficiary Association (VEBA) trusts that provide
post-retirement benefits other than pension to certain former
employees of the Arch Properties. These assets decrease the
amount of liability within the other postemployment benefits
(OPEB). In 2007, the Company elected to begin utilizing these
funds to pay expenses related to the former employees of the two
trusts. The Company made $14.2 million in benefit payments
from these trusts in 2007. The Company has reflected
$1.8 million, the funds remaining in the VEBA, as a
deduction to the amount of benefits to be paid from these trusts
in 2008 as current liabilities at December 31, 2007. At
December 31, 2006, the Company reflected $12.4 million
as the projected amounts of benefits to be paid from the VEBA
trust in 2007 and as a reduction in current liabilities.
Notes to
Consolidated Financial
Statements — (Continued)
The following table provides information regarding the assumed
health care cost trend rates at December 31:
2007
2006
2005
Health care cost trend rate assumed for next year
7.00
%
7.50
%
7.50
%
Ultimate trend rate
5.00
%
5.00
%
5.00
%
Year that the rate reaches the ultimate trend rate
2012
2012
2011
Assumed health care cost trend rates have a significant effect
on the amounts reported for the postretirement benefit plan. A
one-percentage-point change in the assumed health care cost
trend would have the following effects:
One-Percentage
One-Percentage
Point Increase
Point Decrease
(In thousands)
Effect on total of service cost and interest cost components
$
4,887
$
(3,998
)
Effect on year-end postretirement benefit obligation
62,643
(51,959
)
The following benefit payments, which reflect expected future
service, as appropriate, are expected to be paid (in thousands):
Other
Postretirement
Benefits
2008
$
25,282
2009
28,805
2010
30,952
2011
32,674
2012
33,984
2013 and thereafter
325,617
$
477,314
SFAS No. 158 required the Company to recognize the
funded status of its benefit plans in the December 31, 2007
consolidated balance sheet, with a corresponding adjustment to
cumulative other comprehensive income (a component of
stockholders’ equity), net of tax. The adjustment of
$130.4 million to cumulative other comprehensive income at
adoption represents the net unrecognized actuarial losses and
unrecognized prior service costs, all of which were previously
netted against the plans’ funded status in the
Company’s consolidated balance sheets pursuant to the
provisions of SFAS No. 106. These amounts will be
subsequently recognized as net periodic benefit cost pursuant to
the Company’s historical accounting policy for amortizing
such amounts. The other postretirement benefits liability was
actuarially-determined based upon the present value of known
claims and an estimate of future claims that will be awarded to
former employees. The expected rate of return on plan assets is
determined by taking into consideration expected long term
returns of similar rated assets on the market.
In May 2004, the FASB issued FASB Staff Position (FSP)
FAS 106-2,
Accounting and Disclosure Requirements Related to the
Medicare Prescription Drug, Improvement and Modernization Act of
2003. The Arch Properties have included the effects of the
Medicare Prescription Drug, Improvement and Modernization Act of
2003 (the Act) in their financial statements for the year ended
December 31, 2004 in accordance with FSP
FAS 106-2.
Incorporation of the provisions of the Act resulted in a
reduction of the Company’s postretirement benefit
obligation of $68.0 million. Postretirement medical
expenses for fiscal year 2004 after incorporation of the
provisions of the Act resulted in an amount of
$18.2 million less than that previously anticipated (all of
which was recorded as a component of cost of coal sales). The
benefit for the year ended
Notes to
Consolidated Financial
Statements — (Continued)
December 31, 2004, was partially offset by increased costs
resulting from other actuarial assumptions that were
incorporated at the beginning of the year. There was a plan
amendment related to Medicare Part D, which specified that
the Company would pay the related premiums for certain
participants. This amendment increased the accumulated
postretirement benefit obligation by $14.8 million at
December 31, 2006.
Multi-employer
Pension and Benefit Plans
Under the labor contract with the United Mine Workers of America
(UMWA), the Company made no payments in 2007, 2006, or 2005 into
a multi-employer defined benefit pension plan trust established
for the benefit of union employees. Payments are based on hours
worked and are expensed as hours are incurred. Under the
Multi-employer Pension Plan Amendments Act of 1980, a
contributor to a multi-employer pension plan may be liable,
under certain circumstances, for their proportionate share of
the plan’s unfunded vested benefits (withdrawal liability).
The Company is not aware of any circumstances that would require
it to reflect its share of unfunded vested pension benefits in
its financial statements.
At December 31, 2007, approximately 30% of the
Company’s workforce was represented by the UMWA under a
collective bargaining agreement. A new five-year labor agreement
was reached in February 2007 and is effective from
January 1, 2007 through December 31, 2011. This
agreement replaced the National Bituminous Coal Wage Agreement
of 2002.
The Coal Industry Retiree Health Benefit Act of 1992 (Benefit
Act) provides for the funding of medical and death benefits for
certain retired members of the UMWA through premiums to be paid
by assigned operators (former employers), transfers of monies in
1993 and 1994 from an over-funded pension trust established for
the benefit of retired UMWA members, and transfers from the
Abandoned Mine Lands Fund (funded by a federal tax on coal
production) commencing in 1995. The multi-employer pension plan
provides medical and death benefits for all beneficiaries of the
former UMWA Benefit Trusts who were actually receiving benefits
as of July 20, 1992. The 1992 Benefit Fund provides medical
and death benefits to orphan UMWA-represented members eligible
for retirement on February 1, 1993, and who actually
retired between July 20, 1992 and September 30, 1994.
The Benefit Act provides for the assignment of beneficiaries to
former employers and the allocation of unassigned beneficiaries
(referred to as orphans) to companies using a formula set forth
in the Benefit Act. The Benefit Act requires that responsibility
for funding the benefits to be paid to beneficiaries be assigned
to their former signatory employers or related companies. The
Company recorded the obligation of $15.1 million and
$15.2 million in noncurrent liabilities as of
December 31, 2007 and 2006, respectively. The discount rate
of the liability is assumed to be 6.80% and 6.05% as of
December 31, 2007 and 2006, respectively. The liability is
subject to increases or decreases in per capita health care
costs, offset by the mortality curve in the aging population of
beneficiaries. Expenses of $1.0 million, $2.2 million,
and $3.4 million were recorded in 2007, 2006, and 2005,
respectively, for premiums pursuant to the Benefit Act.
Contributions of $1.6 million, $3.3 million, and
$3.4 million were made in 2007, 2006, and 2005,
respectively, for premiums pursuant to the Benefit Act.
