-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Q44RonISdmyVSmmO3vCBqt2Hnsag246NiQ28sH6cOsERnI+4fc2X4SFQPzd/HZju 1OX7IYDwCUovR+dcP6KwSA== 0000902664-06-001115.txt : 20060324 0000902664-06-001115.hdr.sgml : 20060324 20060324172512 ACCESSION NUMBER: 0000902664-06-001115 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20060324 DATE AS OF CHANGE: 20060324 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: James River Coal CO CENTRAL INDEX KEY: 0001297720 STANDARD INDUSTRIAL CLASSIFICATION: BITUMINOUS COAL & LIGNITE SURFACE MINING [1221] IRS NUMBER: 541602012 STATE OF INCORPORATION: VA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-80169 FILM NUMBER: 06710178 BUSINESS ADDRESS: STREET 1: 901 E. BYRD STREET STREET 2: SUITE 1600 CITY: RICHMOND STATE: VA ZIP: 23219 BUSINESS PHONE: 804-780-3000 MAIL ADDRESS: STREET 1: 901 E. BYRD STREET STREET 2: SUITE 1600 CITY: RICHMOND STATE: VA ZIP: 23219 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Pirate Capital LLC CENTRAL INDEX KEY: 0001295984 IRS NUMBER: 030445177 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 200 CONNECTICUT AVENUE STREET 2: 4TH FLOOR CITY: NORWALK STATE: CT ZIP: 06854 BUSINESS PHONE: 203 854 1100 MAIL ADDRESS: STREET 1: 200 CONNECTICUT AVENUE STREET 2: 4TH FLOOR CITY: NORWALK STATE: CT ZIP: 06854 SC 13D/A 1 sc13da.txt JAMES RIVER COAL COMPANY SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------- SCHEDULE 13D/A (Rule 13d-101) INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a) Under the Securities Exchange Act of 1934 (Amendment No. 6) James River Coal Company - -------------------------------------------------------------------------------- (Name of Issuer) Common Stock, par value $0.01 per share - -------------------------------------------------------------------------------- (Title of Class of Securities) 470355207 - -------------------------------------------------------------------------------- (CUSIP Number) Thomas R. Hudson Jr. Pirate Capital LLC 200 Connecticut Avenue, 4th Floor Norwalk, CT 06854 (203) 854-1100 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) March 23, 2006 - -------------------------------------------------------------------------------- (Date of Event which Requires Filing of This Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box. [ ] NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent. (Continued on following pages) (Page 1 of 6 Pages) - -------------------------- * The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). - ------------------------------ --------------------- CUSIP NO. 470355207 SCHEDULE 13D/A PAGE 2 OF 6 PAGES - ------------------------------ --------------------- - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) PIRATE CAPITAL LLC - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [X] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* AF - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER -0- ---------------------------------------------------------- NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 2,435,000 (including options to purchase up tp OWNED BY 400,000 shares of Common Stock) EACH ---------------------------------------------------------- REPORTING 9 SOLE DISPOSITIVE POWER PERSON WITH -0- ---------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 2,435,000 (including options to purchase up to 400,000 shares of Common Stock) - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON 2,435,000 (including options to purchase up to 400,000 shares of Common Stock) - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 14.6% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* IA - -------------------------------------------------------------------------------- * SEE INSTRUCTIONS BEFORE FILLING OUT! - ------------------------------ --------------------- CUSIP NO. 470355207 SCHEDULE 13D/A PAGE 3 OF 6 PAGES - ------------------------------ --------------------- - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) THOMAS R. HUDSON JR. - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [X] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* AF - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States of America - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER -0- ---------------------------------------------------------- NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 2,435,000 (including options to purchase up to OWNED BY 400,000 shares of Common Stock) EACH ---------------------------------------------------------- REPORTING 9 SOLE DISPOSITIVE POWER PERSON WITH -0- ---------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 2,435,000 (including options to purchase up to 400,000 shares of Common Stock) - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON 2,435,000 (including options to purchase up to 400,000 shares of Common Stock) - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 