TABLE OF CONTENTS

SECTION 8.01.	Nonsurvival of Representations and Warranties	98
SECTION 8.02.	Notices	98
SECTION 8.03.	Definitions	99
SECTION 8.04.	Interpretation	102

 

 

 

 

 

SECTION 8.05.	Consents and Approvals	103
SECTION 8.06.	Counterparts	103
SECTION 8.07.	Entire Agreement; Third-Party Beneficiaries	103
SECTION 8.08.	GOVERNING LAW	104
SECTION 8.09.	Assignment	104
SECTION 8.10.	Specific Enforcement; Consent to Jurisdiction; Waiver of Jury Trial	104
SECTION 8.11.	Severability	105
SECTION 8.12.	Covered Claims	106

 

  (xiii)  cancel any material Indebtedness of a third party to the Company or its Subsidiaries or waive any claims or rights of substantial value, in each case other than (A) in the ordinary course of business or (B) in connection with any settlement permitted by clause (xii) above;

 

 

 

 

  (xiv)  except (A) in the ordinary course of business consistent with past practice, (B) in order to comply with applicable Law, (C) as required pursuant to the terms of any Company Benefit Plan or Company Benefit Agreement in effect on the date of this Agreement, or (D) as permitted by Section 4.01(a)(iv), (1) establish, adopt, enter into, terminate or amend, or take any action to accelerate the vesting or payment of any compensation or benefits under, any collective bargaining agreement, Company Benefit Plan or Company Benefit Agreement (or any award thereunder), (2) grant to any director, officer or employee of the Company or any of its Subsidiaries any material increase in compensation, (3) grant to any director, officer or employee of the Company or any of its Subsidiaries any increase in severance, change in control, retention or termination pay, (4) enter into any employment, consulting, severance, retention, termination or similar agreement with any director, officer or employee of the Company or any of its Subsidiaries, other than any separation agreement or retention agreement pursuant to which the aggregate severance benefits or retention benefits (as applicable) do not exceed $250,000 with respect to any individual or $6 million in the aggregate with respect to all such individuals, (5) change any actuarial or other assumption used to calculate funding obligations with respect to any Company Pension Plan, except to the extent required by GAAP or (6) change the amount of or manner in which contributions to any Company Pension Plan are made or the basis on which such contributions are determined; provided, however, that the foregoing clauses (2), (3) and (4) shall not restrict the Company or any of its Subsidiaries from entering into or making available to newly hired employees or to employees in the context of promotions based on job performance or workplace requirements, in each case in the ordinary course of business, plans, agreements, benefits and compensation arrangements (including incentive grants) that have a value that is, and terms that are, consistent with the past practice of making compensation and benefits available to newly hired or promoted employees in similar positions; and provided, further, that, except as otherwise expressly permitted in clause (iv) of this section, in no event shall the Company enter into any agreement or agreements or amend any existing agreement or agreements that would, individu ally or in the aggregate, result in the issuance of more than 100,000 shares of Company Common Stock or would have a value equal to 100,000 shares of Company Common Stock upon settlement in cash or other property;

 

  (xv)  except as required by applicable Law or Judgment, (A) convene any regular or special meeting (or any adjournment thereof) of the stockholders of the Company other than the Company Stockholder Meeting and the Company’s 2011 annual meeting (provided, that the actions to be considered by the Company’s stockholders at such 2011 annual meeting are limited to (1) the regularly scheduled election of directors (2) ratification of the Company’s auditors, (3) modification of Company Plans as otherwise permitted under this Section 4.01(a), and (4) stockholder proposals properly brought before such meeting), or (B) enter into any Contract or understanding or arrangement with respect to the votin g or registration of capital stock of the Company or any of its Subsidiaries;

 

 

 

 

  (xvi)  make any change in accounting methods, principles or practices materially affecting the consolidated assets, liabilities or results of operations of the Company, other than as required (A) by GAAP (or any interpretation thereof), including as may be required by the Financial Accounting Standards Board or any similar organization or (B) by Law, including Regulation S-X under the Securities Act;

 

  (xvii)  (A) make, change or rescind any (1) material method of Tax accounting or (2) express or deemed election with respect to Taxes, (B) make a request for a Tax ruling or enter into a closing agreement, or settle or compromise any material audit, assessment, Tax claim or other controversy relating to Taxes, (C) file any material amended Tax Return or (D) surrender any material right to claim a refund or offset of any Taxes, in each case other than in the ordinary course of business and (if the consequences of any proposed course of action are material) in consultation with Parent;

 

  (xviii)  adopt a plan of complete or partial liquidation or resolutions providing for a complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of the Company;

 

  (xix)  enter into any agreement that indemnifies or exculpates any director, officer, employee or agent of the Company, any of its Subsidiaries or any of their respective predecessors other than with a newly hired officer, director, employee or agent in the ordinary course of business consistent with past practice; or

 

  (xx)  authorize any of, or commit or agree to take any of, the foregoing actions.

 

                  (b)  Conduct of Business of Parent.  Except as set forth in the Parent Disclosure Letter, contemplated, required or permitted by this Agreement or the Financing Commitment, required by Law or consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed), during the period from the date of this Agreement to the Effective Time, Parent shall, and shall cause each of its Subsidiaries to, carry on its business in the ordinary course and, to the extent consistent therewith, use commercially reasonable efforts to preserve substantially intact its current business organizations, to keep available the services of its current officers and employees and to preserve its relationships with significant customers, suppliers, licensors, licensees, distributors, wholesalers, lessors and others having significant business dealings with it, to preserve the goodwill of and maintain satisfactory relationships with those persons having business relationships with the Parent or any of its Subsidiaries and keep in force the insurance policies and Permits of the Parent and its Subsidiaries.  Without limiting the generality of the foregoing, except as set forth in the Parent Disclosure Letter, contemplated, required or permitted by this Agreement or the Financing Commitment, required by Law (including, as applicable, Section 409A of the Code) or consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed), during the period from the date of this Agreement to the Effective Time, Parent shall not, and shall not permit any of its Subsidiaries to:

 

 

 

 

  (i)  declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any of its capital stock, other than dividends or distributions by a direct or indirect wholly owned Subsidiary of Parent to its parent;

 

  (ii)  solely with respect to Parent, split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in lieu of or in substitution for shares of its capital stock;

 

  (iii)  solely with respect to Parent, purchase, redeem or otherwise acquire any shares of its capital stock or any rights, warrants or options to acquire any such shares, other than (A) the acquisition by Parent of shares of Parent Common Stock in connection with the surrender of shares of Parent Common Stock by holders of awards under Parent Stock Plans in order to pay the exercise price of such awards under Parent Stock Plans, (B) the withholding of shares of Parent Common Stock to satisfy Tax obligations with respect to awards granted pursuant to the Parent Stock Plans, (C) the acquisition by Parent of Parent Common Stock in connection with the forfeiture of awards granted pursuan t to the Parent Stock Plans and (D) the acquisition by Parent of shares of Parent Common Stock pursuant to and in accordance with the May 2010 share repurchase program, each of (A) through (D), with respect to any awards under the Parent Stock Plans, to the extent such awards are outstanding as of the date hereof or are otherwise granted as permitted by this Agreement and, with respect to the share repurchase program, in accordance with its terms in effect on the date of this Agreement or as amended as permitted by this Agreement;

 

              (iv)  issue, deliver or sell any shares of its capital stock, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities, or any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock based performance units, other than, as applicable, (A) upon the exercise or vesting of awards under Parent Stock Plans, in each case, outstanding on the date of this Agreement and in accordance with their terms in effect on the date of this Agreement or thereafter granted as permitted by the provisions of this Section 4.01(b)(iv), (B) grants of awards under Parent Stock Plans, in each case under this clause (B) i n the ordinary course of business consistent with past practice (I) to any officer or employee of the Parent or any of its Subsidiaries in the context of promotions based on job performance or workplace requirements, (II) in connection with new hires, or (III) in connection with normal annual grants to any director, officer or employee of Parent or any of its Subsidiaries; provided, that in no event shall the number of shares of Parent Common Stock underlying or delivered pursuant to such grants, whether paid in cash, shares or other property, exceed, individually or in the aggregate, 100,000, (C) upon the conversion of Parent Convertible Notes outstanding on the date of this Agreement and in accordance with the terms of Parent Convertible Notes Indenture in effect on the date of this Agreement, (D) any such issuance, delivery or sale to Parent or a direct or indirect wholly owned Subsidiary of Parent, or (E) as permitted by Section 4.01(b )(xiv);

 

 

 

 

  (v)  amend the Parent Certificate of Incorporation or the Parent Bylaws or the similar organizational documents of MergerCo other than to (A) reduce the number of directors from time to time in connection with vacancies in the ordinary course of business, or (B) comply with SEC rules and regulations;

 

  (vi)  make any capital contributions to, or investments in, purchase an equity interest in or a substantial portion of the assets of any person or any division or business thereof, if the aggregate amount of the consideration paid or transferred by Parent and its Subsidiaries in connection with all such transactions would exceed $250 million or merge or consolidate with any person, in each case other than any such action solely between or among Parent and its wholly owned Subsidiaries; provided, however, that Parent or any of its Subsidiaries may enter into such a purchase, merger or consolidation only if each such purchase, merger or consolid ation, and all such purchases, mergers and consolidations collectively, would not materially adversely affect or materially delay obtaining the approvals and clearances under Antitrust Laws required in connection with the consummation of the Merger;

 

  (vii)  sell, lease or otherwise dispose of any of its properties or assets (including capital stock of any Subsidiary of Parent) that are material, individually or in the aggregate, to Parent and its Subsidiaries, taken as a whole, other than (A) sales or other dispositions of coal and other minerals and other assets in the ordinary course of business, (B) leases and subleases by Parent or its Subsidiaries of Parent Owned Real Properties and Parent Leased Real Properties, and voluntary terminations or surrenders of Parent Real Property Leases, in each case, if the value of expected lease payments under such lease, sublease or Parent Real Property Lease for the next twelve months would not exceed $750,000, (C) sales, leases or other dispositions to Parent or any of its wholly owned Subsidiaries, (D) sales or dispositions in connection with sale-leaseback transactions relating to equipment purchased in compliance with clause (xi)(A) below, subject to the amount set forth in the equipment line-item in the capital expenditures budget and (E) other sales, leases or dispositions not to exceed $50 million in the aggregate;

 

  (viii)  pledge, encumber or otherwise subject to a Lien (other than a Parent Permitted Lien) any of its material properties or assets (including capital stock of any Subsidiary of Parent), other than in the ordinary course of business consistent with past practice;

 

              (ix)  incur any Indebtedness, other than (1) Indebtedness incurred in the ordinary course of business (including any borrowings under Parent’s existing revolving credit facilities and any letters of credit), (2) Indebtedness incurred in connection with the refinancing of any Indebtedness existing on the date of this Agreement or permitted to be incurred, assumed or otherwise entered into hereunder and using commercially reasonable efforts to obtain favorable terms and conditions, (3) Indebtedness owed to Parent or any of its wholly-owned Subsidiaries and (4) other Indebtedness not in excess, at any one time outstanding, of $100 million;

 

 

 

 

              (x)  make any loans or advances to any other person, other than (A) to Parent or any of its wholly-owned Subsidiaries or (B) in the ordinary course of business consistent with past practice;

 

  (xi)  make any capital expenditures, other than (A) in accordance with Parent’s 2011 capital expenditures budget previously disclosed to the other party (with such budget rolled forward into 2012 on a pro rata basis to the extent the Closing has not occurred, and this Agreement has not terminated, prior to December 31, 2011), provided that any unused amounts in 2011 may be rolled over to 2012, (B) in connection with the repair or replacement of facilities destroyed or damaged due to casualty or accident (whether or not covered by insurance) in Parent’s commercially reasonable judgment and (C) otherwise in an aggregate amount for all such capital expend itures made pursuant to this clause (C) not to exceed $50 million per fiscal year;

 

              (xii)  settle any claim or litigation (in each case, other than any claim related to Taxes), in each case made or pending against Parent or any of its Subsidiaries, or any of their officers and directors in their capacities as such, other than the settlement of claims or litigation in the ordinary course of business which, in any event (A) is for an amount not to exceed, for any such settlement individually, $5 million, net of applicable insurance proceeds and indemnification and (B) would not involve the imposition of injunctive or other non-monetary relief on Parent and its Subsidiaries that materially restricts them from operating their business in substantially the same manner as operated on the date of this Agreement;

 

  (xiii)  cancel any material Indebtedness of a third party to Parent or its Subsidiaries or waive any claims or rights of substantial value, in each case other than (A) in the ordinary course of business or (B) in connection with any settlement permitted by clause (xii) above;

 

  (xiv)  except (A) in the ordinary course of business consistent with past practice, (B) in order to comply with applicable Law, (C) as required pursuant to the terms of any Parent Benefit Plan or Parent Benefit Agreement in effect on the date of this Agreement, or (D) as permitted by Section 4.01(b)(iv),  (1) establish, adopt, enter into, terminate or amend, or take any action to accelerate the vesting or payment of, any compensation or benefits under, any collective bargaining agreement, Parent Benefit Plan or Parent Benefit Agreement (or any award thereunder), (2) grant to any director, officer or employee of Parent or any of its Subsidiaries any material increase in compensation, (3) grant to any director, officer or employee of Parent or any of it s Subsidiaries any increase in severance, change in control, retention or termination pay, (4) enter into any employment, consulting, severance, retention, termination or similar agreement with any director, officer or employee of Parent or any of its Subsidiaries, other than any separation agreement or retention agreement pursuant to which the aggregate severance benefits or retention benefits (as applicable) do not exceed $250,000 with respect to any individual or $6 million in the aggregate with respect to all such individuals, (5) change any actuarial or other assumption used to calculate funding obligations with respect to any Parent Pension Plan, except to the extent required by GAAP or (6) change the amount of or manner in which contributions to any Parent Pension Plan are made or the basis on which such contributions are determined; provided, however, that the foregoi ng clauses (2), (3) and (4) shall not restrict Parent or any of its Subsidiaries from entering into or making available to newly hired employees or to employees in the context of promotions based on job performance or workplace requirements, in each case in the ordinary course of business, plans, agreements, benefits and compensation arrangements (including incentive grants) that have a value that is, and terms that are, consistent with the past practice of making compensation and benefits available to newly hired or promoted employees in similar positions; and provided, further, that, except as otherwise expressly permitted in clause (iv) of this section, in no event shall Parent enter into any agreement or agreements or amend any existing agreement or agreements that would, individually or in the aggregate, result in the issuance of more than 100,000 shares of Parent Common Stock or would have a value equal to 100,000 shares of Parent Common Stock upon settlement in cash or other property;

 

 

 

 

  (xv)  except as required by applicable Law or Judgment, (A) convene any regular or special meeting (or any adjournment thereof) of the stockholders of Parent other than the Parent Stockholders Meeting and Parent’s 2011 annual meeting (provided, that the actions to be considered by Parent’s stockholders at such 2011 annual meeting are limited to (1) the regularly scheduled election of directors, (2) ratification of Parent’s auditors, (3) modification of Parent Plans as otherwise permitted by this Section 4.01(b), and (4) stockholder proposals properly brought before such meeting), or (B) enter into any Contract or understanding or arrangement with respect to the voting or registration of ca pital stock of Parent or any of its Subsidiaries;

 

  (xvi)  make any change in accounting methods, principles or practices materially affecting the consolidated assets, liabilities or results of operations of Parent, other than as required (A) by GAAP (or any interpretation thereof), including as may be required by the Financial Accounting Standards Board or any similar organization or (B) by Law, including Regulation S-X under the Securities Act;

 

  (xvii)  (A) make, change or rescind any (1) material method of Tax accounting or (2) express or deemed election with respect to Taxes, (B) make a request for a Tax ruling or enter into a closing agreement, or settle or compromise any material audit, assessment, Tax claim or other controversy relating to Taxes, (C) file any material amended Tax Return or (D) surrender any material right to claim a refund or offset of any Taxes, in each case other than in the ordinary course of business and (if the consequences of any proposed course of action are material) in consultation with the Company;

 

 

 

 

  (xviii)  adopt a plan of complete or partial liquidation or resolutions providing for a complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of Parent;

 

  (xix)  enter into any agreement that indemnifies or exculpates any director, officer, employee or agent of Parent, any of its Subsidiaries or any of their respective predecessors other than with a newly hired officer, director, employee or agent in the ordinary course of business consistent with past practice; or

 

  (xx)  authorize any of, or commit or agree to take any of, the foregoing actions.