SFAS No. 158 required the Company to recognize the
funded status of its benefit plans in the December 31, 2007
consolidated balance sheet, with a corresponding adjustment to
cumulative other comprehensive income (a component of
stockholders’ equity), net of tax. The adjustment of
$1.5 million to cumulative other comprehensive income at
adoption represents the net unrecognized actuarial losses and
unrecognized prior service costs, all of which were previously
netted against the plans’ funded status in the
Company’s consolidated balance sheets. These amounts will
be subsequently recognized as net periodic benefit cost pursuant
to the Company’s historical accounting policy for
amortizing such amounts. The benefit act liability was
actuarially-determined based upon the present value of known
claims and an estimate of future payments to the plan.
Notes to
Consolidated Financial
Statements — (Continued)
12.
Stock-Based
Compensation
The Company’s Stock Agreement has authorized the Company to
issue a total of three million shares of stock as restricted
stock awards. The Company’s stock awards are accounted for
as liability awards, which require valuation of the
Company’s stock each reporting period. At December 31,2007, the Company estimates the fair value of its stock
utilizing industry data on peers and discounting forecasted cash
flow for the Company. The percent of fair value that is accrued
as selling, general, and administrative expense at the end of
each period is equal to the percentage of the requisite service
that has been rendered at that date, net of estimated
forfeitures. The life of the vesting period is between
24 months and 42 months, and the Company uses the
straight-line method for recording stock compensation expense.
The Company is unable to measure the volatility of the shares
due to the short history of the Company. At various dates in
2006, the Company issued 2.6 million restricted stock
awards at a weighted-average fair value of $13.43 with an
average term of 2.9 years. At various dates in 2007, the
Company issued 0.5 million restricted stock awards at a
weighted-average fair value of $9.81 with an average term of
3.4 years.
A summary of the restricted stock at December 31, 2007, and
activity during 2006 and 2007 is presented below:
Compensation expense recognized for these issuances was
$8.0 million and $5.5 million in 2007 and 2006,
respectively. The restricted stock awards provide for
accelerated vesting if there is a change in control or the
Company goes public.
13.
Discontinued
Operations
In August 2006 the Company made a decision to close its Dakota
mine as it was no longer economically viable to operate. The
Company recognized a loss of $15.6 million related to this
closure and Dakota’s operating results, which have been
shown as results of discontinued operations in the
Company’s statement of operations for the year ended
December 31, 2006. The Company recorded additional expenses
in 2007 of $3.8 million for the removal of fixed assets and
the shutdown of the mines in accordance with regulatory
Notes to
Consolidated Financial
Statements — (Continued)
requirements. The following data reflects the activity for the
discontinued operation during 2007 and 2006 (in thousands):
2007
2006
Coal sales
$
—
$
15,674
Costs and expense
(3,787
)
(17,386
)
Depreciation
—
(2,494
)
Loss on abandoned assets
—
(6,541
)
Curtailment loss on OPEB
—
(584
)
Loss on asset recovery and mine closure
—
(4,312
)
Loss from discontinued operations
$
(3,787
)
$
(15,643
)
The liability at December 31, 2006, excluding asset
retirement obligations was $0.8 million for the closure of
the Dakota mine. There was no liability at December 31,2007. The Company has recorded $4.1 million in asset
retirement obligations for continuing liability associated with
reclamation requirements as of December 31, 2007. At
December 31, 2006, the asset retirement obligation was
$4.2 million with payments in 2007 of $1.1 million.
The increase in asset retirement obligation is due to stricter
regulatory agencies requirements than originally projected in
2006.
14.
Credit
Concentrations and Market Risks
Quantitative
and Qualitative Disclosures About Market Risk
The Company presents the sensitivity of the market value of our
financial instruments to selected changes in market rates and
prices. The range of changes is what management of the Company
reasonably expects in a one year period. Actual results may
differ from expectations presented by the Company.
The Company manages the commodity price risk for the
non-trading, long-term coal contract portfolio through the use
of long-term coal supply agreements, rather than through the use
of derivative instruments. At December 31, 2007, based
on current expectations of production over the next three years,
the Company expects production available for repricing of
approximately 5 million tons or 30% of production in 2008
(unaudited), 14 million tons or 66% of production in 2009
(unaudited), and 18 million tons or 85% of production in
2010 (unaudited).
The Company’s objectives in managing exposure to interest
rate changes are to limit the impact of interest rate changes on
earnings and cash flows and to lower overall borrowing costs. To
achieve these objectives, the Company uses a swap agreement to
convert a portion of the debt from variable to fixed rate using
a $150 million notional value. A one percentage point
increase in interest rates would result in an annualized
increase to interest expense of $0.9 million on the credit
agreement debt with a $2.4 million increase in variable
interest expense offset by $1.5 million income from the
swap agreement.
The Company is exposed to the risk of fluctuations in cash flows
related to the purchase of diesel fuel. The Company has entered
into forward physical purchase contracts and heating oil swaps
and options to reduce volatility in the price of diesel fuel
annually. The swap agreements essentially fix the price paid for
diesel fuel by requiring the Company to pay a fixed heating oil
price and receive a floating heating oil price. The call options
protect against increases in diesel fuel by granting us the
right to participate in increases in heating oil prices. The
agreements are annual; therefore, the Company recognizes the
gains and losses through cost of mining as normal part of
business. The Company has not entered into a swap agreement for
2008.
The Company is exposed to price risk related to the value of
sulfur dioxide emission allowances that are a component of
quality adjustment provisions in many of the coal supply
contracts. The Company may purchase call options to mitigate the
risk of changes in the fair value of a contract that contains a
fixed price
Notes to
Consolidated Financial
Statements — (Continued)
for sulfur dioxide emission allowances. Currently, the Company
has not entered into a sulfur dioxide emission contract. It is
difficult to predict the impact of complying with such
regulations. Management believes that the quality of the
Company’s coal reserves and market forces will serve to
mitigate the adverse affect of existing and new regulations.
During the year ended December 31, 2007, the Company sold
16.1 million tons of captive coal and 2.2 million of
purchased coal (unaudited). Sales were primarily to electricity
generating and industrial users in the eastern half of the
United States.
For the year ended December 31, 2007, 93% of captive coal
sales were to U.S. electricity generators and 7% were to
other domestic coal producers. For the year ended
December 31, 2007, two customers accounted for 37% and 20%
of captive coal sales revenue.
Amounts due from coal sales to electric generating companies and
their affiliates represent 91% and 80% of trade accounts
receivable due the Company at December 31, 2007 and 2006,
respectively. The Company had 8% and 20% of accounts receivable
due from coal producing entities at December 31, 2007 and
2006, respectively. In 2007, there were three customers who
represented 29%, 17%, and 15% of the Company’s trade
accounts receivable balance. In 2006, there were five customers
who represented 33%, 15%, 12%, 11%, and 10% of the
Company’s trade accounts receivable balance. No other
customers exceeded 10% of the Company’s trade credit
exposure.
