Patriot Coal
Corporation
12312 Olive Boulevard, Suite 400
St. Louis, MO 63141
Attention: Joseph W. Bean
Paul Vining
c/o Patriot Coal Corporation
12312 Olive Boulevard, Suite 400
St. Louis, MO 63141
Reference is made
to the Agreement and Plan of Merger, dated as of April 2, 2008
(the “ Merger Agreement ”), among Magnum Coal
Company (the “ Company ”), Patriot Coal
Corporation (“ Parent ”), Colt Merger
Corporation (“ Merger Sub ”) and ArcLight Energy
Partners Fund I, L.P. and ArcLight Energy Partners Fund II, L.P.,
acting jointly, as Stockholder Representative (the “
Stockholder Representative ”). Capitalized terms used
herein and not otherwise defined shall have the meaning ascribed
thereto in the Merger Agreement.
Reference is also
made to that certain letter agreement dated July 22, 2008 (the
“Original Letter Agreement”), as amended on
December 26, 2008 (as so amended, the “Amended Letter
Agreement”), among the Company, Parent, Paul Vining and
certain Designated Stockholders (as defined in the Voting
Agreement). The parties to this amended and restated letter
agreement wish to amend and restate the Amended Letter Agreement as
set forth herein and hereby agree that the Amended Letter Agreement
is hereby amended and restated in its entirety as set forth below
(references herein to “this letter agreement” and
similar terms shall mean the Amended Letter Agreement as amended
and restated hereby, and references herein to “parties
hereto” and similar terms shall mean the parties to the
Original Letter Agreement):
The Designated
Stockholders who were parties to the Original Letter Agreement
(collectively, the “Stockholder Parties”) desire to
cause certain shares of Parent Stock received by such Stockholder
Parties pursuant to the Merger Agreement to be directed to
Mr. Paul Vining (“ Vining ”). Accordingly,
the parties hereto agree as follows:
1.
Delivery of Shares to Vining . Each of the Stockholder
Parties shall (i) on the date that is no later than ten days
following January 22, 2010 deliver and convey to Vining such
Stockholder Party’s Applicable Percentage of the number of
shares of Parent Stock equal to the Directed Share
Amount.
1
For purposes of
this letter agreement (a) “Directed Share Amount” means
the number of shares of Parent Stock equal to the quotient obtained
by dividing (1) $3,000,000 by (2) the average of the closing
price of Parent Stock on the principal stock exchange on which
Parent Stock is traded for the 10 consecutive trading days ending
five trading days after January 22, 2010, and (b)
“Applicable Percentage” for any Stockholder Party means
the percentage set forth opposite such Stockholder Party’s
name on Exhibit A hereto.”
2.
Acceptance and Acknowledgement by Vining . Vining hereby
accepts the delivery of Directed Shares, if any, as contemplated by
paragraph 1 above and acknowledges that any such Directed Shares
shall be subject to the terms of the Voting Agreement to the same
extent as other shares of Parent Stock received by Vining pursuant
to the Merger. In consideration of the right to receive the shares
of Parent Stock pursuant to paragraph 1 above, Vining hereby
acknowledges that he shall not be entitled to the transaction bonus
under Section 3.1(d) of his current Employment Agreement with
the Company dated as of April 15, 2006. Vining further
acknowledges that any Directed Shares delivered to him by an
“affiliate” (as defined in Rule 144(a)(1) under
the 1933 Act (“ Rule 144 ”)) of Parent will
be “restricted securities” (as defined in rule
144(a)(3)) and will be subject to applicable requirements under
Rule 144, including but not limited to the holding period
requirement.
3.
Acknowledgement by Parent . Parent hereby acknowledges and
agrees to the conveyance of the Directed Shares, if any, to Vining.
Parent further agrees that this letter agreement and the
transactions contemplated thereby shall not constitute a Transfer
from the undersigned to Vining for purposes of Voting Agreement
(including Section 1.02(e) and Section 3.01
thereof).
4.
Acknowledgement by the Co
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