 

(c)  Advice of Changes.  The Company and the Buyer Entities shall promptly give written notice to the other party upon becoming aware of any material event, development or occurrence that would reasonably be expected to give rise to a failure of condition precedent set forth in Section 6.02 (in the case of the Company) or Section 6.03 (in the case of the Buyer Entities).

 

                      SECTION 4.02.  No Solicitation by the Company; Board of Directors of the Company Recommendation.

 

          (a)  The Company shall not, nor shall it authorize or permit any of its Affiliates or any of its or their respective representatives to, (i) directly or indirectly solicit, initiate, induce, knowingly facilitate or knowingly encourage (including by way of providing non-public information) any Company Takeover Proposal or any inquiry, proposal or request for discussion that may reasonably be expected to lead to a Company Takeover Proposal or (ii) directly or indirectly participate in any discussions or negotiations with any person regarding or cooperate in any way with any person (whether or not a person making a Company Takeover Proposal) with respect to any Company Takeover Proposal or any inquiry, proposal or request for discussion that may reasonably be e xpected to lead to a Company Takeover Proposal.  The Company shall, and shall cause its Affiliates and its and their respective representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any person conducted heretofore with respect to any Company Takeover Proposal, or any inquiry or proposal that may reasonably be expected to lead to a Company Takeover Proposal, request the prompt return or destruction of all confidential information previously furnished and immediately terminate all physical and electronic dataroom access previously granted to any such person or its representatives. The Company shall take all actions necessary to enforce its rights under the provisions of any “standstill” agreement between the Company and any person (other than Parent), and shall not grant any waiver of, or agree to any amendment or modification to, any such agreement, to permit such person to submit a Company Takeover Proposal.

 

 

 

 

          (b)  Notwithstanding the foregoing, at any time prior to obtaining the Company Stockholder Approval, in response to a bona fide unsolicited written Company Takeover Proposal that the Board of Directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) (i) constitutes or is reasonably likely to lead to a Superior Company Proposal and (ii) that the failure to take the actions described in clauses (x) and (y) below would be inconsistent with the Board of Directors’ fiduciary duties under applicable Law, and which Company Takeover Proposal was made after the date of this Agreement and did not otherwise result from a knowing or intentional breach of this Section 4.02 , the Company may, subject to compliance with this Section 4.02(b), (x) furnish information with respect to the Company and its Subsidiaries to the person making such Company Takeover Proposal (and its representatives) (provided that all such information has previously been provided to Parent or is provided to Parent prior to or substantially concurrently with the time it is provided to such person) pursuant to a customary confidentiality agreement not less restrictive of such person than the Confidentiality Agreement (including with respect to standstill provisions, provided that under no circumstances shall such standstill provisions expire earlier than the Outside Date), provided, further, that the Company may grant a limited waiver of such standstill provisions to the extent, and only to the extent reasonably necessary to permit the Board of Directors of the Company to engage in the activities expressly permitted by and in accordance with this Section 4.02(b) and Section 4.02(d) under the terms and conditions set forth in this Section 4.02(b) and Section 4.02(d) and (y) participate in discussions regarding the terms of such Company Takeover Proposal and the negotiation of such terms with, and only with, the person making such Company Takeover Proposal (and such person’s representatives); provided, that the Company shall give written notice to Parent after any such determination by the Board of Directors of the Company and prior to taking any of the actions described in the foregoing clauses (x) and (y).  Without limiting the foregoing, it is agreed that any violation of the r estrictions set forth in this Section 4.02 by any representative of the Company or any of its Affiliates shall constitute a breach of this Section 4.02 by the Company.

 

          (c)  Except as set forth below, neither the Board of Directors of the Company nor any committee thereof shall (i) (A) withdraw (or qualify or modify in any manner adverse to Parent), or propose publicly to withdraw (or qualify or modify in any manner adverse to Parent), the Company Board Recommendation, (B) take any action to exempt any person (other than the Buyer Entities and their Affiliates) from the provisions of Section 203 of the DGCL or any other state takeover statute, or (C) approve, recommend or declare advisable, or propose publicly to approve, recommend or declare advisable, any Company Takeover Proposal (any action in this clause (i) being referred to as a “Company Adverse Recommendation Change”) or (ii) approve, recommend or declare advisable, or propose publicly to approve, recommend or declare advisable, or cause or allow the Company or any of its Affiliates to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, alliance agreement, partnership agreement or other agreement or arrangement (an “Acquisition Agreement”) constituting or related to, or that is intended to or would reasonably be expected to lead to, any Company Takeover Proposal, or requiring, or reasonably expected to cause, the Company to abandon, terminate, delay or fail to consummate, or that would otherwise impede, interfere with or be inconsistent with, the Merger or any of the other transactions contemplated by this Agr eement, or requiring, or reasonably expected to cause, the Company to fail to comply with this Agreement (other than a confidentiality agreement referred to in Section 4.02(b)). Notwithstanding the foregoing, at any time prior to obtaining the Company Stockholder Approval and other than in connection with a Company Takeover Proposal, if the Board of Directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, the Board of Directors of the Company may make a Company Adverse Recommendation Change; provided, that the Company has provided Parent five business days’ prior written notice advising Parent that it intends to take such action and specifying, in reaso nable detail, the reasons for such action.

 

 

 

 

          (d)  Notwithstanding the foregoing, at any time prior to obtaining the Company Stockholder Approval, if the Board of Directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) that (i) an unsolicited bona fide written Company Takeover Proposal made after the date of this Agreement and not the result of a breach of this Section 4.02 constitutes a Superior Company Proposal and (ii) the failure to approve or recommend such Superior Company Proposal would be inconsistent with its fiduciary duties under applicable Law, the Board of Directors of the Company may, subject to compliance with this Section 4.02(d), cause the Company to terminate this Agreement in order to enter into a de finitive agreement relating to such Company Takeover Proposal that constitutes a Superior Company Proposal after paying the Company Termination Fee in accordance with Section 5.06(b).  The Company shall provide Parent with five business days’ prior written notice advising Parent that it intends to take such action and specifying, in reasonable detail, the reasons for such action (a “Notice of Superior Proposal”).  A Notice of Superior Proposal shall advise Parent that the Board of Directors of the Company has received a Superior Company Proposal and shall include any information and materials required to be delivered under Section 4.02(e) that have not yet been provided to Parent (including the most recent version of any written agreement relating to the transaction that constitutes a Superior Company Proposal or, if no such written agreement exists, a written summary of the material terms and conditions of such Superior Company Proposal).  If Parent, within five business days following its receipt of a Notice of Superior Proposal (the “Notice Period”), makes an offer that, as determined in good faith by the Board of Directors of the Company (after consultation with outside counsel and a financial advisor of nationally recognized reputation) results in the applicable Company Takeover Proposal no longer being a Superior Company Proposal, then the Company shall have no right to terminate this Agreement pursuant to Section 7.01(g) as a result of such Company Takeover Proposal.  If Parent shall not have made such an offer within the Notice Period, then, within five business days following the expiration of such Notice Period, the Board of Directors of the Company may cause the Company to terminate this Agreement pursuant to Section 7.01(g) in order to enter into a definitive agreement relating to such Company Takeover Proposal that constitutes a Superior Company Proposal after paying the Company Termination Fee in accordance with Section 5.06(b).  During the Notice Period, the Company shall and shall cause its representatives, including its financial advisors and outside counsel, to negotiate in good faith with Parent and its representatives (to the extent Parent desires to negotiate) with respect to any offer from Parent.  Any (A) material revisions to the terms of a Superior Company Proposal or (B) material revisions to a Company Takeover Proposal that the Board of Directors of the Company had determined no longer constitutes a Superior Company Proposal, shall constitute a new Company Takeover Proposal and shall require the Company to deliver to Parent a new Notice of Superior Proposal and a new Notice Period shall commence thereafter.  Except after compliance with the procedures set forth in this Section 4. 02(d), the Company shall have no right to terminate this Agreement pursuant to Section 7.01(g).

 

 

 

 

          (e)  In addition to the obligations of the Company set forth in paragraphs (a), (b), (c) and (d) of this Section 4.02, the Company shall promptly (and in any event within 48 hours) advise Parent orally and in writing of any Company Takeover Proposal or any inquiry, proposal or request for discussions that may reasonably be expected to lead to a Company Takeover Proposal, the material terms and conditions thereof (including any changes thereto) and the identity of the person making any such inquiry, proposal, request for discussions or Company Takeover Proposal.  The Company shall (i) keep Parent promptly informed in all material respects of the status and details (including any change to the terms thereof) of any inquiry, proposal, request for disc ussions or Company Takeover Proposal and (ii) provide to Parent as soon as practicable (and in any event within 48 hours) after receipt or delivery thereof copies of all correspondence and other written material exchanged between the Company or any of its Subsidiaries and any person that describes any of the terms or conditions of any inquiry, proposal, request for discussions or Company Takeover Proposal.

 

          (f)  Nothing contained in this Section 4.02 shall prohibit the Company from (i) taking and disclosing to its stockholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or (ii) making any disclosure to the stockholders of the Company if, in the good faith judgment of the Board of Directors of the Company (after consultation with outside counsel), failure to do so would be inconsistent with its obligations under applicable Law; provided, however, that in no event shall the Company or the Board of Directors of the Company or any committee thereof take, or agree or resolve to take, any action prohibi ted by Section 4.02(c).

 

 

 

 

          (g)  For the avoidance of doubt, the parties agree that none of the actions contemplated or permitted by this Agreement (including this Section 4.02) shall constitute a breach or violation of the Confidentiality Agreement by Parent, its Affiliates or representatives.

 

          (h)  For purposes of this Agreement:

 

“Company Takeover Proposal” means any proposal or offer (whether or not in writing) from any person other than the Buyer Entities and their Affiliates, with respect to any (i) merger, consolidation, share exchange, other business combination or similar transaction involving the Company, (ii) sale, lease, contribution or other disposition, directly or indirectly (including by way of merger, consolidation, share exchange, other business combination, partnership, joint venture, sale of capital stock of or other equity interests in a Company Subsidiary or otherwise) of any business or assets of the Company or the Company Sub sidiaries representing 20% or more of the consolidated revenues, net income or assets of the Company and the Company Subsidiaries, taken as a whole, (iii) issuance, sale or other disposition, directly or indirectly, to any person (or the stockholders of any person) or group of securities (or options, warrants or other rights to acquire, or securities convertible into or exchangeable for, such securities) representing 20% or more of the voting power of the Company, (iv) transaction in which any person (or the stockholders of any person) shall acquire, directly or indirectly, beneficial ownership, or the right to acquire beneficial ownership, or formation of any group which beneficially owns or has the right to acquire beneficial ownership of, 20% or more of the Company Common Stock or (v) any combination of the foregoing (in each case, other than the Merger).

 

            “Superior Company Proposal” means any binding bona fide written offer made by a third party or group pursuant to which such third party (or the stockholders of such third party) or group would acquire, directly or indirectly, more than 50% of the Company Common Stock or substantially all of the assets of the Company and the Company Subsidiaries, taken as a whole, (i) which the Board of Directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) is more favorable, from a financial point of view, to the holders of Company Common Stock than the Merg er, taking into account all the terms and conditions of such proposal and this Agreement (including any changes proposed by Parent to the terms of this Agreement) and the failure of the Board of Directors of the Company to approve or recommend such Company Competing Proposal would be inconsistent with its fiduciary duties under applicable Law, (ii) the financing of which is fully committed and (iii) that is reasonably likely to be completed on the terms set forth in such offer, taking into account all financial, regulatory, legal and other aspects of such proposal.

 

 

 

 

                      SECTION 4.03.  No Solicitation by Parent; Board of Directors of Parent Recommendation.