15.
Related-Party
Transactions
ArcLight advanced the Company $22 million in funding for
operations through the date of recapitalization, at which time
the funds were repaid. In January 2007, ArcLight purchased from
a third party, rights to a royalty stream based on coal mined on
certain properties. The royalty payments in 2007 were
$2.0 million.
The Arch Properties did not maintain separate stand-alone
treasury, legal, tax, or other similar corporate support
functions. Expenses for selling, general, and administrative
expenses were allocated from Arch based on Arch’s best
estimate of proportional or incremental costs. The allocated
selling, general, and administrative expenses were
$17.7 million in 2005. In addition, net interest expense
was allocated to the Arch Properties based upon the Arch
Properties proportional assets compared to Arch’s assets.
The allocated net interest expense was $7.0 million in 2005.
16.
Commitments
The Company leases equipment under various noncancelable
operating lease agreements. The noncancelable lease agreements
allow the Company to extend the lease agreements annually after
the original lease term. Rental expense related to these
operating leases was $18.3 million, $14.2 million, and
$7.2 million for the years ended December 31, 2007,
2006, and 2005, respectively.
The Company also leases coal reserves under agreements that
require royalties to be paid as the coal is mined. The
agreements require minimum monthly royalties to be paid
regardless of the amount of coal mined during the year. Royalty
expense related to these agreements was $46.6 million,
$42.7 million, and $33.2 million for the years ended
December 31, 2007, 2006, and 2005, respectively.
Notes to
Consolidated Financial
Statements — (Continued)
Future minimum lease and royalty payments as of
December 31, 2007, are as follows (in thousands):
Operating
Coal
Leases
Reserves
Years ending December 31:
2008
$
15,323
$
7,638
2009
11,044
10,364
2010
5,186
8,933
2011
878
8,537
2012
—
8,052
2013 and thereafter
—
32,955
Total minimum lease payments
$
32,431
$
76,479
17.
Quarterly
Financial Information (Unaudited)
Financial information for the Company for each quarter is below
(in thousands):
First
Second
Third
Fourth
Quarter
Quarter
Quarter
Quarter
2007
Net sales
$
216,543
$
258,255
$
225,790
$
196,666
Operating income (loss) before depreciation, depletion, and
amortization
3,689
17,350
3,400
(5,109
)
Loss from continuing operations
(28,845
)
(15,559
)
(32,409
)
(40,957
)
Net loss
(31,117
)
(16,625
)
(32,341
)
(41,474
)
2006
Net sales
144,678
210,390
219,188
236,526
Operating (loss) income before depreciation, depletion, and
amortization
(2,205
)
16,121
22,824
38,052
(Loss) income from continuing operations
(37,159
)
(17,563
)
(13,341
)
5,815
Net (loss) income
(37,159
)
(17,423
)
(30,352
)
7,043
18.
Contingencies
The Company, in the course of its business activities, is
exposed to a number of risks, including the possibilities of the
termination or alteration of coal sales contracts, fluctuating
market conditions of demand for coal and transportation and fuel
costs, competitive industry, changing government regulations,
unexpected maintenance and equipment failure, employee benefit
cost control, changes in estimates of proven and probable coal
reserves, obtaining and maintaining necessary mining permits,
and control of adequate recoverable mineral reserves. In
addition, adverse weather and geological conditions may increase
operating costs.
In 2007, the Company had certain sales contract commitments to
customers for delivery of 0.3 million tons of coal. The
sales contracts provide the customer the right to demand payment
from the Company for any difference between the price paid per
ton for any open market purchases and the contract price for
tons not delivered under the contracts. It is unknown whether or
not these customers purchased coal in the open market to cover
the undelivered coal during 2007. However, had the entire amount
of undelivered tons been purchased by customers in open market
transactions and all of the customers demanded payment from the
Company for the difference in price, the potential claim against
the Company would approximate $3.9 million. The
Notes to
Consolidated Financial
Statements — (Continued)
Company has not been presented with any demands for payment nor
have any customers indicated their intent to do so.
The Company and certain of its subsidiaries are defendants in
civil actions filed in West Virginia for damages arising from
flooding that occurred in southern West Virginia in 2001 and
2002. The plaintiffs have sued coal, timber, oil and gas, and
land companies under the theory that the companies have caused
natural surface waters to be diverted in an unnatural way which
caused damage to the plaintiffs. Pursuant to the purchase and
sale agreement between Arch and the Company dated
December 31, 2005, Arch agreed to indemnify and hold
harmless the Company from any and all damages incurred in
connection with this litigation.
Certain of the Company’s subsidiaries are the subject of
proceedings in federal and state court and before the
Environmental Quality Board involving alleged violations of the
Clean Water Act stemming from discharges of selenium exceeding
statutory limits. Also, by letter dated January 25, 2008,
the Company received a request for information from the United
States Environmental Protection Agency concerning compliance of
the Company’s operating subsidiaries with the Clean Water
Act. The outcome of these actions is unknown at this time. Due
to the uncertainty of the outcome and the Company’s
inability to reasonably estimate the magnitude of penalties, if
any, no provision for these claims has been recorded in the
Company’s financial statements. The ultimate outcome may,
however, be material to the results of operations of a
particular period in which the costs of resolution, if any, are
recognized.
The Company and its subsidiaries are defendants in various other
legal proceedings, including employee related matters, arising
from their business operations in which substantial monetary
damages are sought. The results of any future legal actions
relating to such proceedings are inherently unpredictable, and
it is impossible to predict the ultimate outcome at this time.
However, the Company believes that the resolution of such
matters will not have a material impact on the financial
position of the Company. The ultimate outcome may, however, be
material to the results of operations of a particular period in
which the costs of resolution, if any, are recognized.
Less accumulated depreciation, depletion and amortization
(443,652
)
(426,090
)
Property, plant, equipment and mine development, net
871,820
876,289
Notes receivable
129,495
126,381
Investments and other assets
27,360
27,948
Total assets
$
1,227,534
$
1,199,837
LIABILITIES AND STOCKHOLDERS’ EQUITY
Current liabilities
Short-term borrowings
$
22,500
$
—
Trade accounts payable
76,690
66,811
Accrued expenses
113,485
117,708
Total current liabilities
212,675
184,519
Long-term debt, less current maturities
10,453
11,438
Asset retirement obligations
136,409
134,364
Workers’ compensation obligations
192,636
192,730
Accrued postretirement benefit costs
529,269
527,315
Obligation to industry fund
30,255
31,064
Other noncurrent liabilities
32,149
36,091
Total liabilities
1,143,846
1,117,521
Stockholders’ equity:
Common stock ($0.01 par value; 100,000,000 shares
authorized; 26,760,377 and 26,758,768 shares issued and
outstanding at March 31, 2008 and December 31, 2007,
respectively)
268
268
Additional paid-in capital
191,410
189,451
Accumulated deficit
(36,429
)
(33,363
)
Accumulated other comprehensive loss
(71,561
)
(74,040
)
Total stockholders’ equity
83,688
82,316
Total liabilities and stockholders’ equity
$
1,227,534
$
1,199,837
See accompanying notes to unaudited condensed consolidated
financial statements.