14.6% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* IN - -------------------------------------------------------------------------------- * SEE INSTRUCTIONS BEFORE FILLING OUT! - ------------------------------ --------------------- CUSIP NO. 470355207 SCHEDULE 13D/A PAGE 4 OF 6 PAGES - ------------------------------ --------------------- The Schedule 13D filed on November 17, 2005 by Pirate Capital LLC, a Delaware limited liability company ("Pirate Capital"), and Thomas R. Hudson Jr. (together, the "Reporting Persons"), relating to the shares of common stock, $0.01 par value (the "Shares"), of James River Coal Company (the "Issuer"), as previously amended by Amendment No. 1 filed on December 15, 2005, Amendment No. 2 filed on December 29, 2005, Amendment No. 3 filed on January 19, 2006, Amendment No. 4 filed on February 2, 2006 and Amendment No. 5 filed on February 10, 2006, is hereby amended as set forth by this Amendment No. 6. The principal executive office of the Issuer is located at 901 East Byrd Street, Suite 1600, Richmond, Virginia 23219. Item 4. PURPOSE OF TRANSACTION Item 4 of the Schedule 13D is hereby amended by the addition of the following: On March 23, 2006 Pirate Capital and the Issuer entered into an Agreement (the "Agreement") pursuant to which, among other things, the Issuer agreed that if Pirate Capital or any of the Holders submits notice on or before April 30, 2006 regarding business to be conducted and/or candidates for director to be nominated at the Issuer's 2006 Annual Meeting of Shareholders, then such notice will be deemed to have been timely delivered and, if such notice is timely delivered, then the Issuer would not hold the 2006 Annual Meeting of Shareholders until at least 75 days following receipt of such notice. A copy of the Agreement is attached hereto as Exhibit 2 and incorporated herein by reference. - ------------------------------ --------------------- CUSIP NO. 470355207 SCHEDULE 13D/A PAGE 5 OF 6 PAGES - ------------------------------ --------------------- ITEM 5. INTEREST IN SECURITIES OF THE ISSUER. Paragraphs (a), (b) and (c) of Item 5 of the Schedule 13D are hereby amended and restated as follows: (a) As of the close of business on March 23, 2006, the Reporting Persons beneficially owned 2,435,000 Shares (including options to purchase 400,000 Shares), constituting approximately 14.6% of the outstanding Shares. The aggregate percentage of Shares reported to be beneficially owned by the Reporting Persons is based upon 16,658,380 Shares outstanding, which is the total number of Shares outstanding as resported in the Issuer's Annual Report on Form 10-K for the fiscal year ended December 31, 2005. (b) By virtue of its position as General Partner of Jolly Roger Fund LP, Pirate Capital has the power to vote or direct the voting, and to dispose or direct the disposition, of all of the Shares owned by Jolly Roger Fund LP. By virtue of agreements between it and Jolly Roger Offshore Fund LTD, Jolly Roger Activist Portfolio Company LTD and Mint Master Fund Ltd., Pirate Capital has the power to vote or direct the voting, and to dispose or direct the disposition, of all of the Shares owned by Jolly Roger Offshore Fund LTD, Jolly Roger Activist Portfolio Company LTD and Mint Master Fund Ltd., respectively. By virtue of his position as sole Managing Member of Pirate Capital, Thomas R. Hudson Jr. is deemed to have shared voting power and shared dispositive power with respect to all Shares as to which Pirate Capital has voting power or dispositive power. Accordingly, Pirate Capital LLC and Thomas R. Hudson Jr. are deemed to have shared voting power and dispositive power with respect to an aggregate of 2,435,000 Shares (including options to purchase 400,000 Shares). (c) The Reporting Persons have not effected any transactions in the Shares since the most recent filing on Schedule 13D. Item 7. MATERIAL TO BE FILED AS EXHIBITS Item 7 of the Schedule 13D is hereby amended by the addition of the following: 2. Agreement between Pirate Capital and the Issuer. - ------------------------------ --------------------- CUSIP NO. 470355207 SCHEDULE 13D/A PAGE 6 OF 6 PAGES - ------------------------------ --------------------- SIGNATURES After reasonable inquiry and to the best of our knowledge and belief, we certify that the information set forth in this statement is true, complete and correct. Dated: March 24, 2006 PIRATE CAPITAL LLC By: /s/ Thomas R. Hudson Jr. --------------------------- Name: Thomas R. Hudson Jr. Title: Managing Member /s/ Thomas R. Hudson Jr. ------------------------------ Thomas R. Hudson Jr. EX-99 2 exh.txt JAMES RIVER COAL COMPANY Exhibit 2 AGREEMENT This Agreement, dated as of March 23, 2006 (this "AGREEMENT"), is entered into by and between Pirate Capital LLC, a Delaware limited liability company ("PIRATE CAPITAL"), and