 

  (a)  Parent shall not, nor shall it authorize or permit any of its Affiliates or any of its or their respective representatives to, (i) directly or indirectly solicit, initiate, induce, knowingly facilitate or knowingly encourage (including by way of providing non-public information) any Parent Takeover Proposal or any inquiry, proposal or request for discussion that may reasonably be expected to lead to a Parent Takeover Proposal or (ii) directly or indirectly participate in any discussions or negotiations with any person regarding or cooperate in any way with any person (whether or not a person making a Parent Takeover Proposal) with respect to any Parent Takeover Proposal or any inquiry, proposal or request for discussion that may reasonably be expected to lead to a Parent Takeover Proposal.  Parent shall, and shall cause its Affiliates and its and their respective representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any person conducted heretofore with respect to any Parent Takeover Proposal, or any inquiry or proposal that may reasonably be expected to lead to a Parent Takeover Proposal, request the prompt return or destruction of all confidential information previously furnished and immediately terminate all physical and electronic dataroom access previously granted to any such person or its representatives.  Parent shall take all actions necessary to enforce its rights under the provisions of any “standstill” agreement between Parent and any person (other than the Company), and shall not grant any waiver of, or agree to any amendment or modification to, any such agreement, to permit such person to submit a Parent Takeover Proposal.< /font>

 

  (b)  Notwithstanding the foregoing, at any time prior to obtaining the Parent Stockholder Approval, in response to a bona fide unsolicited written Parent Takeover Proposal that the Board of Directors of Parent determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) (i) constitutes or is reasonably likely to lead to a Superior Parent Proposal and (ii) that the failure to take the actions described in clauses (x) and (y) below would be inconsistent with the Board of Directors’ fiduciary duties under applicable Law, and which Parent Takeover Proposal was made after the date of this Agreement and did not otherwise result from a knowing or intentional breach of this Section 4.03, Parent may, subject to compliance with this Section 4.03(b), (x) furnish information with respect to Parent and its Subsidiaries to the person making such Parent Takeover Proposal (and its representatives) (provided that all such information has previously been provided to the Company or is provided to the Company prior to or substantially concurrently with the time it is provided to such person) pursuant to a customary confidentiality agreement not less restrictive of such person than the Confidentiality Agreement (including with respect to standstill provisions, provided that under no circumstances shall such standstill provisions expire earlier than the Outside Date) provided, further, that Parent may grant a limited waiver of such standstill provision s to the extent, and only to the extent reasonably necessary to permit the Board of Directors of Parent to engage in the activities expressly permitted by and in accordance with this Section 4.03(b) and Section 4.03(d) under the terms and conditions set forth in this Section 4.03(b) and Section 4.03(d) and (y) participate in discussions regarding the terms of such Parent Takeover Proposal and the negotiation of such terms with, and only with, the person making such Parent Takeover Proposal (and such person’s representatives); provided, that Parent shall give written notice to the Company after any such determination by the Board of Directors of Parent and prior to taking any of the actions described in the foregoing clauses (x) and (y).  Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 4.03 by any representative of Parent or any of its Affiliates shall consti tute a breach of this Section 4.03 by Parent.

 

 

 

 

  (c)  Except as set forth below, neither the Board of Directors of Parent nor any committee thereof shall (i) (A) withdraw (or qualify or modify in any manner adverse to the Company), or propose publicly to withdraw (or qualify or modify in any manner adverse to the Company), the Parent Board Recommendation, (B) take any action to exempt any person (other than the Buyer Entities and their Affiliates) from the provisions of Section 203 of the DGCL or any other state takeover statute), or (C) approve, recommend or declare advisable, or propose publicly to approve, recommend or declare advisable, any Parent Takeover Proposal (any action in this clause (i) being referred to as a “Parent Adverse Recom mendation Change”) or (ii) approve, recommend or declare advisable, or propose publicly to approve, recommend or declare advisable, or cause or allow Parent or any of its Affiliates to execute or enter into, any Acquisition Agreement constituting or related to, or that is intended to or would reasonably be expected to lead to, any Parent Takeover Proposal, or requiring, or reasonably expected to cause, Parent to abandon, terminate, delay or fail to consummate, or that would otherwise impede, interfere with or be inconsistent with, the Merger or any of the other transactions contemplated by this Agreement, or requiring, or reasonably expected to cause, Parent to fail to comply with this Agreement (other than a confidentiality agreement referred to in Section 4.03(b)).  Notwithstanding the foregoing, at any time prior to obtaining the Parent Stockholder Approval and other than in connection with a Parent Takeover Proposal, if the Board of Directors of Parent determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, the Board of Directors of Parent may make a Parent Adverse Recommendation Change; provided, that Parent has provided the Company five business days’ prior written notice advising the Company that it intends to take such action and specifying, in reasonable detail, the reasons for such action.

 

 

 

 

  (d)  Notwithstanding the foregoing, at any time prior to obtaining the Parent Stockholder Approval, if the Board of Directors of Parent determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) that (i) an unsolicited bona fide written Parent Takeover Proposal made after the date of this Agreement and not the result of a breach of this Section 4.03 constitutes a Superior Parent Proposal and (ii) the failure to approve or recommend such Superior Parent Proposal would be inconsistent with its fiduciary duties under applicable Law, the Board of Directors of Parent may, subject to compliance with this Section 4.03(d), cause Parent to terminate this Agreement in order to enter into a definitive agreement relat ing to such Parent Takeover Proposal that constitutes a Superior Parent Proposal after paying the Parent Termination Fee in accordance with Section 5.06(c).  Parent shall provide the Company with five business days’ prior written notice in the form of a Notice of Superior Proposal.  A Notice of Superior Proposal shall advise the Company that the Board of Directors of Parent has received a Superior Parent Proposal and shall include any information and materials required to be delivered under Section 4.03(e) that have not yet been provided to the Company (including the most recent version of any written agreement relating to the transaction that constitutes a Superior Parent Proposal or, if no such written agreement exists, a written summary of the material terms and conditions of such Superior Parent Proposal).  If the Company, within the Notice Period, makes an offer that, as determined in good faith by the Board of Directors of Parent (after consultation with outside counsel and a financial advisor of nationally recognized reputation) results in the applicable Parent Takeover Proposal no longer being a Superior Parent Proposal, then Parent shall have no right to terminate this Agreement pursuant to Section 7.01(h) as a result of such Parent Takeover Proposal.  If the Company shall not have made such an offer within the Notice Period, then, within five business days following the expiration of such Notice Period, the Board of Directors of Parent may cause Parent to terminate this Agreement pursuant to Section 7.01(h) in order to enter into a definitive agreement relating to such Parent Takeover Proposal that constitutes a Superior Parent Proposal after paying the Parent Termination Fee in accordance with Section 5.06(c).  During the Notice Period, Parent shall and shall cause its representatives, including its financial advisors and outside counsel, to negotiate in good fai th with the Company and its representatives (to the extent the Company desires to negotiate) with respect to any offer from the Company.  Any (A) material revisions to the terms of a Superior Parent Proposal or (B) material revisions to a Parent Competing Proposal that the Board of Directors of Parent had determined no longer constitutes a Superior Parent Proposal, shall constitute a new Parent Competing Proposal and shall require Parent to deliver to the Company a new Notice of Superior Proposal and a new Notice Period shall commence thereafter.  Except after compliance with the procedures set forth in this Section 4.03(d), Parent shall have no right to terminate this Agreement pursuant to Section 7.01(h).

 

 

 

 

  (e)  In addition to the obligations of Parent set forth in paragraphs (a), (b), (c) and (d) of this Section 4.03, Parent shall promptly (and in any event within 48 hours) advise the Company orally and in writing of any Parent Takeover Proposal or any inquiry, proposal or request for discussions that may reasonably be expected to lead to a Company Takeover Proposal, the material terms and conditions thereof (including any changes thereto) and the identity of the person making any such inquiry, proposal, request for discussions or Parent Takeover Proposal.  Parent shall (i) keep the Company promptly informed in all material respects of the status and details (including any change to the terms thereof) of any inquiry, proposal, request for discussions or P arent Takeover Proposal and (ii) provide to the Company as soon as practicable (and in any event within 48 hours) after receipt or delivery thereof copies of all correspondence and other written material exchanged between Parent or any of its Subsidiaries and any person that describes any of the terms or conditions of any inquiry, proposal, request for discussions or Parent Takeover Proposal.

 

              (f)  Nothing contained in this Section 4.03 shall prohibit Parent from (i) taking and disclosing to its stockholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or (ii) making any disclosure to the stockholders of Parent if, in the good faith judgment of the Board of Directors of Parent (after consultation with outside counsel), failure to do so would be inconsistent with its obligations under applicable Law; provided, however, that in no event shall Parent or the Board of Directors of Parent or any committee thereof take, or agree or resolve to take, any action prohibited by Section 4.03(c).

 

          (g)  For the avoidance of doubt, the parties agree that none of the actions contemplated or permitted by this Agreement (including this Section 4.03) shall constitute a breach or violation of the Confidentiality Agreement by the Company, its Affiliates or representatives.

 

          (h)  For purposes of this Agreement:

 

 “Parent Takeover Proposal” means any proposal or offer (whether or not in writing) from any person other than the Buyer Entities and their Affiliates, with respect to any (i) merger, consolidation, share exchange, other business combination or similar transaction involving Parent, (ii) sale, lease, contribution or other disposition, directly or indirectly (including by way of merger, consolidation, share exchange, other business combination, partnership, joint venture, sale of capital stock of or other equity interests in a Parent Subsidiary or otherwise) of any business or assets of Parent or Parent Subsidiaries representing 20% or more of the consolidated revenues, net income or assets of Parent and Parent Subsidiaries, taken as a whole, (iii) issuance, sale or other disposition, directly or indirectly, to any person (or the stockholders of any person) or group of securities (or options, warrants or other rights to acquire, or securities convertible into or exchangeable for, such securities) representing 20% or more of the voting power of Parent, (iv) transaction in which any person (or the stockholders of any person) shall acquire, directly or indirectly, beneficial ownership, or the right to acquire beneficial ownership, or formation of any group which beneficially owns or has the right to acquire beneficial ownership of, 20% or more of Parent Common Stock or (v) any combination of the foregoing (in each case, other than the Merger).

 

 

 

 

 “Superior Parent Proposal” means any binding bona fide written offer made by a third party or group pursuant to which such third party (or the stockholders of such third party) or group would acquire, directly or indirectly, more than 50% of Parent Common Stock or substantially all of the assets of Parent and Parent Subsidiaries, taken as a whole, (i) which the Board of Directors of Parent determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) is more favorable, from a financial point of view, to the holders of Parent Common Stock than the Merger, taking into account all the terms and conditions of such proposal and this Agreement (incl uding any changes proposed by the Company to the terms of this Agreement) and the failure of the Board of Directors of Parent to approve or recommend such Parent Competing Proposal would be inconsistent with its fiduciary duties under applicable Law, (ii) the financing of which is fully committed and (iii) that is reasonably likely to be completed on the terms set forth in such offer, taking into account all financial, regulatory, legal and other aspects of such proposal.

 

 

ARTICLE V

 

 

                      SECTION 5.01.  Preparation of the Proxy Statement; Stockholders Meetings.  (a)  As promptly as practicable following the date of this Agreement, Parent and the Company shall jointly prepare and cause to be filed with the SEC a joint proxy statement to be sent to the stockholders of each of Parent and the Company relating to the Parent Stockholders Meeting and the Company Stockholders Meeting (together with any amendments or supplements thereto, the “Joint Proxy Statement”) and Parent s hall prepare and cause to be filed with the SEC the Form S-4, in which the Joint Proxy Statement will be included as a prospectus, and Parent and the Company shall use their respective reasonable best efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing.  Each of Parent and the Company shall furnish all information concerning such person and its Affiliates required to be included in the Joint Proxy Statement and Form S-4 and provide such other assistance, as may be reasonably requested in connection with the preparation, filing and distribution of the Form S-4 and Joint Proxy Statement.  Each of Parent and the Company shall promptly notify the other upon the receipt of any comments from the SEC or any request from the SEC for amendments or supplements to the Form S-4 or Joint Proxy Statement and shall provide the other with copies of all correspondence between it and its representatives, on the one hand, and t he SEC, on the other hand.  Each of Parent and the Company shall use its reasonable best efforts to respond as promptly as practicable to any comments from the SEC with respect to the Form S-4 or Joint Proxy Statement.  Notwithstanding the foregoing, prior to filing the Form S-4 (or any amendment or supplement thereto) or mailing the Joint Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, each of Parent and the Company (i) shall provide the other a reasonable opportunity to review and comment on such document or response (including the proposed final version of such document or response), (ii) shall include in such document or response all comments reasonably proposed by the other and (iii) shall not file or mail such document or respond to the SEC prior to receiving the approval of the other (such  approval not to be unreasonably withheld, conditioned or delayed).  Each of Parent and the Company sha ll advise the other, promptly after receipt of notice thereof, of the time of effectiveness of the Form S-4, the issuance of any stop order relating thereto or the suspension of the qualification of the Stock Merger Consideration for offering or sale in any jurisdiction, and each of Parent and the Company shall use its reasonable best efforts to have any such stop order or suspension lifted, reversed or otherwise terminated.  Each of Parent and the Company shall also take any other action (other than qualifying to do business in any jurisdiction in which it is not now so qualified) required to be taken under the Securities Act, the Exchange Act, any applicable foreign or state securities or “blue sky” laws and the rules and regulations thereunder in connection with the Merger and the Stock Issuance.

 

 

 

 

                  (b)  If, prior to the Effective Time, any event occurs with respect to Parent or any of its Subsidiaries, on the one hand, or the Company or any of its Subsidiaries, on the other hand, or any change occurs with respect to other information supplied by Parent or the Company for inclusion in the Joint Proxy Statement or the Form S-4, which is required to be described in an amendment of, or a supplement to, the Joint Proxy Statement or the Form S-4, Parent or the Company, as the case may be, shall promptly notify the other of such event, and Parent and the Company shall cooperate in the prompt filing with the SEC of any necessary amendment or supplement to the Joint Proxy Statement or the Form S-4 and, as requ ired by Law, in disseminating the information contained in such amendment or supplement to Parent’s stockholders and the Company’s stockholders.  Nothing in this Section 5.01(b) shall limit the obligations of any party under Section 5.01(a).

 

 

 

 

 

 

 

  (e)  The Company and Parent shall use their reasonable best efforts to hold the Company Stockholders Meeting and the Parent Stockholders Meeting (i) on the same day at substantially the same time and (ii) unless otherwise mutually agreed by the Company and Parent, after entrance into a consent decree, or earlier expiration or termination of any waiting periods under the HSR Act.

 

                      SECTION 5.02.  Access to Information; Confidentiality.  Subject to applicable Law, each of Parent and the Company shall, and shall cause each of its respective Subsidiaries to, afford to the other party, and to the other party’s officers, employees, accountants, counsel, consultants, financial advisors and other representatives, reasonable access during normal business hours during the period prior to the Effective Time to all of its and its Subsidiaries’ properties, books and records, financial and operating data and other information, and to its and its Subsidiaries’ officers and employees, and use its rea sonable best efforts to cause its and its Subsidiaries’ accountants, counsel, consultants, financial advisors and other representatives to provide such access, in each case to whom such other party reasonably requests access, and, during such period, each of the Company and Parent shall, and shall cause its Subsidiaries to, furnish, as promptly as practicable, to the other party all information concerning its and its Subsidiaries’ business, properties and personnel as such other party may reasonably request and shall cause its and its Subsidiaries’ respective accountants, consultants and other representatives to provide access to its work papers (subject, in the case of work papers, to the execution of customary documentation reasonably requested by the auditors (it being agreed, however, that the foregoing shall not permit any party or any of its representatives to conduct any environmental testing or sampling).  Notwithstanding the foregoing, none of the Company, Parent or any o f their respective Subsidiaries shall be required to provide access to or disclose information where such party reasonably determines that such access or disclosure would jeopardize the attorney-client privilege of such party or any of its Subsidiaries or contravene any Law or any Contract to which such party or any of its Subsidiaries is a party; provided, that each party shall use its reasonable best efforts to obtain any required consents and take such other action (such as the entry into a joint defense agreement or other arrangement to avoid loss of attorney client privilege) to permit such access or disclosure.  Except for disclosures expressly permitted by the terms of the confidentiality letter agreement dated as of January 3, 2011, between Parent and the Company (as such agreement may be amended from time to time, the “Confidentiality Agreement”) and except for disclosure by the Buyer Entities reasonably necessary to comply with customary practice in connection with obtaining the Financing, each of Parent and the Company shall hold, and shall cause its respective officers, employees, accountants, counsel, financial advisors and other representatives to hold, all information received, directly or indirectly, from the other party or its representatives in confidence in accordance with the Confidentiality Agreement.