Notes to Unaudited Condensed Consolidated Financial
Statements
(1)
Basis of
Presentation
Basis
of Presentation
Effective October 31, 2007, Patriot Coal Corporation
(Patriot) was spun off from Peabody Energy Corporation
(Peabody). Patriot includes coal assets in Appalachia and the
Illinois Basin and operations in West Virginia and Kentucky. The
spin-off was accomplished through a dividend of all outstanding
shares of Patriot, resulting in Patriot becoming a separate,
publicly-traded company traded on the New York Stock Exchange
(symbol PCX).
All significant transactions, profits and balances have been
eliminated between Patriot and its subsidiaries. Patriot
operates in two domestic coal segments; Appalachia and the
Illinois Basin (see Note 9).
The statement of operations and cash flows and related
discussions below for the three months ended March 31, 2007
primarily relate to Patriot’s historical results and may
not necessarily reflect what its results of operations and cash
flows will be in the future or would have been as a stand-alone
company. Upon the completion of the spin-off, Patriot’s
capital structure changed significantly. At the spin-off date,
Patriot entered into various operational agreements with
Peabody, including certain on-going agreements that enhance both
the financial position and cash flows of Patriot. Such
agreements include the assumption by Peabody of certain retiree
healthcare liabilities and the repricing of a major coal supply
agreement to be more reflective of the then current market
pricing for similar quality coal.
The accompanying condensed consolidated financial statements as
of March 31, 2008 and 2007 and for the three months then
ended, and the notes thereto, are unaudited. However, in the
opinion of management, these financial statements reflect all
normal, recurring adjustments necessary for a fair presentation
of the results of the periods presented. Operating results for
the three months ended March 31, 2008 may not
necessarily be indicative of the results for the year ended
December 31, 2008. The balance sheet information as of
December 31, 2007 was derived from Patriot’s audited
consolidated balance sheet.
Description
of Business
Patriot is engaged in the mining of thermal coal, also known as
steam coal, for sale primarily to electric utilities and
metallurgical coal for sale to steel mills and independent coke
producers. Patriot’s mining operations and coal reserves
are located in the eastern and midwestern United States,
primarily in West Virginia and Kentucky.
(2)
New
Accounting Pronouncements
FASB
Statement No. 157
In September 2006, the Financial Accounting Standards Board
(FASB) issued Statement No. 157, “Fair Value
Measurements.” Statement of Financial Accounting Standards
(SFAS) No. 157 defines fair value, establishes a framework
for measuring fair value under generally accepted accounting
principles, and expands disclosures about fair value measures.
SFAS No. 157 clarifies that fair value is a
market-based measurement that should be determined based on the
assumptions that market participants would use in pricing an
asset or liability. SFAS No. 157 is effective for
fiscal years beginning after November 15, 2007. The
provisions of SFAS No. 157 are to be applied on a
prospective basis, with the exception of certain financial
instruments for which retrospective application is required. The
Company adopted SFAS No. 157 in the first quarter of
2008 with no impact to the financial statements.
FASB
Statement No. 159
In February 2007, the FASB issued Statement No. 159,
“The Fair Value Option for Financial Assets and Financial
Liabilities.” SFAS No. 159 permits entities to
choose to measure many financial instruments and
Notes to Unaudited Condensed Consolidated Financial
Statements — (Continued)
certain other items at fair value that are not currently
required to be measured at fair value. Entities electing the
fair value option will be required to recognize changes in fair
value in earnings and to expense upfront costs and fees
associated with each item for which the fair value option is
elected. SFAS No. 159 is effective for fiscal years
beginning after November 15, 2007. The Company adopted
SFAS 159 in the first quarter of 2008 with no impact to the
financial statements since it has not elected fair value
treatment for any items not currently required to be measured at
fair value.
(3)
Gain on
Disposal of Assets
In the first quarter of 2007, Patriot sold approximately
35.1 million tons of non-strategic coal reserves and
surface lands located in Kentucky for cash of $14.3 million
and notes receivable of $32.2 million. Patriot recognized
gains totaling $35.2 million on these transactions.
(4)
Income
Tax Benefit
The Company reported an income tax benefit of $0.9 million
for the three months ended March 31, 2008, based on the
forecasted effective tax rate for the current year. For the
three months ended March 31, 2007, no income tax provision
was recorded due to projected net operating losses for the year
ended December 31, 2007.
(5)
Earnings
per Share
Basic earnings per share is computed by dividing net income by
the number of weighted average common shares outstanding during
the reporting period. Diluted earnings per share is calculated
to give effect to all potentially dilutive common shares that
were outstanding during the reporting period. Earnings (loss)
per share is not presented for periods prior to October 31,2007, because Patriot was wholly-owned by Peabody and its
affiliates prior to the initial distribution.
For the three months ended March 31, 2008,
77,078 shares were excluded from the diluted earnings per
share calculations for the Company’s common stock because
they were anti-dilutive.
Raw coal represents coal stockpiles that may be sold in current
condition or may be further processed prior to shipment to a
customer. Saleable coal represents coal stockpiles that will be
sold in current condition. Coal inventory costs include labor,
supplies, equipment, operating overhead and other related costs.
Materials, supplies and coal inventory are valued at the lower
of average cost or market.
Accumulated actuarial loss and prior service cost realized
2,479
9,517
Comprehensive loss
$
(587
)
$
(2,434
)
Comprehensive income differs from net income by the amount of
unrealized loss resulting from the amortization of actuarial
loss and prior service cost as required by
SFAS No. 158, “Employers’ Accounting for
Defined Benefit Pension and Other Postretirement Plans.”
(8)
Postretirement
Benefit Costs
Net periodic postretirement benefit costs included the following
components:
Interest cost on accumulated postretirement benefit obligation
9,198
18,272
Amortization of prior service cost
(170
)
(87
)
Amortization of actuarial loss
3,245
9,795
Net periodic postretirement benefit costs
$
12,476
$
28,126
Net periodic postretirement benefits costs for the three months
ended March 31, 2007 included costs related to certain
retiree healthcare liabilities that were assumed by Peabody at
the spin-off.