James River Coal Company, a Virginia corporation (the "COMPANY"). WHEREAS, through funds and accounts for which it serves as general partner and/or as investment advisor (the "FUNDS"), Pirate Capital beneficially owns an aggregate of approximately 14.5% of the Company's outstanding common stock, $0.01 par value per share ("COMMON STOCK"); WHEREAS, Article I, Section 1.3 of the Company's Amended and Restated Bylaws (the "BYLAWS") provides, in part, that business may be conducted at an annual meeting of shareholders if brought before the meeting by a shareholder of record whose written notice with respect to such business is delivered to and received by the Secretary or Assistant Secretary of the Company not less than 90 days before the date of the meeting; WHEREAS, Article II, Section 2.3 of the Bylaws provides, in part, that nominations for the election of directors at an annual meeting of shareholders may be made by a shareholder whose written notice of intent to make such nominations has been delivered to the Secretary of the Company not later than 120 days before the date of the meeting; and WHEREAS, Pirate Capital and/or one or more of the Funds is prepared to deliver to the Company the requisite advance notice (the "NOTICE") of business to be conducted and/or candidates for director to be nominated at the Company's 2006 annual meeting of shareholders (including any special meeting held in lieu thereof or any adjournments or postponements of such annual or special meeting, the "2006 ANNUAL MEETING"), and is willing to temporarily forego delivery of the Notice in light of, among other things, (a) the Company's announcement that it is exploring various strategic alternatives to maximize shareholder value, including a possible sale of the Company, and (b) the parties' desire to discuss the potential to avoid a proxy contest at the 2006 Annual Meeting and, in connection therewith, their desire to maintain the status quo as between the parties; NOW, THEREFORE, in consideration of the mutual covenants herein set forth and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows: I. TOLLING. Notwithstanding any provision to the contrary set forth in the Bylaws, each of which is hereby waived by the Company, it is expressly agreed that should Pirate Capital and/or one or more of the Funds provide the Notice at any time on or prior to 5:00 p.m. (New York time) on April 30, 2006, (i) the Notice shall be deemed timely for all purposes and neither the Company nor any person acting on its behalf shall contest the timeliness thereof, (ii) should the Company contest the validity of the Notice for any reason other than the timeliness thereof, the Company shall provide the party delivering the Notice with at least 10 business days to cure any such alleged defect after receipt of written notice thereof, and (iii) the Company shall not hold the 2006 Annual Meeting earlier than 75 days following receipt of the Notice. II. REPRESENTATIONS AND WARRANTIES. Each of the Company and Pirate Capital hereby represents and warrants with respect to itself as follows: AUTHORITY RELATIVE TO THIS AGREEMENT. It has the full legal right and power and all authority and approval required to enter into, execute and deliver this Agreement and to perform fully its obligations hereunder. This Agreement has been duly authorized, executed and delivered by it and this Agreement constitutes the valid and binding obligation of it enforceable against it in accordance with the terms hereof. ABSENCE OF CONFLICTS. Its execution and delivery of this Agreement, the consummation of the transactions contemplated hereby and its performance hereunder in accordance with the terms and conditions hereof will not: (i) violate, conflict with or result in a breach of any provision of its articles of incorporation, by-laws or comparable governing documents, (ii) violate, conflict with or result in a breach of any provision of or constitute a default (or an event that, with notice or lapse of time or both, would constitute a default) under, or result in the termination of, or accelerate the performance required by, any contract or other agreement to which it is a party or by or to which it is bound or subject; or (iii) violate any judgment, ruling, order, writ, injunction, award, decree, statute, law, ordinance, code, rule or regulation of any court or foreign, federal, state, county or local government or any other governmental, regulatory or administrative agency or authority that is applicable to it. III. GENERAL. AMENDMENTS AND WAIVERS. The provisions of this Agreement may not be amended, modified, supplemented or terminated, and waivers or consents to departures from the provisions hereof may not be given, without the written consent of the Company and Pirate Capital. NOTICES. All notices and other communications provided for or permitted