 

 

 

 

                      SECTION 5.03.  Reasonable Best Efforts.  (a)  Upon the terms and subject to the conditions set forth in this Agreement, each of the parties hereto agrees to use its reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to, consummate and make effective, as promptly as is reasonably practical under the circumstances, the Merger and the other transactions contemplated by this Agreement, in cluding using reasonable best efforts to accomplish the following:  (i) the taking of all acts necessary to cause the conditions to Closing to be satisfied as promptly as is reasonably practical under the circumstances provided, however, nothing herein shall limit the right of Parent to enter into Timing Agreements pursuant to Section 5.03(c), (ii) the obtaining of all necessary, proper or advisable actions or nonactions, waivers, consents and approvals from Governmental Entities and the making of all necessary, proper or advisable registrations and filings (including filings with Governmental Entities) and the taking of all steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (iii) the obtaining of consents, approvals and waivers from third parties reasonably requested by Parent to be obtained in connection with the Merger under the Company Material Contracts and Company Real Property Leases, provided, however, that in no event shall the Company or any of its Subsidiaries be required to pay, prior to the Effective Time, any fee, penalty or other consideration to any landlord or other person to obtain any such consent, approval or waiver, and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement.

 

(b)  In connection with and without limiting Section 5.03(a), each of Parent and the Company and their respective Boards of Directors shall (i) take all action reasonably appropriate to ensure that no state takeover statute or similar statute or regulation is or becomes applicable to this Agreement or any transaction contemplated by this Agreement and (ii) if any state takeover statute or similar statute or regulation becomes applicable to this Agreement or any transaction contemplated by this Agreement, take all action reasonably appropriate to ensure that the Merger and the other transactions contemplated by this Agreement may be consummated, as promptly as is reasonably practical under the circumstances.

 

 

 

 

                  (c)  In connection with and without limiting Section 5.03(a), promptly following the execution and delivery by the parties to this Agreement, Parent and the Company shall enter into discussions with the Governmental Entities from whom Consents or nonactions are required to be obtained in connection with the consummation of the Merger and the other transactions contemplated by this Agreement in order to obtain all such required Consents or nonactions from such Governmental Entities and eliminate each and every other impediment that may be asserted by such Governmental Entities, in each case with respect to the Merger and the other transactions contemplated by this Agreement, so as to enable the Closing to occur as promptly as is reasonably practical under the circumstances, provided, however, nothing herein shall limit the right of Parent to enter into Timing Agreements pursuant to this Section 5.03(c).  To the extent necessary in order to accomplish the foregoing, Parent shall propose, negotiate, commit to and effect, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of, or prohibition or limitation on the ownership or operation by Parent, the Company or any of their respective Subsidiaries of any portion of their respective business, properties or assets; (a “Divestiture Action”); provided, however, notwithstanding the forego ing or anything herein to the contrary, the parties shall not have any obligation to propose, negotiate, commit to or effect any Divestiture Action that would have a material adverse effect on the assets and liabilities (taken as a whole), business, financial condition or results of operations of the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole (a “MAE Burdensome Condition”); provided further, however, that no party shall be required pursuant to this Section 5.03(c) to propose, commit to or effect any action that is not conditioned upon the consummation of the Merger.  If the actions taken pursuant to the immediately preceding sentence do not result in the conditions set forth in Section 6.01(b), 6.02(e) or 6.03(e) being satisfied, then each of Parent and the Company shall jointly (to the extent practicable) initiate and/or participate in any proceedings, whether judicial or administrative, in order to (i) oppose or defend against any action by any Governmental Entity or private party to prevent or enjoin the consummation of the Merger or any of the other transactions contemplated by this Agreement, and/or (ii) take such action as necessary to overturn any regulatory action by any Governmental Entity or action by any private party to block consummation of the Merger or any of the other transactions contemplated by this Agreement, including by defending any suit, action or other legal proceeding brought by any Governmental Entity or private party in order to avoid the entry of, or to have vacated, overturned or terminated, including by appeal if necessary, any Restraint resulting from any suit, action or other legal proceeding that would cause any condition set forth in Section 6.01(b ), 6.02(e) or 6.03(e) not to be satisfied.  Notwithstanding anything in this Agreement to the contrary, Parent shall have the right to determine and direct the strategy and process (including all timing, substantive matters and decisions to propose, negotiate, commit to or effect any Divestiture Action) by which the parties will seek required consents, approvals, clearances, waivers, waiting period expirations and terminations and removal of all impediments (including all elements of any suit, action or other legal proceeding and communications with Governmental Entities), in each case under the HSR Act or any other Antitrust Law, including the right to enter into reasonable timing agreements with Governmental Entities as customary in reviews under the HSR Act and other Antitrust Laws (“Timing Agreements”); provided, however that Parent shall use its reasonable best efforts to regularly consult with the Company and keep th e Company reasonably informed of such strategy and process and the results thereof.

 

 

 

 

  (d)  In connection with and without limiting the generality of the foregoing, each of Parent and the Company shall:

 

(i)  make or cause to be made, in consultation and cooperation with the other and as promptly as reasonably practicable after the date of this Agreement, (A) an appropriate filing of a Notification and Report Form pursuant to the HSR Act relating to the Merger and (B) all other necessary, proper or advisable registrations, declarations, notices and filings relating to the Merger with other Governmental Entities under any other Antitrust Law;

 

(ii)  use its reasonable best efforts to furnish to the other all assistance, cooperation and information required for any such registration, declaration, notice or filing;

 

(iii)  give the other reasonable prior notice of any such registration, declaration, notice or filing and, to the extent reasonably practicable, of any communication with any Governmental Entity regarding the Merger (including with respect to any of the actions referred to in Section 5.03(c)), and permit the other to review and discuss in advance, and consider in good faith the views of, and use its reasonable best efforts to secure the participation of, the other in connection with any such registration, declaration, notice, filing or communication;

 

(iv)  respond as promptly as practicable under the circumstances to any inquiries received from any Governmental Entity or any other authority enforcing applicable antitrust, competition, trade regulation or similar Laws for additional information or documentation in connection with antitrust, competition, trade regulation or similar matters (including a “second request” under the HSR Act) and not enter into any agreement with such Governmental Entities or other authorities not to consummate the Merger or any of the other transactions contemplated by this Agreement, except with the prior written consent of the other parties hereto (such consent not to be unreasonably withheld, conditioned or delayed and which reasonableness shall be determined in light of each party̵ 7;s obligation to do all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Merger and the other transactions contemplated by this Agreement), provided, however, nothing herein shall limit the right of Parent to enter into Timing Agreements pursuant to Section 5.03(c); and

 

 

 

 

    (v)  unless prohibited by applicable Law or by the applicable Governmental Entity, (A) to the extent reasonably practicable, not participate in or attend any meeting, or engage in any substantive conversation with any Governmental Entity in respect of the Merger (including with respect to any of the actions referred to in Section 5.03(c)) without the other, (B) to the extent reasonably practicable, give the other reasonable prior notice of any such meeting or conversation, (C) in the event one party is prohibited by applicable Law or by the applicable Governmental Entity from participating in or attending any such meeting or engaging in any such conversation, keep such party reasonably apprised with respect thereto, (D) cooperate in the filing of any substant ive memoranda, white papers, filings, correspondence or other written communications explaining or defending this Agreement and the Merger, articulating any regulatory or competitive argument, and/or responding to requests or objections made by any Governmental Entity and (E) furnish the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and its Affiliates and their respective representatives on the one hand, and any Governmental Entity or members of any Governmental Entity’s staff, on the other hand, with respect to this Agreement and the Merger, provided that such material may be redacted as necessary (1) to comply with contractual arrangements, (2) to address good faith legal privilege or confidentiality concerns and (3) to comply with applicable Law.

 

 (e)  Immediately following the execution and delivery of their Agreement by each of the parties hereto, Parent, as sole stockholder of MergerCo, will adopt this Agreement.

 

                      SECTION 5.04.  Benefit Plans.  (a)  For a period commencing at the Effective Time and ending on December 31, 2012, Parent shall, and shall cause the Surviving Corporation to, provide employees of the Company and its Subsidiaries (other than employees whose terms and conditions of employment are governed by a collective bargaining agreement, the terms and conditions of which shall be respected by Parent and the Surviving Corporation who remain in the active employment of the Surviving Corporation and its Subsidiaries (the “Company Employees” ) with compensation and employee benefits that are no less favorable in the aggregate than the compensation and employment benefits provided to such Company Employees immediately prior to the Effective Time.

 

                  (b)  Parent shall, and shall cause the Surviving Corporation to, honor, in accordance with its terms, each Company Benefit Plan and Company Benefit Agreement and all obligations thereunder including any rights or benefits arising as a result of the transactions contemplated under this Agreement (either alone or in combination with any other event, including termination of employment), and Parent hereby agrees and acknowledges that the consummation of the Merger constitutes a “change of control” or a “change in control”, as the case may be, for all purposes under the Company Benefit Plans and Company Benefit Agreements.

 

 

 

 

 

 

 

                      SECTION 5.05.  Indemnification, Exculpation and Insurance.  (a)  All rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any person who is, or prior to the Effective Time becomes, or has been at any time prior to the date of this Agreement, a director, officer, employee or agent (including as a fiduciary with respect to an employee benefit plan) of the Company, any of its Subsidiaries or any of their respective predecessors (each, an “Indemnified Party”) as provided in the Company Certificate of Incorporation, the Company Bylaws, the organizational documents of any Subsidiary of the Company or any indemnification agreement between such Indemnified Party and the Company or any of its Subsidiaries (in each case, as in effect on the date hereof or entered into after the date hereof (i) with a newly hired officer, director, employee or agent in the ordinary course of business consistent with past practice or (ii) with Parent’s prior written consent, not to be unreasonably withheld, conditioned or delayed, to the extent the terms thereof are no more favorable in any material respect to the Indemnified Party that is the beneficiary thereof than the terms of any indemnification agreement or indemnification provisions in any Benefit Agreements included as an exh ibit in the Company Filed SEC Documents) shall survive the Merger and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Party without the consent of such Indemnified Party.

 

                  (b)  Without limiting Section 5.05(a) or any rights of any Indemnified Party pursuant to any indemnification agreement, from and after the Effective Time, in the event of any threatened or actual claim, action, suit, proceeding or investigation (a “Claim”), whether civil, criminal or administrative in which any person who is now, or has been at any time prior to the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company is or is threatened to be, made a party in his or her capacity as a director or officer of the Company, each of Parent and the Survivin g Corporation shall indemnify and hold harmless, to the fullest extent the Company would have been permitted to do so under applicable Law (for the avoidance of doubt, subject to the limitations on the Company’s ability to indemnify its directors and officers under Section 145 of the DGCL), each such Indemnified Party in his or her capacity as a director or officer of the Company or any of its Subsidiaries, or any of their respective predecessors, against any losses, claims, damages, liabilities, costs, expenses (including reasonable attorney’s fees and expenses in advance of the final disposition of any Claim to each Indemnified Party to the fullest extent permitted by Law upon receipt of any undertaking in favor of Parent and the Surviving Corporation of a type contemplated by the Company Certificate of Incorporation), judgments, fines and amounts paid in settlement of or in connection with any such threatened or actual Claim, arising out of, or pertaining to (i) the fact that such an Inde mnified Party was a director (including in a capacity as a member of any committee of the Board of Directors of the Company) or officer of the Company, any of its Subsidiaries or any of their respective predecessors, or a fiduciary with respect to any employee benefit plan maintained by any of the foregoing, prior to the Effective Time or (ii) this Agreement or any of the transactions contemplated hereby, whether in any case asserted or arising before or after the Effective Time.  Neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any threatened or actual Claim for which indemnification could be sought by an Indemnified Party hereunder, unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Claim or such Indemnified Party otherwise consents in writing to such settlement, compromise or consent.  Parent and the Surviving Corporation sha ll cooperate with an Indemnified Party in the defense of any matter for which such Indemnified Party could seek indemnification hereunder.  Parent’s and the Surviving Corporation’s obligations under this Section 5.05(b) shall continue in full force and effect for a period of six years from the Effective Time; provided, however, that all rights to indemnification in respect of any Claim asserted or made within such period shall continue until the final disposition of such Claim.

 

 

 

 

 

  (d)  In the event that Parent or any of its successors or assigns (i) consolidates with or merges into any other person and is not the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a substantial portion of its properties and other assets to any person, or is dissolved, then, and in each such case, Parent shall cause proper provision to be made so that the applicable successors and assigns or transferees expressly assume the obligations set forth in this Section 5.05.

 

 

                      SECTION 5.06.  Fees and Expenses.  (a)  Except as provided in Sections 5.06(b) through (e), all fees and expenses incurred in connection with this Agreement, the Merger and the other transactions contemplated by this Agreement, shall be paid by the party incurring such fees or expenses, whether or not the Merger is consummated.

 

                  (b)  In the event that (i) this Agreement is terminated by the Company pursuant to Section 7.01(g), (ii) this Agreement is terminated by Parent pursuant to Section 7.01(i) or 7.01(k), or (iii) (A) after the date of this Agreement, and prior to the Company Stockholders Meeting, a Company Takeover Proposal shall have been made to the Company or shall have been made directly to the stockholders of the Company or shall have otherwise become publicly known, (B) thereafter, this Agreement is terminated by either Parent or the Company pursuant to Section 7.01(b)(i) (but only if the Company Stockholder Approval has not been obtained) or by Parent pursuant to Section 7.01(c) or 7.01(e) (to the extent such breach does not relate solely to a breach of any representation or warranty in this Agreement) and (C) within 12 months after such termination, the Company or any of its Subsidiaries enters into a definitive agreement to consummate a Company Takeover Proposal, a Company Takeover Proposal is consummated or the Company’s Board of Directors recommends a Company Takeover Proposal, then the Company shall pay to the Buyer Entities an aggregate amount equal to $251 million (the “Company Termination Fee”) by wire transfer of same-day funds in the case of a payment required by (1) clause (i) above, concurrently with the termination of this Agreement, (2) clause (ii) above, on the business day following the date of termination of this Agreement and (3) clause (iii) above, on the date of the first to occur of the events referred to in clause (iii)(C).  For purposes of this Section 5.06(b), the term “Company Takeover Proposal” shall have the meaning assigned to such term in Section 4.02(h), except that all references to 20% therein shall be deemed to be references to 50%.  The parties understand and agree that in no event shall the Company be required to pay the Company Termination Fee on more than one occasion.