(9)
Segment
Information
Patriot reports its operations through two reportable operating
segments, Appalachia and Illinois Basin. The Appalachia and
Illinois Basin segments primarily consist of Patriot’s
mining operations in West Virginia and Kentucky, respectively.
The principal business of the Appalachia segment is the mining,
preparation and sale of thermal coal, sold primarily to electric
utilities and metallurgical coal, sold to steel and coke
producers. The principal business of the Illinois Basin segment
is the mining, preparation and sale of thermal coal, sold
primarily to electric utilities. For the three months ended
March 31, 2008, 71% of Patriot’s sales were to
electricity generators and 29% to steel and coke producers. For
the three months ended March 31, 2008 and 2007,
Patriot’s revenues attributable to foreign countries, based
on where the product was shipped, were $55.4 million and
$29.8 million, respectively. Patriot primarily utilizes
underground mining methods and produces coal with high and
medium Btu content. Patriot’s operations have relatively
short shipping distances from the mine to most of its domestic
utility customers and certain metallurgical coal customers.
“Corporate and Other” includes selling and
administrative expenses, net gains on disposal of assets and
costs associated with past mining obligations.
Patriot’s chief operating decision makers use Adjusted
EBITDA as the primary measure of segment profit and loss.
Adjusted EBITDA is defined as net income (loss) before deducting
net interest expense, income
Notes to Unaudited Condensed Consolidated Financial
Statements — (Continued)
taxes, minority interests, asset retirement obligation expense
and depreciation, depletion and amortization. Because Segment
Adjusted EBITDA is not calculated identically by all companies,
our calculation may not be comparable to similarly titled
measures of other companies.
Operating segment results for the three months ended
March 31, 2008 and 2007 were as follows:
As of March 31, 2008, purchase commitments for capital
expenditures were $42.7 million.
Other
At times Patriot becomes a party to claims, lawsuits,
arbitration proceedings and administrative procedures in the
ordinary course of business. Management believes that the
ultimate resolution of such pending or threatened proceedings is
not reasonably likely to have a material effect on
Patriot’s financial position, results of operations or cash
flows.
Notes to Unaudited Condensed Consolidated Financial
Statements — (Continued)
(11)
Guarantees
In the normal course of business, Patriot is a party to
guarantees and financial instruments with off-balance-sheet
risk, such as bank letters of credit, performance or surety
bonds and other guarantees and indemnities, which are not
reflected in the accompanying condensed consolidated balance
sheets. Such financial instruments are valued based on the
amount of exposure under the instrument and the likelihood of
required performance. In Patriot’s past experience,
virtually no claims have been made against these financial
instruments. Management does not expect any material losses to
result from these guarantees or off-balance-sheet instruments.
As of March 31, 2008, Peabody continued to guarantee
certain bonds related to Patriot liabilities that had not yet
been replaced by Patriot surety bonds, in the aggregate amount
of $2.8 million.
Other
Guarantees
Patriot is the lessee and sublessee under numerous equipment and
property leases. It is common in such commercial lease
transactions for Patriot, as the lessee, to agree to indemnify
the lessor for the value of the property or equipment leased,
should the property be damaged or lost during the course of
Patriot’s operations. Patriot expects that losses with
respect to leased property would be covered by insurance
(subject to deductibles). Patriot and certain of its
subsidiaries have guaranteed other subsidiaries’
performance under their various lease obligations. Aside from
indemnification of the lessor for the value of the property
leased, Patriot’s maximum potential obligations under their
leases are equal to the respective future minimum lease
payments, assuming no amounts could be recovered from third
parties.
(12)
Related
Party Transactions
Prior to the spin-off, Patriot routinely entered into
transactions with Peabody and its affiliates. The terms of these
transactions were outlined in agreements executed by Peabody and
its affiliates.
Selling and administrative expenses include $10.9 million
for the three months ended March 31, 2007 for services
provided by Peabody and represent an allocation of Peabody
general corporate expenses to all of its mining operations, both
foreign and domestic, based on principal activity, headcount,
tons sold and revenues as applicable to the specific expense
being allocated. The allocated expenses generally reflected
service costs for: marketing and sales, legal, finance and
treasury, public relations, human resources, environmental
engineering and internal audit. Different general accounting
allocation bases or methods could have been used and could have
resulted in significantly different operating results. The
allocation from Peabody was not necessarily indicative of the
selling and administrative expenses that would have been
incurred if Patriot had been an independent entity.
Patriot recognized interest expense of $1.2 million for the
three months ended March 2007 related to a $62.0 million
intercompany demand note payable to Peabody, which was forgiven
at spin-off.
For the three months ended March 31, 2007, substantially
all of Patriot’s tons sold were through a marketing
affiliate of Peabody, which negotiated and maintained coal sales
contracts. These sales were made at prices paid by outside
third-party customers. For the three months ended March 31,2008, the Company sold 3.3 million tons of coal resulting
in revenues of $160.3 million to this Peabody marketing
affiliate.
Patriot entered into certain agreements with Peabody to provide
certain transition services following the spin-off. At
March 31, 2008, Peabody continues to provide support to
Patriot related to information technology, engineering, land
management and certain accounting services. For the three months
ended March 31, 2008, transition services expense was
$0.8 million.
Notes to Unaudited Condensed Consolidated Financial
Statements — (Continued)
(13)
Subsequent
Event
On April 2, 2008, Patriot entered into an agreement to
acquire Magnum Coal Company (Magnum). Magnum is one of the
largest coal producers in Appalachia, operating 11 mines and 7
preparation plants with more than 60% of its production from
surface mines. Under the terms of the agreement, Magnum
stockholders will receive approximately 11.9 million shares
of newly-issued Patriot common stock. In addition, Patriot will
assume net debt estimated at $150 million, bringing the
total purchase price to approximately $709 million based on
the April 2, 2008 closing price of Patriot common stock.
The acquisition is subject to certain regulatory approvals and
customary closing conditions. The issuance of common stock is
subject to approval by Patriot stockholders. The proposed
transaction is expected to be completed during the second or
third quarter of 2008.
In connection with the agreement to acquire Magnum, we entered
into an amendment to our credit facility dated April 2,2008, which, among other things, (i) permits the merger
with Magnum and the transactions contemplated by the merger
agreement, (ii) increases the rate of interest applicable
to loans under the credit facility and (iii) modifies
certain covenants and related definitions to allow for changes
in permitted indebtedness, permitted liens, permitted capital
expenditures and other changes in respect of us and our
subsidiaries in connection with the acquisition. The increase in
the interest rate and covenant modifications are effective with
the closing of the acquisition.