hereunder to any party shall be deemed to be sufficient if contained in a written instrument and shall be deemed to have been duly delivered when delivered in person, by facsimile, by nationally-recognized overnight courier, or by first class registered or certified mail, postage prepaid, addressed to such party at the address set forth below or such other address as may hereafter be designated in writing by the addressee as follows: If to the Company, to: James River Coal Company 901 East Byrd Street, Suite 1600 Richmond, Virginia 23219 Attention: Peter T. Socha Telephone: (804) 780-3000 Telecopier: (804) 780-0643 with a copy to: Kilpatrick Stockton LLP Attention: David A. Stockton Telephone: (404) 815-6500 Telecopier: (404) 541-3402 If to Pirate Capital, to: Pirate Capital LLC 200 Connecticut Avenue, 4th Floor Norwalk, Connecticut 06854 Attention: Thomas R. Hudson Jr. Telephone: (203) 854-1100 Telecopier: (203) 854-5841 With a copy to: Schulte Roth & Zabel LLP 919 Third Avenue New York, New York 10022 Attn: Marc Weingarten, Esq. Telephone: (212) 756-2280 Telecopier: (212) 593-5955 All such notices, requests, consents and other communications shall be deemed to have been delivered (i) in the case of personal delivery or delivery by electronically confirmed facsimile, on the date of such delivery, (ii) in the case of nationally-recognized overnight courier, on the next business day and (iii) in the case of mailing, on the third business day following such mailing if sent by certified mail, return receipt requested. DESCRIPTIVE HEADINGS, ETC. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning of terms contained herein. Unless the context of this Agreement otherwise requires, as used herein: (i) words of any gender shall be deemed to include each other gender; (ii) words using the singular or plural number shall also include the plural or singular number, respectively; (iii) the words "hereof", "herein" and "hereunder" and words of similar import refer to this Agreement as a whole and not to any particular provision of this Agreement; (iv) the word "including" and words of similar import mean "including, without limitation"; (v) "or" is not exclusive; and (vi) provisions apply to successive events and transactions. This Agreement may be executed in two or more counterparts, each of which, when so executed and delivered, shall be deemed to be an original, but all of which counterparts, taken together, shall constitute one and the same instrument. Each party hereto acknowledges that it has had the benefit of legal counsel of its own choice and has been afforded an opportunity to review this Agreement with its legal counsel and that this Agreement shall be construed as if jointly drafted by the parties. SEVERABILITY. In the event that any one or more of the provisions, paragraphs, words, clauses, phrases or sentences contained herein, or the application thereof in any circumstances, is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability thereof in every other respect and of the other remaining provisions, paragraphs, words, clauses, phrases or sentences hereof shall not be in any way impaired, it being intended that all rights, powers and privileges of the parties hereto shall be enforceable to the fullest extent permitted by law. GOVERNING LAW; SPECIFIC PERFORMANCE. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York (without reference to its choice of law rules). The parties agree that irreparable damage would occur in the event that the provisions of this Agreement were not performed in accordance with their specific terms. Accordingly, it is agreed that either party shall be entitled to an injunction or injunctions to enforce specifically the terms and provisions hereof in any court of the United States or any state having jurisdiction without the posting of a bond or other security, this being in addition to any other remedy to which such party is entitled at law or in equity. ENTIRE AGREEMENT. This Agreement is intended by the parties as a final expression of and a complete and exclusive statement of their agreement and understanding in respect of the subject matter contained herein. There are no restrictions, promises, representations, warranties, covenants or undertakings relating to such subject matter, other than those set forth or referred to herein. This Agreement supersedes all prior agreements and understandings between the parties with respect to such subject matter. [Remainder of page intentionally left blank. Signature page follows.] IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written. PIRATE CAPITAL LLC By: /s/ Thomas R. Hudson Jr. Name: Thomas R. Hudson Jr. Title: Managing Member JAMES RIVER COAL COMPANY By: /s/ Peter T. Socha Name: Peter T. Socha Title: Chairman, President and Chief Executive Officer -----END PRIVACY-ENHANCED MESSAGE-----