 

                  (c)  In the event that (i) this Agreement is terminated by Parent pursuant to Section 7.01(h), (ii) this Agreement is terminated by the Company pursuant to Section 7.01(j) or Section 7.01(l) or (iii) (A) after the date of this Agreement and prior to the Parent Stockholders Meeting, a Parent Takeover Proposal shall have been made to Parent or shall have been made directly to the stockholders of Parent or shall have otherwise become publicly known, (B) thereafter, this Agreement is terminated by either Parent or by the Company pursuant to Section 7.01(b)(i) (but only if the Parent Stockholder Approval has not been obtained) or by the Company pursuant to Section 7.01(d) or 7.01(f) (to the extent such breach does not relate solely to a breach of any representation or warranty in this Agreement) and (C) within 12 months after such termination, the Buyer Entities or any of their respective Subsidiaries enter into a definitive agreement to consummate a Parent Takeover Proposal, Parent Takeover Proposal is consummated or Parent’s Board of Directors recommends a Parent Takeover Proposal, then the Buyer Entities shall jointly and severally pay to the Company an aggregate amount equal to $252 million (the “Parent Termination Fee”) by wire transfer of same-day funds in the case of a payment required by (1) clause (i) above, concurrently with the termination of this Agreement, (2) clause (ii) above, on the business day following the date of termination of this Agreement and (3) clause (iii) above, on the date of the first to occur of the events referred to in c lause (iii)(C).  For purposes of this Section 5.06(c), the term “Parent Takeover Proposal” shall have the meaning assigned to such term in Section 4.03(h), except that all references to 20% therein shall be deemed to be references to 50%.  The parties understand and agree that (x) in no event shall the Buyer Entities be required to pay the Parent Termination Fee on more than one occasion, (y) in the event the Parent Vote Down Termination Fee has already been paid under Section 5.06(e), the Buyer Entities shall be entitled to credit the amount of the Parent Vote Down Termination Fee paid against the amount of the Parent Termination Fee it is required to pay under this Section 5.06(c), and (z) in no event shall the Buyer Entities be required to pay the Parent Termination Fee if the Funding Failure Termination Fee has already been paid.

 

 

 

 

                  (d)  In the event that this Agreement has been terminated by the Company pursuant to Section 7.01(m), on the business day following such termination the Buyer Entities shall jointly and severally pay to the Company an aggregate amount equal to $360 million (the “Funding Failure Termination Fee”) by wire transfer of same-day funds.  The parties understand and agree that (x) in no event shall the Buyer Entities be required to pay the Funding Failure Termination Fee on more than one occasion, and (y) in no event shall the Buyer Entities be required to pay t he Funding Failure Termination Fee if the Parent Termination Fee or the Parent Vote Down Termination Fee has already been paid.

 

                  (e)  In the event that this Agreement is terminated by Parent or the Company pursuant to Section 7.01(d), then the Buyer Entities shall jointly and severally pay to the Company an aggregate amount equal to $72 million (the “Parent Vote Down Termination Fee”) by wire transfer of same-day funds on the business day following the date of termination of this Agreement.  The parties understand and agree that (x) in no event shall the Buyer Entities be required to pay the Parent Vote Down Termination Fee on more than one occasion and (y) in no event shall the Buyer Entities be required to pay the Parent Vote Down Termination Fee if the Parent Termination Fee or the Funding Failure Termination Fee has already been paid.

 

                  (f)  The parties hereto acknowledge and agree that the agreements contained in this Section 5.06 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, the other parties hereto would not have entered into this Agreement.  If the Company fails to pay the Company Termination Fee pursuant to Section 5.06(b), or if Parent fails to pay the Parent Termination Fee pursuant to Section 5.06(c), the Funding Failure Termination Fee pursuant to Section 5.06(d) or the Parent Vote Down Termination Fee pursuant to Section 5.06(e), in each case pursuant to this Section 5.06 when due, and, in order to obtain such payment, any other party hereto commen ces a suit that results in a judgment against such party for the Company Termination Fee, the Parent Termination Fee, the Funding Failure Termination Fee or the Parent Vote Down Termination Fee, as the case may be, such party shall pay to such other party its costs and expenses (including attorneys’ fees and expenses) in connection with such suit, together with interest on the amount of the Company Termination Fee, the Parent Termination Fee, the Funding Failure Termination Fee or the Parent Vote Down Termination Fee, as the case may be, from the date such payment was required to be made until the date of payment at the prime rate of JPMorgan Chase Bank, N.A. in effect on the date such payment was required to be made.

 

 

 

 

 

                      SECTION 5.07.  Public Announcements.  The Buyer Entities and the Company shall consult with each other before issuing, and give each other the opportunity to review and comment upon, any press release or other public statements with respect to the transactions contemplated by this Agreement, including the Merger and the Financing, and shall not issue any such press release or make any such public statement prior to such consultation, except as may be required by applicable Law, court process or the rules and regulations of any national securities exchange or national securities quotation system.  The parties agree t hat the initial press release to be issued with respect to the transactions contemplated by this Agreement shall be in the form heretofore agreed to by the parties.

 

                      SECTION 5.08.  Stockholder Litigation.  The Company shall give the Buyer Entities the opportunity to participate in the defense or settlement of any stockholder litigation against the Company and/or its directors relating to the transactions contemplated by this Agreement, and no such settlement shall be agreed to without the prior written consent of the Buyer Entities (such consent not to be unreasonably withheld, conditioned or delayed).  The Buyer Entities shall give the Company the opportunity to participate in the defense or settlement of any stockholder litigation against Parent and/or its directors relating t o the transactions contemplated by this Agreement, and no such settlement shall be agreed to without the prior written consent of the Company (such consent not to be unreasonably withheld, conditioned or delayed).

 

 

 

 

                      SECTION 5.09.  Financing.  (a)  Each of the Buyer Entities shall use, and shall cause its Affiliates to use, reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange the Financing on the terms and conditions described in the Financing Commitment, including using reasonable best efforts (i) to negotiate and enter into the definitive agreements with respect thereto on the terms and conditions contained in the Financing Commitment (or on other terms acceptable to Parent, provided such terms do not contain any conditions to funding on the Closing Date that are not set forth in the Financing Commitment and would not otherwise reasonably be expected to impair or delay the consummation of the Financing), (ii) to satisfy (or cause its Affiliates to satisfy) on a timely basis all conditions to obtaining the Financing set forth in the Financing Commitment and (iii) to consummate the Financing contemplated by the Financing Commitment at or prior to the Closing, including using its reasonable best efforts to cause the Lenders and the other persons providing such Financing to fund the Financing required to consummate the Merger at the Closing (including by taking enforcement action to cause such Lenders and other persons providing such Financing to fund such Financing).  In the event that any portion of the Financing becomes unavailable on the terms and conditions set fort h in the Financing Commitment, Parent shall promptly notify the Company, and Parent shall use its reasonable best efforts to obtain, as promptly as practicable following the occurrence of such event, any such portion from alternative sources (“Alternative Financing”) on terms that will still enable the Buyer Entities to consummate the transactions contemplated by this Agreement and that are approved by the Company (such approval not to be unreasonably withheld, conditioned or delayed).  Parent shall deliver to the Company true and complete copies of all agreements (other than any fee letters and engagement letters) pursuant to which any such alternative source shall have committed to provide Parent or the Surviving Corporation with any portion of the Financing.  Each of the Buyer Entities shall refrain (and shall cause its Affiliates to refrain) from taking, directly or indirectly, any action that would reasonably be expected to result in a failure of any of the conditions contained in the Financing Commitment or in any definitive agreement related to the Financing.  None of the Buyer Entities shall agree, without the Company’s prior written consent, to or permit any amendment, supplement or other modification of, or waive any of its rights under, the Financing Commitment if such amendment, supplement, modification or waiver (x) reduces the aggregate amount of the Financing or (y) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of the Financing in a manner that would reasonably be expected to (I) delay or prevent the Closing Date, (II) make the funding of the Financing (or satisfaction of the conditions to obtaining the Financing) less likely to occur or (III) adversely impact the ability of each of the Buyer Entities to enforce its rights against other parties to the Financing C ommitment or the definitive agreements relating to the Financing.  Parent shall keep the Company informed on a current basis of the status of its efforts to obtain the Financing, provide the Company copies of all documents related to the Financing and give the Company prompt notice of any material breach by any party to the Financing Commitment of which Parent becomes aware or any termination of the Financing Commitment.  The parties shall use their respective reasonable best efforts to market the Financing concurrently with the solicitation of proxies in connection with the Company Stockholders Meeting and the Parent Stockholders Meeting, subject to the concurrence of the underwriters and lead arrangers that doing so will not adversely affect the marketing of the Financing or any debt tenders or consent solicitations, with the objective of completing the Merger as promptly as practicable after the date of the Company Stockholders Meeting and the Parent Stockholders Meeting.

 

 

 

 

                  (b)  The Company shall provide, shall cause its Subsidiaries to provide and shall use its reasonable best efforts to cause its and their representatives to provide such reasonable cooperation in connection with the arrangement of the Financing as may be reasonably requested by Parent, including (i) participation in meetings, drafting sessions, presentations, road shows and due diligence and sessions with the financing sources, investors and rating agencies, (ii) furnishing Parent and the financing sources as promptly as practicable with financial and other pertinent information regarding the Company and its Subsidiaries as may be reasonably requested by Parent to consummate the Financing, including all financial statements and financial and other data of the type required by Regulation S-X and Regulation S-K under the Securities Act for registered offerings of debt securities, and of the type and form customarily included in offering documents used in private placements under Rule 144A of the Securities Act (including pro forma financial information) and other documents required to satisfy any customary negative assurance opinion, to consummate the Financing at the time or times the Financing is to be consummated, including all of the information and data related to the Company and its Subsidiaries necessary to satisfy the conditions set forth in paragraphs 2, 3, 5a and 5b of Exhibit D of the Financing Commitment and appropriate comparable information if a portion of the Financing is consummated prior to the Closing Date (information and data required to be delivered pursuant to this clause (ii) being referred to as the “Required Financial Information”), (iii) assisting Parent and its financing sources in the preparation of documents and materials (A) any offering documents, private placement memoranda, bank information memoranda, prospectuses and other informational and marketing materials and documents for any portion of the Financing, (B) documents relating to the redemption of or tender offer for the Company’s 6.875% Senior Notes due 2013 (the “6.875% Senior Notes”), (C) documents relating to the tender offer for the Company’s 3.25% Convertible Senior Notes due 2015 (the “3.25% Convertible Notes”), (D) documents relating to the redemption of or tender offer for the Company’s 2.25% Convertible Senior Notes due 2024 (the “2.25% Convertible Notes” and, together with the 3.25% Convertible Notes, the “Convertible Notes”), and (E) materials for rating agency presentations, (iv) reasonably cooperating with the marketing efforts of Parent and the financing sources for any portion of the Financing, (v) executing and delivering any necessary pledge and security documents and otherwise reasonably facilitating the granting of a security interest (and perfection thereof) in collateral, guarantees, mortgages, other definitive financing documents or other certificates or documents as may reasonably be requested by the Parent; provided that no such pledge or security document shall be effective prior to the Effective Time, (vi) obtaining customary authorization letters with respect to the bank informati on memoranda and consents of accountants for use of their reports in any materials relating to the Financing, (vii) using reasonable best efforts to obtain accountants’ comfort letters, legal opinions, surveys and title insurance as reasonably requested by Parent and (viii) taking all corporate actions, subject to the occurrence of the Closing, necessary to permit the consummation of the Financing; provided that (I) none of the Company or any of its Subsidiaries shall be required to pay any commitment or other fee, provide any security or incur any other liability in connection with the Financing or any Alternative Financing prior to the Effective Time, (II) such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries, (III) all non-public or otherwise confidential information regarding the Company obtained by the Buyer Entities or their representatives pursuant to th is Section 5.09(b) shall be kept confidential in accordance with the Confidentiality Agreement, except that such information may be disclosed to potential syndicate members during syndication, other potential Lenders or potential participants, subject to customary confidentiality undertakings by such potential syndicate members, other potential Lenders or potential participants, and except as may be permitted by applicable securities and other laws (to the extent such party is advised by counsel that such disclosure is so required), and (IV) the Company shall be permitted a reasonable period to comment on any documents or other information circulated to potential financing sources that contain or are based upon any such non-public or other confidential information.  Parent (x) shall, promptly upon request by the Company, reimburse the Company for all reasonable out-of-pocket costs (including reasonable attorney̵ 7;s fees) incurred by the Company or any of its Subsidiaries in connection with such cooperation, (y) acknowledges and agrees that the Company, its Subsidiaries and their respective representatives shall not have any responsibility for, or incur any liability to any person prior to the Effective Time under, the Financing or any Alternative Financing and (z) shall indemnify and hold harmless the Company, its Subsidiaries and their respective representatives from and against any and all losses, damages, claims, costs or expenses suffered or incurred by them in connection with the arrangement of the Financing and any information utilized in connection therewith.

 

 

 

 

 

                      SECTION 5.10.  Stock Exchange Listing.  Parent shall take all actions necessary to cause the shares of Parent Common Stock to be issued in the Merger to be approved for listing on the New York Stock Exchange, subject to official notice of issuance, prior to the Closing Date.

 

 

 

 

 

                      SECTION 5.11.  [Reserved].

 

                      SECTION 5.12.  Certain Tax Matters.  (a)  The Company and the Buyer Entities shall each use its reasonable best efforts to cause the Merger to qualify for the Intended Tax Treatment, including by (i) not taking any action that such party knows is reasonably likely to prevent such qualification and (ii) executing such amendments to this Agreement as may be reasonably required in order to obtain such qualification (it being understood that, except to the extent contemplated by Section 2.01(d), no party will be required to agree to any such amendment).  The Company and the Buyer Entities will each report the Merger and the other transactions contemplated by this Agreement in a manner consistent with such qualification.

 

                  (b)  The Company and the Buyer Entities shall each use its reasonable best efforts to obtain the tax opinions described in Sections 6.02(c) and 6.03(c), including by causing its officers to execute and deliver to the law firms delivering such tax opinion certificates substantially in the form attached hereto as Exhibit B at such time or times as may reasonably be requested by such law firms, including the date on which the Form S-4 is filed and the Closing Date.  The Company and the Buyer Entities shall each use its reasonable best efforts not to take or c ause to be taken any action that would cause to be untrue (or fail to take or cause not to be taken any action which inaction would cause to be untrue) any of the representations included in the certificates described in this Section 5.12(b).