Common stock — $0.01 per share par value;
52,200,000 shares authorized, 51,675,226 shares
issued, and 49,718,206 shares outstanding as of
March 31, 2008 and December 31, 2007
Magnum Coal Company (the Company) was formed on October 5,2005 by ArcLight Energy Partners Fund I L.P. for the
purpose of acquiring certain properties from Arch Coal, Inc.,
Trout Coal Holdings, LLC and Dakota, LLC, and the labor
companies associated with Trout and Dakota. On December 31,2005, Magnum acquired properties from Arch Coal.
On March 21, 2006, as part of a recapitalization of Magnum,
ArcLight Energy Partners Fund I L.P. and Timothy Elliott
contributed 100% of their equity interests in Trout Coal
Holdings, LLC and New Trout Coal Holdings II, LLC, which
together held all of the equity interests in certain
subsidiaries that now form part of the Magnum group of
companies, in exchange for common stock of Magnum.
Magnum produces, processes and sells bituminous coal with high
heat value and low sulfur content. Magnum’s production is
sold as steam coal to utilities and other customers for use in
electricity generation and as metallurgical coal for use in the
production of metallurgical coke. Magnum’s mining
operations are located in West Virginia.
The accompanying condensed consolidated financial statements as
of March 31, 2008 and 2007 and for the three months then
ended, and the notes thereto, are unaudited. In the opinion of
management, these financial statements reflect all normal,
recurring adjustments necessary for a fair presentation of the
results of the periods presented. The results of operation for
the three months ended March 31, 2008 may not
necessarily be indicative of the results for the year ended
December 31, 2008. The balance sheet as of
December 31, 2007 was derived from Magnum’s audited
consolidated balance sheet.
On April 2, 2008, the Company entered an agreement with
Patriot Coal Corporation (Patriot) that would result in the
acquisition of the Company by Patriot. See Note 11 for more
details.
2.
New
Accounting Pronouncements
FASB
Statement No. 157
In September 2006, the Financial Accounting Standards Board
(FASB) issued Statement No. 157, “Fair Value
Measurements.” Statement of Financial Accounting Standards
(SFAS) No. 157 defines fair value, establishes a framework
for measuring fair value under generally accepted accounting
principles, and expands disclosures about fair value measures.
SFAS No. 157 clarifies that fair value is a
market-based measurement that should be determined based on the
assumptions that market participants would use in pricing an
asset or liability. The Company adopted the provisions of
SFAS No. 157 on January 1, 2008 as required and
adoption did not have a material impact on the consolidated
financial statements.
SFAS No. 157 establishes a three-level fair value
hierarchy on how the fair values are measured for the assets and
liabilities based on the observability of the inputs utilized in
the valuation. The levels are Level 1 quoted prices in an
active market, Level 2 inputs other than a quoted price
market that are directly or indirectly observable through market
corroborated inputs, and Level 3 inputs that are
unobservable and requires the Company to make assumptions about
pricing by market participants.
Level 2
The Company had a Level 2 measurement for a
$3.1 million interest rate swap financial liability. The
Company recognized $2.3 million of losses on the condensed
consolidated statement of operations for the three months ended
March 31, 2008 and has a $3.1 million liability in
accrued expenses and other current liabilities. The information
was derived from utilizing inputs obtained in quoted public
markets and information received from the corresponding party.
Notes to
Unaudited Condensed Consolidated Financial
Statements — (Continued)
Level 3
In March 2008, Magnum completed a coal reserve exchange
transaction with a third party for $14.6 million. Due to
Magnum’s continuing involvement gains will be deferred. The
information consisted of Level 3 inputs which included the
discounted cash flows of future production at the mines and the
timing of the mining in the area. The deferred revenue will be
recognized as the reserves are mined in future periods.
FASB
Statement No. 159
In February 2007, the FASB issued SFAS No. 159,
“The Fair Value Option for Financial Assets and Financial
Liabilities.” SFAS No. 159 permits entities to
choose to measure many financial instruments and certain other
items at fair value that are not currently required to be
measured at fair value. Entities electing the fair value option
are required to recognize changes in fair value in earnings and
to expense upfront costs and fees associated with each item for
which the fair value option is elected. The Company has not
elected fair value treatment for any items not currently
required to be measured at fair value.
3.
Inventories
Inventories include stockpiled coal, parts, and supplies. Coal
and supplies inventories are valued at the lower of average cost
or market. Coal inventory costs include labor, equipment costs
and operating overhead. The Company recorded a valuation
allowance for slow-moving and obsolete supplies inventories of
$8.2 million and $8.3 million at March 31, 2008
and December 31, 2007, respectively.
Inventories consist of the following (in thousands):
During 2007, the Company restructured a below market sales
contract to reduce future shipments in exchange for a discounted
price on tons remaining to be shipped. The Company has reported
a $3.0 million deferred liability which is included on the
balance sheet as a part of the below market coal sales supply
contract acquired liability. The Company recognized
$0.2 million of revenue from the restructure of the
contract which is included on the statements of operations as
Gain on coal sales supply contract restructuring for the three
months ended March 31, 2008.
Coal sales contracts acquired have been recorded at their
estimated fair value at the date of acquisition. These sales
contracts were valued at the present value of the difference
between the stated price in the acquired contract, net of
royalties and taxes, and the market prices for new contracts of
similar duration and coal quality at the date of acquisition.
Using this approach to valuation, certain contracts, where the
expected contract price is below market price at the date of
acquisition, have a negative value and were classified as a net
liability, while contracts above market have a positive value
and were classified as assets. The liability is accreted and the
asset is amortized to income over the term of the contracts
based on the tons of coal shipped under each contract. For the
three months ended March 31, 2008, accretion credits were
$15.0 million, and for the three months ended
March 31, 2007, net amortization charges were
$0.5 million. The accretion and amortization are recorded
on the condensed consolidated statement of operations as sales
contract (accretion) amortization.
Notes to
Unaudited Condensed Consolidated Financial
Statements — (Continued)
Based on expected shipments related to these contracts, the
Company expects to record annual amortization expense and
accretion income related to sales contracts in each of the next
five years as reflected in the table below (in thousands).
Change in actuarial gains for other postretirement benefits
(2,016
)
Accumulated other comprehensive income at March 31, 2008
$
77,645
6.
Debt and
Capital Leases
On March 21, 2006, the Company entered into a credit
facility which consisted of a $200 million term loan, a
$40 million revolving credit facility and a
$20 million synthetic letter of credit facility. In
December 2006, the synthetic letter of credit facility was
increased to $50 million. The term loan and synthetic
letter of credit facility have a term of seven years and the
revolving credit facility has a term of five years. The credit
facility is secured, bears interest at LIBOR plus a margin, and
has certain mandatory prepayments based on cash flow and cash
proceeds from issuance of debt or equity and certain financial
covenants including overall leverage and interest coverage
ratios. The term loan amortizes at 1% per year until maturity.
