Free Answering Brief in Opposition - District Court of Delaware - Delaware

Case1:04-cv—01336-SLR Document 42-2 Filed 05/17/2005 Page10f4
EXHIBIT N0. 1

Case 1 *04-cv—01336 S|_Ft
‘ · Document 42-2 ‘
Filed 05/17/2005 Page 2 Of 4
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. COAL • OIL • TECHNOLOGY g, .:j·` °
April 25, 2001
Westmoreland Coal Company
2 N. Cascade Avenue
14"‘ Floor
Colorado Springs, CO 80903
.‘4‘.· ` Westmoreland Mining LLC
P.O. Box 7137
490 North 31st Street
Suite 308 _
Billings, MT 59103-7137
Re: Stock Purchase Agreement dated September 15, 2000 ("Stocl< Purchase
-. 4 . j Agreement') by and between Entech, inc. ('Entech') and Westmoreland Coal
(C .— Company (“Westmoreland Coal") which has partially assigned its interests under
· the Stock Purchase Agreement to Westmoreland Mining LLC, (which together
ix · " with Westmoreland Coal is referred to collectively, "Westmoreland") (capitalized
terms used but not defined herein shall have the respective meanings given to
such terms in the Stock Purchase Agreement)
This letter agreement will confirm the agreement of Entech and Westmoreland to an adjustment
to the Purchase Price payable by Westmoreland to Entech at Closing, which adjustment relates
to the post·Closing Purchase Price adjustment set forth in Section 1.04 of the Stock Purchase
Agreement. `
Entech and Westmoreland hereby agree that, at this time, after a preliminary estimate. the
combined total of the Net Asset Value and Net Revenue Amount to be calculated pursuant to
the procedures set forth in Section 1.04(c) and (d) of the Stock Purchase Agreement is
anticipated to be atleast $5,000,000. A ·
Pursuant to Section 1.04 of the Stock Purchase Agreement, a Closing Date Certificate is to be
prepared post-Closing. Upon the request of Westmoreland,·and in order to facilitate the
Closing, Entech and Westmoreland hereby agree to an adjustment to the Purchase Price
payable at Closing of $5,000,000 ("the S5 Million Adjustment'). ln this regard, Entech and
Westmoreland hereby agree as follows:
1. The Purchase Price to be paid by Westmoreland to Entech by wire transfer at
Closing will be $133,000,000 as opposed to the $138,000,000 amount set forth in
Section 1.02 of the Stock Purchase Agreement
2. Entech will be credited with interest on the S5 Million Adjustment (the "Carrying
_ Charge'). The Carrying Charge interest shall be calculated in the manner set
Y forth in Section 1 .04(f) of the Stock Purchase Agreement, including the provision
that interest will be based on the actual number of days elapsed from the Closing
Date to the date of payment, and the date of payment for this purpose shall be
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ase 1 .04 cv 01336 SLR Document 42-2 Filed 05/17/2005 Page 3 Of 4
\ the date of payment of the post-closing Purchase Price adjustment pursuant to
Section 1.04. i
- 3. The Closing Date Certificate shall be prepared in accordance with Section 1.04
of the Stock Purchase Agreement; provided that the last step in the preparation
ofthe Closing Date Certiticate shall be to credit Entech with both a) the $5 Million
Adjustment, and b) the Carrying Charge. ·
Entech and Westmoreland hereby agree that all other provisions of the Stock Purchase
Agreement remain unchanged as a result of this letter agreement, and except for the matters
specifically set forth herein, nothing contained in this letter agreement amends or supersedes
the Stock Purchase Agreement in any respect. ‘
lf the foregoing accurately reflects our understanding and agreement, please execute four
originals of this letter agreement and retum two of them to the undersigned.
Very truly yours, .
emecn. inc:. -
' ` · . .7
By: ‘ aj ·¤ ·,<,c» ·
AGREED TO AND ACCEPTED this ___ day of _ ·
April, 2001
WESTMORELAND COAL COMPANY
By: ·
V Title: I
WESTMORELAND MlNlNG LLC I _
By:
Title: :
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ase 04 cv 01336 SLR Document 42-2 Filed 05/17/2005 Page 4 Of 4
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_ the date of payment of the post-closing Purchase Price adjustment pursuant to
Section 1.04. .
3. The Closing Date Certilicate shall be prepared in accordance with Section 1.04
of the Stock Purchase Agreement; provided that the last step in the preparation
of the Closing Date Certificate shall be to rxedlt Entech with both a) the $5 Million
Adjustment, and b) the Carrying Charge.
Entechéand Westmoreland hereby agree that all other provisions of the Stock Purchase
Agreement remain unchanged as a result of this letter agreement. and except for the matters
specifically set forth herein, nothing contained in this letter agreement amends or supercedes
the Steck Purchase Agreement In any respect.
A _ ` if the foregoing accurately reflects our understanding and agreement, please execute lour `
· originals of thls letter agreement and return two ot them to the undersigned.
Very truly yours. '
ENTECH. INC. ‘
lll Title: {grace [fel; Q
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AGREED TO AND ACCEPTED thrsQ__ day of
April. 2001
WESTMORELAND COAL COMPANY _
Title: "lt v P¢‘c’$.QL;»t’<· .
WESTMORE D MINING LLC
By; · (4.44. ‘ I I
Title; ( r-#2 .4-}; Lt"? l
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