 

                      SECTION 5.13.  Actions with Respect to Certain Indebtedness.  (a)  The Company and Parent shall enter into a supplemental indenture in respect of the 3.25% Convertible Notes issued pursuant to the Indenture dated as of August 12, 2008, between the Company, the guarantors party thereto and Wilmington Trust Company, as trustee, as amended or supplemented to the date of this Agreement (the “3.25% Convertible Notes Indenture”) containing the provisions required by the 3.25% Convertible Notes Indenture, including a provision that, at the Effecti ve Time, (i) each outstanding 3.25% Convertible Note shall no longer be convertible into shares of Company Common Stock and shall be convertible solely into the Merger Consideration and other payments under Article II that the holder of such 3.25% Convertible Note would have received pursuant to the Merger if such holder had converted such 3.25% Convertible Note immediately before the Effective Time into Company Common Stock, pursuant to a Collective Election (as defined in the 3.25% Convertible Notes Indenture in effect on the date hereof) and (ii) Parent assumes all the obligations of the Company under the 3.25% Convertible Notes, any coupons appertaining thereto and the 3.25% Convertible Notes Indenture.

 

                  (b)  The Company and Parent shall enter into a supplemental indenture in respect of the 2.25% Convertible Notes (together with the 3.25% Convertible Notes, the “Company Convertible Notes”) issued pursuant to the Indenture dated as of May 29, 2003, between the Company, A.T. Massey Coal Company, Inc. and Wilmington Trust Company, as trustee, as amended or supplemented to the date of this Agreement (the “2.25% Convertible Notes Indenture”  and, together with the 3.25% Convertible Notes Indenture, the “Company Convertible Notes Indentures”) containing the provisions required by the 2.25% Convertible Notes Indenture, including a provision that, at the Effective Time, (i) each outstanding 2.25% Convertible Note shall no longer be convertible into shares of Company Common Stock and shall be convertible solely into the Merger Consideration and other payments under Article II that the holder of such 2.25% Convertible Note would have received pursuant to the Merger if such holder had converted such 2.25% Convertible Note immediately before the Effective Time into Company Common Stock and (ii) Parent assumes all the obligations of the Company under the 2.25% Convertible Notes, any coupons appertaining thereto and the 2.25% Convertible Notes Indenture.

 

 

 

 

                      SECTION 5.14.  Section 16 Matters.  Prior to the Effective Time, each of Parent and the Company shall cause any dispositions of Company Common Stock (including derivative securities with respect to Company Common Stock) or acquisitions of Parent Common Stock (including derivative securities with respect to Parent Common Stock) resulting from the transactions contemplated by this Agreement by each individual who is subject to the reporting requirements of Section 16(a) of the Exchange Act with respect to the Company to be exempt under Rule 16b- 3 promulgated under the Exchange Act.

 

 

ARTICLE VI

 

 

                      SECTION 6.01.  Conditions to Each Party’s Obligation to Effect the Merger.  The respective obligation of each party to effect the Merger is subject to the satisfaction or (to the extent permitted by Law) waiver on or prior to the Closing Date of the following conditions:

 

 

                  (b)  No Injunctions or Restraints.  No temporary restraining order, preliminary or permanent injunction or other judgment, order or restraint issued by any Federal or state court of competent jurisdiction or Governmental Entity (collectively, “Restraints”) shall be in effect enjoining or otherwise prohibiting the consummation of the Merger.

 

  (c)  Listing.  The shares of Parent Common Stock issuable as Stock Merger Consideration pursuant to this Agreement shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.

 

  (d)  Form S-4.  The Form S-4 shall have become effective under the Securities Act and shall not be the subject of any stop order or proceedings seeking any stop order, and Parent shall have received all state securities or “blue sky” authorizations necessary for the Stock Issuance.

 

 

 

 

                      SECTION 6.02.  Conditions to Obligations of the Buyer Entities.  The obligations of the Buyer Entities to effect the Merger are further subject to the satisfaction or (to the extent permitted by Law) waiver by Parent (on behalf of itself and MergerCo) on or prior to the Closing Date of the following conditions:

 

                  (a)  Representations and Warranties.  The representations and warranties of the Company set forth in this Agreement (except for the representations and warranties set forth in the first sentence of Section 3.01(a) (Organization) (solely with respect to the Company), Section 3.01(c) (Capital Structure), Section 3.01(d) (Authority), the first sentence of Section 3.01(h) (Absence of Certain Changes), Section 3.01(u) (Voting Requirements), Section 3.01(v) (State Takeover Statutes), Section 3.01(w) (Brokers and Other Advisors) and Section 3.01(x) (Opinions of Financial Advisors) shall be true and correct (disregarding all qualifications or lim itations as to “materiality”, “Company Material Adverse Effect” and words of similar import set forth therein) as of the date of this Agreement and as of the Closing Date as though made on the Closing Date (except to the extent such representations and warranties expressly relate to an earlier date, in which case as of such earlier date), except where the failure of such representations and warranties to be so true and correct is not reasonably likely, individually or in the aggregate, to have a Company Material Adverse Effect; (ii) the representations and warranties contained in the first sentence of Section 3.01(a) (Organization) (solely with respect to the Company), Section 3.01(d) (Authority), Section 3.01(u) (Voting Requirements), Section 3.01(v) (State Takeover Statutes), Section 3.01(w) (Brokers and Other Advisors) and Section 3.01(x) (Opinions of Financial Advisors) shall be true and corre ct in all material respects as of the date of this Agreement and as of the Closing Date as though made on the Closing Date (except to the extent such representations and warranties expressly related to an earlier date, in which case as of such earlier date); (iii) the representations and warranties contained in Section 3.01(c) (Capital Structure), shall be true and correct in all but de minimis respects as of the date of this Agreement and as of the Closing Date as though made on the Closing Date (except to the extent such representations and warranties expressly related to an earlier date, in which case as of such earlier date); and (iv) the representations and warranties contained in the first sentence of Section 3.01(h) (Absence of Certain Changes), shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as though made on the Closing Date (except to the extent such representations and warranties expressly related to an earlier date, in which case as of su ch earlier date).

 

                  (b)  Performance of Obligations of the Company.  The Company shall have, in all material respects, performed or complied with all obligations required to be performed or complied with by it under this Agreement by the time of the Closing.

 

                  (c)  Tax Opinion.  Parent shall have received the opinion of Cleary Gottlieb Steen & Hamilton LLP, counsel to Parent, as of the date on which the Form S-4 is filed and as of the Closing Date to the effect that the Merger will qualify for the Intended Tax Treatment.  In rendering such opinion, counsel to Parent shall have received and may rely upon the certificates and representations referred to in Section 5.12(b).

 

 

 

 

                  (d)  Absence of Company Material Adverse Effect.  Since the date of this Agreement, there shall not have occurred any change, effect, event or occurrence that, individually or in the aggregate, has had or is reasonably likely to have a Company Material Adverse Effect.

 

                  (e)  HSR Act and Other Antitrust Laws.  The waiting period (and any extension thereof) applicable to the Merger under the HSR Act, or under any other applicable Antitrust Law, shall have been terminated or shall have expired without the imposition of a MAE Burdensome Condition.

 

  (f)  Officers Certificate.  Parent shall have received a certificate signed on behalf of the Company by its Chief Executive Officer or Chief Financial Officer certifying as to the matters set forth in Section 6.02(a), Section 6.02(b) and Section 6.02(d).

 

                      SECTION 6.03.  Conditions to Obligation of the Company.  The obligation of the Company to effect the Merger is further subject to the satisfaction or (to the extent permitted by Law) waiver by the Company on or prior to the Closing Date of the following conditions:

 

                  (a)  Representations and Warranties.  The representations and warranties of the Buyer Entities set forth in this Agreement (except for the representations and warranties set forth in the first sentence of Section 3.02(a) (Organization) (solely with respect to the Buyer Entities), Section 3.02(c) (Capital Structure), Section 3.02(d) (Authority), the first sentence of Section 3.02(h) (Absence of Certain Changes), Section 3.02(u) (Voting Requirements), Section 3.02(v) (State Takeover Statutes), Section 3.02(w) (Brokers and Other Advisors) and Section 3.02(x) (Available Funds) shall be true and correct (disregarding all qualifications or limitations as to “materiality”, “Parent Material Adverse Effect” and words of similar import set forth therein) as of the date of this Agreement and as of the Closing Date as though made on the Closing Date (except to the extent such representations and warranties expressly relate to an earlier date, in which case as of such earlier date), except where the failure of such representations and warranties to be so true and correct is not reasonably likely, individually or in the aggregate, to have a Parent Material Adverse Effect; (ii) the representations and warranties contained in the first sentence of Section 3.02(a) (Organization) (solely with respect to the Buyer Entities), Section 3.02(d) (Authority), Section 3.02(u) (Voting Requirements), Section 3.02(v) (State Takeover Statutes), Section 3.02(w) (Brokers and Other Advisors) and Section 3.02(x) (Available Funds) shall be true and correct in all material respects, as of the date of this Agreement and as of the Closing Date as though m ade on the Closing Date (except to the extent such representations and warranties expressly related to an earlier date, in which case as of such earlier date); (iii) the representations and warranties contained in Section 3.02(c) (Capital Structure), shall be true and correct in all but de minimis respects as of the date of this Agreement and as of the Closing Date as though made on the Closing Date (except to the extent such representations and warranties expressly related to an earlier date, in which case as of such earlier date); and (iv) the representations and warranties contained in the first sentence of Section 3.02(h) (Absence of Certain Changes), shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as though made on the Closing Date (except to the extent such representations and warranties expressly related to an earlier date, in which case as of such earlier date).

 

 

 

 

                  (b)  Performance of Obligations of the Buyer Entities.  The Buyer Entities shall have, in all material respects, performed or complied with all obligations required to be performed or complied with by them or any of them under this Agreement by the time of the Closing.

 

                  (c)  Tax Opinion.  The Company shall have received the opinion of Cravath Swaine & Moore LLP, counsel to the Company, as of the date on which the Form S-4 is filed and as of the Closing Date to the effect that the Merger will qualify for the Intended Tax Treatment.  In rendering such opinion, counsel to the Company shall have received and may rely upon the certificates and representations referred to in Section 5.12(b).

 

                  (d)  Absence of Parent Material Adverse Effect.  Since the date of this Agreement, there shall not have occurred any change, effect, event or occurrence that, individually or in the aggregate, has had or is reasonably likely to have a Parent Material Adverse Effect.

 

                  (e)  HSR Act and Other Antitrust Laws.  The waiting period (and any extension thereof) applicable to the Merger under the HSR Act, or under any other applicable Antitrust Law, shall have been terminated or shall have expired without the imposition of a MAE Burdensome Condition.

 

  (f)  Officers Certificate.  The Company shall have received a certificate signed on behalf of Parent by its Chief Executive Officer or Chief Financial Officer certifying as to the matters set forth in Section 6.03(a), Section 6.03(b) and Section 6.03(d).

 

                      SECTION 6.04.  Frustration of Closing Conditions.  None of the Company or the Buyer Entities may rely on the failure of any condition set forth in Section 6.01, 6.02 or 6.03, as the case may be, to be satisfied if such failure was caused by such party’s (or, in the case of either Buyer Entity, any other Buyer Entity) failure to perform any of its obligations under this Agreement, to act in good faith or to use its reasonable best efforts to consummate the Merger and the other transactions contemplated by this Agreement, including, solely with respect to the Buyer Entities, the Financing, as required by and subject to Sections 5.03 and 5.09.

 

 

 

 

ARTICLE VII

 

 

                      SECTION 7.01.  Termination.  This Agreement may be terminated and the Merger may be abandoned at any time prior to the Effective Time, whether before or after receipt of the Company Stockholder Approval or the Parent Stockholder Approval (with any termination by Parent constituting an effective termination by MergerCo):

 

  (a)  by mutual written consent of Parent and the Company;

 

 

          (i)  if the Merger shall not have been consummated on or before the Outside Date; provided, however, that the right to terminate this Agreement under this Section 7.01(b)(i) shall not be available to any party if the failure of such party (or in the case of the Buyer Entities, either Buyer Entity) to perform any of its obligations under this Agreement has been a principal cause of or resulted in the failure of the Merger to be consummated on or before such date; or

 

          (ii)  if any Restraint having any of the effects set forth in Section 6.01(b) shall have become final and nonappealable; provided that the party seeking to terminate this Agreement pursuant to this Section 7.01(b)(ii) shall have used reasonable best efforts to contest, resist or remove such Restraint in accordance with Section 5.03;

 

                  (c)  by Parent or the Company, if the Company Stockholder Approval shall not have been obtained at the Company Stockholders Meeting duly convened therefor or at any adjournment or postponement thereof;

 

                  (d)  by Parent or the Company, if the Parent Stockholder Approval shall not have been obtained at the Parent Stockholders Meeting duly convened therefor or at any adjournment or postponement thereof;

 

                  (e)  by Parent, if the Company breaches or fails to perform any of its covenants or agreements contained in this Agreement, or if any of the representations or warranties of the Company contained herein fails to be true and correct, which breach or failure (i) would give rise to the failure of a condition set forth in Section 6.02(a) or 6.02(b) and (ii) is not reasonably capable of being cured by the Outside Date or which the Company is not using its reasonable best efforts to cure (provided that no Buyer Entity is then in breach of any covenant or agreement contained in this Agreement and no representation or warranty of either Buyer Entity c ontained herein that then fails to be true and correct such that the conditions set forth in Section 6.03(a) or 6.03(b) could not then be satisfied);

 

 

 

 

                  (f)  by the Company, if either Buyer Entity breaches or fails to perform any of its covenants or agreements contained in this Agreement, or if any of the representations or warranties of either Buyer Entity contained herein fails to be true and correct, which breach or failure (i) would give rise to the failure of a condition set forth in Section 6.03(a) or 6.03(b) and (ii) is not reasonably capable of being cured by the Outside Date or which the Buyer Entities are not using their respective reasonable best efforts to cure (provided that the Company is not then in breach of any covenant or agreement contained in this Agreement and no represent ation or warranty of the Company contained herein that then fails to be true and correct such that the conditions set forth in Section 6.02(a) or 6.02(b) could not then be satisfied);

 

                  (g)  by the Company, in accordance with Section 4.02(d);

 

                  (h)  by Parent, in accordance with Section 4.03(d);

 

                  (i)  by Parent (i) in the event that the Company shall have failed to include the Company Board Recommendation in the Joint Proxy Statement distributed to its stockholders, (ii) during the ten business days following a Company Adverse Recommendation Change, or (iii) in the event that a tender offer or exchange offer that would, if consummated, constitute a Company Takeover Proposal shall have been commenced by a person unaffiliated with the Buyer Entities and the Company shall not have published, sent or given to its stockholders, pursuant to Rule 14e-2 under the Exchange Act, within 10 business days after such tender offer or exchange off er is first published, sent or given, or subsequently amended in any material respect, a statement recommending that stockholders reject such tender offer or exchange offer and affirming the Company Board Recommendation, provided that Parent shall no longer be entitled to terminate this Agreement pursuant to this Section 7.01(i) if the Company Stockholder Approval is obtained at the Company Stockholders Meeting;

 

(j)  by the Company (i) in the event that Parent shall have failed to include the Parent Board Recommendation in the Joint Proxy Statement distributed to its stockholders, (ii) during the ten business days following a Parent Adverse Recommendation Change, or (iii) in the event that a tender offer or exchange offer that would, if consummated, constitute a Parent Takeover Proposal shall have been commenced and Parent shall not have published, sent or given to its stockholders, pursuant to Rule 14e-2 under the Exchange Act, within 10 business days after such tender offer or exchange offer is first published, sent or given, or subsequently amended in any material respect, a statement recommending that stockholders reject such tender offer or exchange offer and affirming the Parent Board Recommendation, provided that the Company shall no longer be entitled to terminate this Agreement pursuant to this Section 7.01(j) if the Parent Stockholder Approval is obtained at the Parent Stockholders Meeting;

 

 

 

 

                  (k)  by Parent, in the event that the Company shall have committed a willful and material breach of its obligations or agreements contained in Section 4.02; or

 

                  (l)  by the Company, in the event that either Buyer Entity shall have committed a willful and material breach of its obligations or agreements contained in Section 4.03; or

 

  (m)  by the Company, in the event that the Marketing Period has ended and all of the conditions set forth in Section 6.01 and 6.02 have been satisfied (other than those conditions that by their nature are to be satisfied at the Closing), and Parent and MergerCo have failed to complete the Closing by the date the Closing is required to have occurred pursuant to Section 1.02(a) as a result of a breach by the Lenders of their obligations to make available to Parent and MergerCo the full amount of the Financing Commitment (or if definitive agreements have been entered into in connection with the Financing, pursuant to such definitive agreements).