The revolver is due at maturity and includes a fee on the unused
portion. The synthetic letter of credit facility bears interest
equal to the margin over LIBOR plus 0.1%.
In March 2008, the Company amended its credit facility to cure
primary financial covenant defaults existing at
December 31, 2007. In addition to curing the defaults, the
amendment (1) waived primary financial covenants for the quarter
ending March 31, and modified primary financial covenants
for the quarters ending June 30 and September 30, 2008,
(2) authorized the issuance of $100 million in
convertible second liens notes, and (3) authorized the
Company to enter into sale/leaseback transactions up to
$25 million in the aggregate. Pursuant thereto, the Company
will issue $100 million of convertible notes to certain
existing shareholders, the proceeds of which will be utilized to
pay down existing indebtedness, pay increased interest of 2.75%
and pay up front fees of 0.25%. If the proposed transaction with
Patriot is terminated or if it occurs after September 30,2008, the interest rate on the existing facility increases by an
additional 1.00%, a 0.75% fee is payable and an additional 0.75%
fee is payable on the earlier of six months after 1) the
Patriot transaction is terminated, 2) September 30,2008 or 3) payoff of the facility. The Company has recorded
$3.6 million of cost associated with credit facility
amendment on the statement of operations during the three months
ended March 31, 2008.
Notes to
Unaudited Condensed Consolidated Financial
Statements — (Continued)
On March 26, 2008, the Company issued the aforementioned
$100 million in subordinated second lien convertible notes
which mature in 2013. The proceeds from the notes were used to
pay down indebtedness of the then existing facility as discussed
above. The notes bear interest at 10% payable quarterly in kind,
have a second lien security interest in the assets securing the
existing credit facility and are convertible into the
Company’s common stock at a price ranging from $7.50 to
$8.87 per share dependent upon certain conditions. The notes
provide for mandatory redemption upon a change of control (as
defined in the Company’s existing credit facility) and
contain no financial maintenance covenants.
The Company, pursuant to a joint refinancing agreement entered
into in 2006, is utilizing a future interest rate swap agreement
to modify the interest characteristics of outstanding debt. The
future swap agreement converts variable-rate debt to fixed-rate
debt. The interest rate swap agreement was amended due to the
amendment of the credit facility. The notional value decreased
from 150 million to 110 million and the fixed LIBOR
rate increased from 4.49% to 5.40%.
Debt and capital leases as of the following date (in thousands):
Future maturities of borrowings and capital leases are as
follows as of March 31, 2008 (in thousands):
Credit
Capital
Facility
Lease
Borrowing
Obligation
1st year
$
22,000
$
3,861
2nd year
2,000
4,188
3rd year
2,000
4,482
4th year
2,000
479
5th year
2,000
—
Thereafter
206,139
—
$
236,139
$
13,010
7.
Income
Taxes
For the three months ended March 31, 2008, Magnum
recognized an income tax expense of $1.3 million due to a
valuation reserve change. Magnum recognized actuarial gains on
long term liabilities that affected other comprehensive income,
deferred taxes, and valuation reserves. For the three months
ended March 31, 2007, no income tax benefit was recorded
due to the uncertainty of realization.
Notes to
Unaudited Condensed Consolidated Financial
Statements — (Continued)
8.
Other
Postretirement Benefits
Net periodic postretirement benefit costs for the three months
ended March 31, 2008 and 2007 included the following
components (in thousands):
2008
2007
Components of pension benefit costs
Service cost
$
1,255
$
604
Interest cost
7,925
8,656
$
9,180
$
9,260
9.
Commitments
The Company leases equipment under various non-cancelable
operating lease agreements. The non-cancelable lease agreements
allow the Company to extend the lease agreements annually after
the original lease term. The Company entered into a contract
with a customer in which the customer prepaid cash of
$11.7 million, which is recorded as deferred revenue in
Accrued expenses and other current liabilities, for shipments to
be delivered within a year of the date of the contract.
10.
Contingencies
The Company, in the course of its business activities, is
exposed to a number of risks, including the possibilities of the
termination or alteration of coal sales contracts, fluctuating
market conditions of demand for coal and transportation and fuel
costs, competitive industry, changing government regulations,
unexpected maintenance and equipment failure, employee benefit
cost control, changes in estimates of proven and probable coal
reserves, obtaining and maintaining necessary mining permits,
and control of adequate recoverable mineral reserves. In
addition, adverse weather and geological conditions may increase
operating costs.
The Company and certain of its subsidiaries are defendants in
civil actions filed in West Virginia for damages arising from
flooding that occurred in southern West Virginia in 2001 and
2002. The plaintiffs have sued coal, timber, oil and gas, and
land companies under the theory that the companies have caused
natural surface waters to be diverted in an unnatural way which
caused damage to the plaintiffs. Pursuant to the purchase and
sale agreement between Arch and the Company dated
December 31, 2005, Arch agreed to indemnify and hold
harmless the Company from any and all damages incurred in
connection with this litigation.
Certain of the Company’s subsidiaries are the subject of
proceedings in federal and state court and before the
Environmental Quality Board involving alleged violations of the
Clean Water Act stemming from discharges of selenium exceeding
statutory limits. Also, by letter dated January 25, 2008,
the Company received a request for information from the United
States Environmental Protection Agency concerning compliance of
the Company’s operating subsidiaries with the Clean Water
Act. The outcome of these actions is unknown at this time. Due
to the uncertainty of the outcome and the Company’s
inability to reasonably estimate the magnitude of penalties, if
any, no provision for these claims has been recorded in the
Company’s financial statements. The ultimate outcome may,
however, be material to the results of operations of a
particular period in which the costs of resolution, if any, are
recognized.
The Company and its subsidiaries are defendants in various other
legal proceedings, including employee related matters, arising
from their business operations in which substantial monetary
damages are sought. The results of any future legal actions
relating to such proceedings are inherently unpredictable, and
it is impossible to predict the ultimate outcome at this time.
However, the Company believes that the resolution of such
matters will not have a material impact on the financial
position of the Company. The ultimate outcome
Notes to
Unaudited Condensed Consolidated Financial
Statements — (Continued)
may, however, be material to the results of operations of a
particular period in which the costs of resolution, if any, are
recognized.
11.
Subsequent
Events
On April 2, 2008, Patriot entered into an agreement to
acquire the Company. Under the terms of the agreement, the
Company’s stockholders will receive approximately
11.9 million shares of newly-issued Patriot common stock.