 

                      SECTION 7.02.  Effect of Termination.  In the event of termination of this Agreement by either the Company or Parent as provided in Section 7.01, this Agreement shall forthwith become void and have no effect, without any liability or obligation on the part of the Company, either Buyer Entity or the Lenders (or any of their respective Affiliates, officers, directors, employees or controlling persons), other than the provisions of Section 3.01(w) (Brokers and Other Advisors), Section 3.02(w) (Brokers and Other Advisors), the last sentence of Section 5.02 (Access to Information; Confidentiality), Section  ;5.06 (Fees and Expenses), clause (III) and the last sentence of Section 5.09(b) (Financing), this Section 7.02 and Article VIII, which provisions shall survive such termination; provided, however, that, subject to such provisions, any such termination shall not relieve the Company or either Buyer Entity from liability for any willful and material breach hereof prior to such termination or relieve any Lenders from any liability to the Buyer Entities under the Financing Commitments.  For purposes of this Agreement, “willful and material breach” shall mean a material breach or failure to perform an obligation or agreement that is a consequence of an act undertaken by the breaching party with the actual knowledge that the taking of such act would, or would reasonab ly be expected to, cause a material breach of this Agreement. The Lenders and their Affiliates shall be express third party beneficiaries of this Section 7.02.

 

                      SECTION 7.03.  Amendment.  This Agreement may be amended by the Company and the Buyer Entities at any time before or after receipt of the Company Stockholder Approval or the Parent Stockholder Approval; provided, however, that after such approval has been obtained, there shall be made no amendment that by Law requires further approval by the stockholders of the Company or Parent without such approval having been obtained.  This Agreement may not be amended except by an instrument in writi ng signed on behalf of each of the parties hereto.

 

                      SECTION 7.04.  Extension; Waiver.  At any time prior to the Effective Time, the parties may (a) extend the time for the performance of any of the obligations or other acts of the other parties, (b) to the extent permitted by Law, waive any inaccuracies in the representations and warranties contained herein or in any document delivered pursuant hereto or (c) subject to the proviso to the first sentence of Section 7.03 and to the extent permitted by Law, waive compliance with any of the agreements or conditions contained herein.  Any agreement on the part of a party to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such party.  The failure of any party to this Agreement to assert any of its rights under this Agreement or otherwise shall not constitute a waiver of such rights.

 

 

 

 

                      SECTION 7.05.  Procedure for Termination or Amendment.  A termination of this Agreement pursuant to Section 7.01 or an amendment of this Agreement pursuant to Section 7.03 shall, in order to be effective, require, in the case of MergerCo and the Company, action by its Board of Directors or, with respect to any amendment of this Agreement pursuant to Section 7.03, the duly authorized committee of its Board of Directors to the extent permitted by Law.  Termination of this Agreement prior to the Effective Time shall not require the approval of the stockholders of either Parent or the Company.

 

 

ARTICLE VIII

 

 

                      SECTION 8.01.  Nonsurvival of Representations and Warranties.  None of the representations and warranties in this Agreement or in any instrument delivered pursuant to this Agreement shall survive the Effective Time.  This Section 8.01 shall not limit any covenant or agreement of the parties which by its terms contemplates performance after the Effective Time.

 

                      SECTION 8.02.  Notices.  Except for notices that are specifically required by the terms of this Agreement to be delivered orally, all notices, requests, claims, demands and other communications hereunder shall be in writing and shall be deemed given if delivered personally, faxed (with confirmation) or sent by overnight courier (providing proof of delivery) to the parties at the following addresses (or at such other address for a party as shall be specified by like notice):

 

if to the Buyer Entities, to:

 

Alpha Natural Resources, Inc.

One Alpha Place

P.O. Box 2345

Abingdon, Virginia 24212

Fax No.: (276) 623-4321

Attention:  General Counsel

 

 

 

with a copy to:

Cleary Gottlieb Steen & Hamilton LLP

1 Liberty Plaza

New York, New York 10006

Fax No.: (212) 225-3999

Attention: Jeffrey S. Lewis, Esq.

                   Matthew P. Salerno, Esq.

if to the Company, to:

 

Massey Energy Company

4 North 4th Street

Richmond, Virginia 23621

Fax No.: (804) 788-1804

Attention: Richard R. Grinnan, Esq.

with a copy to:

Cravath, Swaine & Moore LLP

Worldwide Plaza

825 Eighth Avenue

New York, New York  10019

Fax No.:  (212)  ###-###-####

Attention:  Minh Van Ngo, Esq.

                      SECTION 8.03.  Definitions.  For purposes of this Agreement:

 

 (a)  an “Affiliate” of any person means another person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such first person;

 

  (b)  “business day” means any day on which banks are not required or authorized to be closed in the City of New York;

 

                  (c)  “Code” means Internal Revenue Code of 1986, as amended;

 

 

                  (e)  “Company Material Adverse Effect” means any change, effect, event or occurrence that is materially adverse to the assets and liabilities (taken as a whole), business, financial condition or results of operations of the Company and its Subsidiaries, taken as a whole, other than any change, effect, event or occurrence (i) relating to economic or geopolitical conditions in general, or to the credit, debt, financial or capital markets in the United States or elsewhere in the world, including changes in interest or exchange rates, (ii) relating to changes in Law or applic able accounting regulations or principles or authoritative interpretations thereof, (iii) relating to the coal mining industry generally, (iv) consisting of any change in the Company’s stock price, credit rating or trading volume, in and of itself, or any failure, in and of itself, by the Company to meet published revenue or earnings projections, (v) relating to  the suspension of trading generally on the New York Stock Exchange, (vi) relating to any shareholder or derivative litigation arising from allegations of a breach of fiduciary duty or other violation of applicable Law relating to this Agreement or the transactions contemplated hereby, (vii) relating to the outcome of any litigation or other proceeding described in the Company Disclosure Letter or the Company Filed SEC Documents (but excluding any forward looking disclosures set forth in any risk factor section, any disclosure in any section relating to forward looking statements and any other disclosures included in such Company Filed SEC Document to the extent they are predictive or forward-looking in nature) to the extent the outcome of such litigation or proceeding can reasonably be expected based on the factual description of such litigation or other proceeding in the Company Disclosure Letter or the Company Filed SEC Documents (but excluding any forward looking disclosures set forth in any risk factor section, any disclosure in any section relating to forward looking statements and any other disclosures included in such Company Filed SEC Document to the extent they are predictive or forward-looking in nature), (viii) relating to any outbreak or escalation of hostilities or war or any act of terrorism or (ix) relating to the announcement of this Agreement and the transactions contemplated hereby and performance of and compliance with the terms of this Agreement; but only to the extent, in the case of clauses (i), (ii), (iii) or (viii), such change, effect, event, occurrence or state of fact does no t materially, disproportionately impact the Company and its Subsidiaries, taken as a whole, relative to other companies in the coal mining industry;

 

                  (f)  “Knowledge” means, with respect to any matter in question, (i) with respect to the Company, the actual knowledge of any of the persons set forth in Section 8.03(f) of the Company Disclosure Letter after due inquiry of the other executives and managers having primary responsibility for such matters and (ii) with respect to the Buyer Entities, the actual knowledge of any of the persons set forth in Section 8.03(f) of the Parent Disclosure Letter after due inquiry of the other executives and managers having primary responsibility for such matters;

 

 

  (h)  “Outside Date” means January 27, 2012; provided, that if on January 27, 2012, the condition set forth in Section 6.01(a) is not satisfied as a result of the requirements set forth in Section 5.01(e)(ii), but all other conditions set forth in Article VI are satisfied or would be satisfied if the Closing were to occur on such date, then Parent shall have the right, subject to the Company’s consent, not to be unreasonably withheld, to extend the Outside Date to April 30, 2012, so long as Parent provides written notice to the Company of its decision to exercise such right during the five business days preceding January 27, 2012 (it being understood that, in the event tha t the Outside Date is extended pursuant to this proviso, the parties will discuss in good faith appropriate adjustments to Section 4.01);

 

(i)  “Parent Disclosure Letter” means the letter dated as of the date of this Agreement delivered by the Buyer Entities to the Company;

 

                  (j)  “Parent Material Adverse Effect” means any change, effect, event or occurrence that is materially adverse to the assets and liabilities (taken as a whole), business, financial condition or results of operations of Parent and its Subsidiaries, taken as a whole, other than any change, effect, event or occurrence (i) relating to economic or geopolitical conditions in general, or to the credit, debt, financial or capital markets in the United States or elsewhere in the world, including changes in interest or exchange rates, (ii) relating to changes in Law or applicable accounting r egulations or principles or authoritative interpretations thereof, (iii) relating to the coal mining industry generally, (iv) consisting of any change in Parent’s stock price, credit rating or trading volume, in and of itself, or any failure, in and of itself, by Parent to meet published revenue or earnings projections, (v) relating to the suspension of trading generally on the New York Stock Exchange, (vi) relating to any shareholder or derivative litigation arising from allegations of a breach of fiduciary duty or other violation of applicable Law relating to this Agreement or the transactions contemplated hereby, (vii) relating to the outcome of any litigation or other proceeding described in the Parent Disclosure Letter or the Parent Filed SEC Documents (but excluding any forward looking disclosures set forth in any risk factor section, any disclosure in any section relating to forward looking statements and any other disclosures included in such Parent Filed SEC Document to the extent they ar e predictive or forward-looking in nature) to the extent the outcome of such litigation or proceeding can reasonably be expected based on the factual description of such litigation or other proceeding in the Parent Disclosure Letter or the Parent Filed SEC Documents (but excluding any forward looking disclosures set forth in any risk factor section, any disclosure in any section relating to forward looking statements and any other disclosures included in such Parent Filed SEC Document to the extent they are predictive or forward-looking in nature), (viii) relating to any outbreak or escalation of hostilities or war or any act of terrorism or (ix) relating to the announcement of this Agreement and the transactions contemplated hereby and performance of and compliance with the terms of this Agreement; but only to the extent, in the case of clauses (i), (ii), (iii) or (viii), such change, effect, event, occurrence or state of fa ct does not materially, disproportionately impact Parent and its Subsidiaries, taken as a whole, relative to other companies in the coal mining industry;

 

 

 

 

                  (k)  “person” means an individual, corporation, partnership, limited liability company, joint venture, association, trust, unincorporated organization or other entity;

 

(l)  a “Significant Subsidiary” means a significant subsidiary as defined in Rule 1-02(w) of Regulation S-X of the Securities Act;

 

(m)  a “Subsidiary” of any person means another person, an amount of the voting securities, other voting rights or voting partnership interests of which is sufficient to elect at least a majority of its board of directors or other governing body (or, if there are no such voting interests, more than 50% of the equity interests of which) is owned directly or indirectly by such first person;

 

                  (n)  “Tax Return” means all Tax returns, declarations, statements, reports, schedules, forms, elections and information returns and any amended Tax return relating to Taxes; and

 

                  (o)  “Taxes” means all income, profits, capital gains, goods and services, branch, payroll, unemployment, customs duties, premium, compensation, windfall profits, franchise, gross receipts, capital, net worth, sales, use, withholding, turnover, value added, ad valorem, registration, general business, employment, social security, disability, occupation, real property, personal property (tangible and intangible), unclaimed property, stamp, transfer (including real property transfer or gains), conveyance, severance, production, resource based, excise, withholdings, duties, levies, imposts, license, registration and other taxes (including any and all fines, penalties and additions attributable to or otherwise imposed on or with respect to any such taxes and interest thereon) imposed by or on behalf of any Governmental Entity.

 

                      SECTION 8.04.  Interpretation.  When a reference is made in this Agreement to an Article, a Section or Exhibit, such reference shall be to an Article or a Section of, or an Exhibit to, this Agreement unless otherwise indicated.  The table of contents and headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.  Whenever the words “include”, “includes” or “including” are used in this Agreement, the y shall be deemed to be followed by the words “without limitation”.  The words “hereof”, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement.  Whenever reference is made to “the transactions contemplated by this Agreement” such language shall be deemed to include, solely in the context of any representation, warranty, covenant, agreement or other obligation of either Buyer Entity hereunder, the Financing.  The word “or” when used in this Agreement is not exclusive.  All terms defined in this Agreement shall have the defined meanings when used in any certificate or other document made or delivered pursuant hereto unless otherwise defined therein.  The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and t o the masculine as well as to the feminine and neuter genders of such term.  Any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or statute as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and references to all attachments thereto and instruments incorporated therein.  References to a person are also to its permitted successors and assigns.  Any document, information or access provided or made available by or on behalf of the Company to one of the Buyer Entities shall be deemed, for purposes of this Agreement, to have been provided or made available to each of the Buyer Entities.  The words “made available” shall mean made available in an electronic dataroom or website or in a physical dataroom, in each case to which the intended recipient or its representatives had access, or such item was otherwise available on the SEC’s public website (www.sec.gov).

 

 

 

 

                      SECTION 8.05.  Consents and Approvals.  For any matter under this Agreement requiring the consent or approval of any party to be valid and binding on the parties hereto, such consent or approval must be in writing.

 

                      SECTION 8.06.  Counterparts.  This Agreement may be executed in one or more counterparts (including by facsimile or other electronic transmission), all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties.

 

                      SECTION 8.07.  Entire Agreement; Third-Party Beneficiaries.  This Agreement (a) together with the Confidentiality Agreement (other than Sections 3, 8(a) (solely to the extent inconsistent with any provision of this Agreement, including Section 5.03 hereof) and 9 thereof), constitutes the entire agreement, and supersedes all prior agreements and understandings, both written and oral, among the parties and their affiliates with respect to the subject matter hereof and thereof, it being understood that the Confidentiality Agreement (other than Sections 3, 8(a) (solely to the extent inconsistent with any provision of this Agreeme nt, including Section 5.03 hereof) and 9 thereof) shall survive the execution and delivery of this Agreement, and (b) except, from and after the Effective Time, for Sections 2.02(c) and 5.05, is not intended to confer upon any person other than the parties hereto any legal or equitable rights.  Notwithstanding the foregoing clause (b), the Lenders and their Affiliates shall be express third party beneficiaries of Sections 5.06(g), 7.02 and 8.12.

 

 

 

 

                      SECTION 8.08.  GOVERNING LAW.  THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE, REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS THEREOF.

 

                      SECTION 8.09.  Assignment.  Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned, in whole or in part, by operation of law or otherwise by any of the parties without the prior written consent of the other parties, and any assignment without such consent shall be null and void, provided, however, that the Buyer Entities may assign any or all of their rights and obligations under this Agreement to any wholly owned Subsidiary of Parent (except that no such assignment shall relieve either Buyer Entity of its obligations hereunder), provided further, that on and after the Closing Date, each of the Buyer Entities may assign all of its rights hereunder to its Lenders and debt providers for collateral security purposes only.  Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of, and be enforceable by, the parties and their respective successors and assigns.

 

                      SECTION 8.10.  Specific Enforcement; Consent to Jurisdiction; Waiver of Jury Trial.  (a) The parties agree that irreparable damage would occur and that the parties would not have any adequate remedy at law in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached and it is accordingly agreed that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement (including the parties’ obligation to consummate the Merger and the Buye r Entities’ obligation to pay the aggregate Merger Consideration and enforce their rights under the Financing Commitment), in each case, in accordance with this Section 8.10 in the Delaware Court of Chancery or any Federal court sitting in the State of Delaware, this being in addition to any other remedy to which they are entitled at law or in equity.

 

  (b)  Notwithstanding anything herein to the contrary, it is acknowledged and agreed that the Company shall be entitled to seek specific performance of Parent’s and MergerCo’s obligations to consummate the Merger only in the event that each of the following conditions has been satisfied:  (i) the Marketing Period has ended and all of the conditions set forth in Section 6.01 and 6.02 have been satisfied or waived (other than those conditions that by their nature are to be satisfied or waived at the Closing), (ii) Parent and MergerCo fail to complete the Closing by the date the Closing is required to have occurred pursuant to Section 1.02(a), (iii) the Lenders have not breached their obligations to make available to Parent and MergerCo the full amount of the Financing Commitment pursuant to the ter ms thereof (or if definitive agreements have been entered into in connection with the Financing, pursuant to such definitive agreements), and (iv) the Company has confirmed in a written notice delivered to Parent that if specific performance is granted and the Financing is funded, then the Closing will occur.  For the avoidance of doubt, while the Company may pursue both a grant of specific performance as and only to the extent expressly permitted by this Section 8.10 and the payment of the Funding Failure Termination Fee (only to the extent expressly permitted by Section 5.06), under no circumstances shall the Company be permitted or entitled to receive both such grant of specific performance and payment of the Funding Failure Termination Fee.

 

 

 

 

  (c)  Each of the parties hereto (i) consents to submit itself to the exclusive personal jurisdiction of the Delaware Court of Chancery and any Federal court sitting in the State of Delaware in the event any dispute arises out of this Agreement or the transactions contemplated by this Agreement, (ii) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court and (iii) agrees that it will not bring any action relating to this Agreement or the transactions contemplated by this Agreement in any court other than the Delaware Court of Chancery (or, if the Delaware Court of Chancery shall be unavailable, any other court of the State of Delaware or any Federal court sitting in the State of Delaware).

 

 

                      SECTION 8.11.  Severability.  If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect.  Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible to the fullest extent permitted by applicable Law in an acceptable manner to the end that th e transactions contemplated hereby are fulfilled to the extent possible.

 

 

 

 

                      SECTION 8.12.  Covered Claims.  Notwithstanding anything in this Agreement to the contrary, each of the parties hereto agrees that (i) any claim, suit, action or proceeding of any kind or description, whether in law or in equity, whether in contract or in tort or otherwise, against the Lenders or any affiliate thereof arising out of or relating to (x) the Financing Commitment, any of the transactions contemplated by the Financing Commitment or the performance of services thereunder and (y) this Agreement or any of the transactions contemplated by this Agreement (each of the foregoing, a “Covered Claim”), shall be subject to the exclusive jurisdiction of the Supreme Court of the State of New York, County of New York, or, if under applicable law exclusive jurisdiction is vested in the federal courts, the United States District Court for the Southern District of New York (and appellate courts thereof) and (ii) that it will not bring any Covered Claim, or permit any of its affiliates to bring any Covered Claim in any forum other than the Supreme Court of the State of New York, County of New York, or, if under applicable law exclusive jurisdiction is vested in the federal courts, the United States District Court for the Southern District of New York (and appellate courts thereof). Each of the parties hereto agrees that, notwithstanding anything in this Agreement to the contrary, such party irrevocably waives any right to trial by jury in any Covered Claim. The Lenders and the ir affiliates are express third party beneficiaries of this Section 8.12.

 

 

 

 

 

 

 

 

 

 

 

	ALPHA NATURAL RESOURCES, INC.
	by	/s/ Kevin S. Crutchfield
		Name:	Kevin S. Crutchfield
		Title:	Chief Executive Officer

 

 

	MASSEY ENERGY COMPANY
	by	/s/ Baxter F. Phillips, Jr.
		Name:	Baxter F. Phillips, Jr.
		Title:	Chief Executive Officer & President

 

 

 

 

 

 

 

 

 

Term
2004 LTIP	Section 3.02(c)
2005 LTIP	Section 3.02(c)
2010 LTIP	Section 3.02(c)
2.25% Convertible Notes	Section 5.09(b)(iii)(D)
2.25% Convertible Notes Indenture	Section 5.13(b)
3.25% Convertible Notes	Section 5.09(b)(iii)(C)
3.25% Convertible Notes Indenture	Section 5.13(a)
6.875% Senior Notes	Section 5.09(b)(iii)(B)
Acquisition Agreement	Section 4.02(c)
Adjusted Option	Section 2.03(a)(i)
Affiliate	Section 8.03(a)
Agreement	Recitals
Alternative Financing	Section 5.09(a)
Antitrust Law	Section 3.01(e)
Appraisal Shares	Section 2.01(e)
Assumed Awards	Section 2.03(g)
business day	Section 8.03(b)
Buyer Entities	Recitals
Cash Merger Consideration	Section 2.01(c)
Certificate	Section 2.01(c)
Certificate of Merger	Section 1.03
Charter Amendment	Section 3.02(d)
Claim	Section 5.05(b)
Closing	Section 1.02(a)
Closing Date	Section 1.02(a)
Code	Section 8.03(c)
Company	Recitals
Company 401(k) Plan	Section 3.01(c)
Company Adverse Recommendation Change	Section 4.02(c)
Company Benefit Agreement	Section 3.01(n)(vii)
Company Benefit Plan	Section 3.01(n)(vii)
Company Board Recommendation	Section 3.01(d)
Company Bylaws	Section 1.05(b)
Company Certificate of Incorporation	Section 1.05(a)
Company Common Stock	Section 2.01
Company Convertible Notes	Section 5.13(b)
Company Convertible Notes Indentures	Section 5.13(b)
Company Disclosure Letter	Section 8.03(d)
Company Employees	Section 5.04(a)
Company ERISA Affiliate	Section 3.01(n)(ii)
Company Filed SEC Documents	Section 3.01

Term
Company Intellectual Property	Section 3.01(q)(i)
Company Leased Real Property	Section 3.01(p)(ii)(A)
Company Material Adverse Effect	Section 8.03(e)
Company Material Contract	Section 3.01(j)(vii)
Company Owned Intellectual Property	Section 3.01(q)(ii)(A)
Company Owned Real Property	Section 3.01(p)(i)
Company Pension Plan	Section 3.01(n)(i)
Company Performance Restricted Cash Units	Section 3.01(c)
Company Performance RSUs	Section 3.01(c)
Company Performance Unit Award	Section 2.03(i)(A)
Company Permitted Liens	Section 3.01(p)(i)
Company Preferred Stock	Section 3.01(c)
Company Real Property Lease	Section 3.01(p)(ii)(A)
Company Restricted Cash Units	Section 3.01(c)
Company Restricted Stock	Section 3.01(c)
Company Restricted Stock Award	Section 2.03(i)(B)
Company Restricted Unit Award	Section 2.03(i)(C)
Company RSUs	Section 3.01(c)
Company SEC Documents	Section 3.01(f)(i)
Company Stock Awards	Section 3.01(c)
Company Stock Options	Section 3.01(c)
Company Stock Plans	Section 3.01(c)
Company Stock Price	Section 2.03(i)(D)
Company Stockholder Approval	Section 3.01(a)
Company Stockholders Meeting	Section 5.01(c)
Company Takeover Proposal	Section 4.02(h)
Company Termination Fee	Section 5.06(b)
Confidentiality Agreement	Section 5.02
Contract	Section 3.01(e)
Convertible Notes	Section 5.09(b)(iii)(D)
Copyrights	Section 3.01(q)(iii)
Covered Claim	Section 8.12
Deferred Directors’ Fees Program	Section 3.01(c)
DGCL	Section 1.01
Director Fee Unit	Section 2.03(i)(E)
Divestiture Action	Section 5.03(c)
Effective Time	Section 1.03
Environmental Claims	Section 3.01(l)
Environmental Law	Section 3.01(l)
Equity Award Settlement Amount	Section 2.03(i)(F)
ERISA	Section 3.01(n)(vii)(A)
Exchange Act	Section 3.01(e)
Exchange Agent	Section 2.02(a)
Exchange Fund	Section 2.02(a)
Exchange Ratio	Section 2.01(c)

Term
Financing	Section 3.02(x)
Financing Commitment	Section 3.02(x)
Financing Sources	Section 3.02(x)
Form S-4	Section 3.01(e)
Funding Failure Termination Fee	Section 5.06(d)
GAAP	Section 3.01(f)(ii)
Governmental Entity	Section 3.01(e)
Hazardous Materials	Section 3.01(l)
HSR Act	Section 3.01(e)
Incentive Awards	Section 2.03(d)
Indebtedness	Section 4.01(a)(ix)
Indemnified Party	Section 5.05(a)
Intellectual Property Rights	Section 3.01(q)(i)
Intended Tax Treatment	Recitals
IRS	Section 3.01(n)(i)
Joint Proxy Statement	Section 5.01(a)
Judgment	Section 3.01(e)
Knowledge	Section 8.03(f)
Law	Section 3.01(e)
Lenders	Section 8.03(g)
Liens	Section 3.01(b)
MAE Burdensome Condition	Section 5.03(c)
Marketing Period	Section 1.02(b)
Merger	Recitals
Merger Consideration	Section 2.01(c)
MergerCo	Recitals
MergerCo Common Stock	Section 2.01(a)
Multiemployer Plan	Section 3.01(n)(vii)(A)
Notice of Superior Proposal	Section 4.02(d)
Notice Period	Section 4.02(d)
Outside Date	Section 8.03(h)
Parent	Recitals
Parent Adverse Recommendation Change	Section 4.03(c)
Parent Benefit Agreement	Section 3.02(n)(vii)
Parent Benefit Plan	Section 3.02(n)(vii)
Parent Board Recommendation	Section 3.02(d)
Parent Bylaws	Section 3.02(e)
Parent Certificate of Incorporation	Section 3.02(e)
Parent Closing Price	Section 2.02(f)
Parent Common Stock	Recitals
Parent Convertible Notes	Section 3.02(c)
Parent Convertible Notes Indenture	Section 3.02(c)
Parent Disclosure Letter	Section 8.03(i)
Parent ERISA Affiliate	Section 3.02(n)(ii)

Term
Parent Filed SEC Documents	Section 3.02
Parent Intellectual Property	Section 3.02(q)(i)
Parent Leased Real Property	Section 3.02(p)(ii)
Parent Material Adverse Effect	Section 8.03(j)
Parent Material Contract	Section 3.02(j)(vii)
Parent Owned Intellectual Property	Section 3.02(q)(ii)
Parent Owned Real Property	Section 3.02(p)(i)
Parent Pension Plan	Section 3.02(n)(i)
Parent Permitted Liens	Section 3.02(p)(i)
Parent Preferred Stock	Section 3.02(c)
Parent Real Property Lease	Section 3.02(p)(ii)
Parent SEC Documents	Section 3.02(f)(i)
Parent Stock Awards	Section 3.02(c)
Parent Stock Plans	Section 3.02(c)
Parent Stock Price	Section 2.03(i)(G)
Parent Stockholder Approval	Section 3.02(a)
Parent Stockholders Meeting	Section 5.01(d)
Parent Takeover Proposal	Section 4.03(h)
Parent Termination Fee	Section 5.06(c)
Parent Vote Down Termination Fee	Section 5.06(e)
PBGC	Section 3.01(n)(iii)
Permits	Section 3.01(k)(i)
person	Section 8.03(k)
Post Signing Company Stock Option	Section 2.03(b)(i)
Post Signing Company Unit Award	Section 2.03(b)(ii)
Post Signing Performance Unit Award	Section 2.03(b)(iii)
Premium Cap	Section 5.05(c)
Proceeding	Section 3.01(i)
Release	Section 3.01(l)
Required Financial Information	Section 5.09(b)
Restraints	Section 6.01(b)
Rollover Exchange Ratio	Section 2.03(i)(H)
Sarbanes-Oxley Act	Section 3.01(f)(i)
SEC	Section 3.01
Section 262	Section 2.01(e)
Securities Act	Section 3.01(e)
Significant Subsidiary	Section 8.03(l)
Stock Issuance	Section 3.02(d)
Stock Merger Consideration	Section 2.01(c)
Stock Plan	Section 3.02(c)
Subsidiary	Section 8.03(m)
Superior Company Proposal	Section 4.02(h)
Superior Parent Proposal	Section 4.03(h)
Surety Bonds	Section 3.01(k)(iv)

Term
Surviving Corporation	Section 1.01
Taxes	Section 8.03(o)
Tax Return	Section 8.03(n)
Timing Agreement	Section 5.03(c)
Voting Company Debt	Section 3.01(c)
Voting Parent Debt	Section 3.02(c)
willful and material breach	Section 7.02