In addition, Patriot will assume net debt estimated at
$150 million, bringing the total purchase price to
approximately $709 million based on the April 2, 2008
closing price of Patriot common stock. The acquisition is
subject to certain regulatory approvals and customary closing
conditions. The issuance of common stock is subject to approval
by Patriot stockholders. The proposed transaction is expected to
be completed during the third quarter of 2008.
Please sign, date and mail
your proxy card in the
envelope provided as soon
as possible.
ê Please detach along perforated line and mail in the envelope provided. ê
THE BOARD OF DIRECTORS RECOMMENDS VOTING “FOR” PROPOSAL 1.
PLEASE SIGN, DATE AND RETURN PROMPTLY IN THE ENCLOSED ENVELOPE. PLEASE MARK YOUR VOTE IN BLUE OR BLACK INK AS SHOWN HERE þ
To change the address on your account, please check the box at right and
indicate your new address in the address space above. Please note that
changes to the registered name(s) on the account may not be submitted via
this method.
o
FOR
AGAINST
ABSTAIN
1.
The approval of the issuance of up to 11,901,729 shares of
Patriot Coal Corporation common stock to the holders of
common stock of Magnum Coal Company pursuant to the
Agreement and Plan of Merger dated as of April 2, 2008,
among Patriot Coal Corporation, Magnum Coal Company, Colt
Merger Corporation, and ArcLight Energy Partners Fund I, L.P.
and ArcLight Energy Partners Fund II, L.P., acting jointly, as
stockholder representative.
In their discretion, the proxies are authorized to act upon any
other matter as may properly come before the Special Meeting,
including the approval of any proposal to adjourn or postpone
the Special Meeting to a later date to solicit additional
proxies in favor of Proposal 1 in the event there are not
sufficient votes for the approval of Proposal 1 at the Special
Meeting.
If you vote over the Internet or by telephone, please do not mail your card.
MARK “X” HERE IF YOU PLAN TO ATTEND THE MEETING.
o
Signature of Stockholder
Date:
Signature of Stockholder
Date:
Note:
Please sign exactly as your name or names appear on this Proxy. When shares are held jointly,
each holder should sign. When signing as executor, administrator, attorney, trustee or guardian,
please give full title as such. If the signer is a corporation, please sign full corporate name by
duly authorized officer, giving full title as such. If signer is a partnership, please sign in
partnership name by authorized person.
MAIL — Sign, date and mail your proxy card in the envelope
provided as soon as possible.
- OR -
TELEPHONE — Call toll-free 1-800-PROXIES
(1-800-776-9437) in the United States or 1-718-921-8500 from
foreign countries and follow the instructions. Have your
proxy card available when you call.
- OR -
INTERNET — Access “www.voteproxy.com” and follow the on-screen
instructions. Have your proxy card available when you access
the web page.
- OR -
IN PERSON — You may vote your shares in person by attending
the Special Meeting.
COMPANY NUMBER
ACCOUNT NUMBER
You may enter your voting instructions at 1-800-PROXIES in the United States or 1-718-921-8500 from
foreign countries or www.voteproxy.com up until 11:59 PM Eastern Time the day before the cut-off or
meeting date.
ê Please detach along perforated line and mail in the envelope provided IF you are not voting via telephone or the Internet. ê
THE BOARD OF DIRECTORS RECOMMENDS VOTING “FOR” PROPOSAL 1.
PLEASE SIGN, DATE AND RETURN PROMPTLY IN THE ENCLOSED ENVELOPE. PLEASE MARK YOUR VOTE IN BLUE OR BLACK INK AS SHOWN HERE þ
To change the address on your account, please check the box at right and
indicate your new address in the address space above. Please note that
changes to the registered name(s) on the account may not be submitted via
this method.
o
FOR
AGAINST
ABSTAIN
1.
The approval of the issuance of up to 11,901,729 shares of
Patriot Coal Corporation common stock to the holders of
common stock of Magnum Coal Company pursuant to the
Agreement and Plan of Merger dated as of April 2, 2008,
among Patriot Coal Corporation, Magnum Coal Company, Colt
Merger Corporation, and ArcLight Energy Partners Fund I, L.P.
and ArcLight Energy Partners Fund II, L.P., acting jointly, as
stockholder representative.
In their discretion, the proxies are authorized to act upon any
other matter as may properly come before the Special Meeting,
including the approval of any proposal to adjourn or postpone
the Special Meeting to a later date to solicit additional
proxies in favor of Proposal 1 in the event there are not
sufficient votes for the approval of Proposal 1 at the Special
Meeting.
If you vote over the Internet or by telephone, please do not mail your card.
MARK “X” HERE IF YOU PLAN TO ATTEND THE MEETING.
o
Signature of Stockholder
Date:
Signature of Stockholder
Date:
Note:
Please sign exactly as your name or names appear on this Proxy. When shares are held jointly,
each holder should sign. When signing as executor, administrator, attorney, trustee or guardian,
please give full title as such. If the signer is a corporation, please sign full corporate name by
duly authorized officer, giving full title as such. If signer is a partnership, please sign in
partnership name by authorized person.
Proxy/Voting Instruction Card for Special Meeting of Stockholders to be held on July 22, 2008
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
The undersigned hereby constitutes and appoints Richard M. Whiting, Mark N. Schroeder and
Joseph W. Bean, or any of them, with power of substitution to each, proxies to represent the
undersigned and to vote, as designated on the reverse side of this form, all shares of Common Stock
which the undersigned would be entitled to vote at the Special Meeting of Stockholders of Patriot
Coal Corporation (Patriot) to be held on July 22, 2008 at the Donald Danforth Plant Science Center
at 975 North Warson Road, St. Louis, MO63132 at 10:00 A.M., and at any adjournments or
postponements thereof. The undersigned hereby further authorizes such proxies to vote in their
discretion with respect to such other business as may properly come before the meeting and any
adjournments or postponements thereof.
If the undersigned is a participant in the Patriot Coal Corporation 401(k) Retirement Plan,
this proxy/voting instruction card also provides voting instructions to the trustee of such plan to
vote at the Special Meeting, and any adjournments thereof, as specified on the reverse side hereof.
If the undersigned is a participant in this plan and fails to provide voting instructions, the
trustee will vote the undersigned’s plan account shares (and any shares not allocated to individual
participant accounts) in proportion to the votes cast by other participants in that plan.
The shares represented by this proxy/voting instruction card will be voted in the manner
indicated by the stockholder. In the absence of such indication, such shares will be voted FOR
Proposal 1. The shares represented by this proxy will be voted in the discretion of said proxies
with respect to such other business as may properly come before the meeting and any adjournments or
postponements thereof.
IMPORTANT — This proxy/voting instruction card must be signed and dated on the reverse side.
(Continued and to be signed on the reverse side)
Dates Referenced Herein and Documents Incorporated by Reference