Attached files
| file | filename |
|---|---|
| EX-99.2 - PRESENTATION - James River Coal CO | jrcc_8k-ex9902.htm |
| EX-99.1 - PRESS RELEASE - James River Coal CO | jrcc_8k-ex9901.htm |
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the
Securities
Exchange Act of 1934
|
Date
of Report (Date of earliest event reported)
|
November
3, 2009
|
|
JAMES
RIVER COAL COMPANY
|
|
(Exact
Name of Registrant as Specified in
Charter)
|
|
Virginia
|
000-51129
|
54-1602012
|
||
|
(State
or Other Jurisdiction
of
Incorporation)
|
(Commission
File
Number)
|
(IRS
Employer
Identification
No.)
|
|
901
E. Byrd Street, Suite 1600, Richmond, Virginia
|
23219
|
|
|
(Address
of Principal Executive Offices)
|
(Zip
Code)
|
|
Registrant’s
telephone number, including area code:
|
(804)
780-3000
|
|
Not
Applicable
|
|
(Former
Name or Former Address, if Changed Since Last
Report)
|
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General
Instruction A.2. below):
|
o
|
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
|
|
o
|
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
|
|
o
|
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
|
|
o
|
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
|
ITEM
1.01 ENTRY INTO
A MATERIAL DEFINITIVE AGREEMENT
The Board
of Directors of James River Coal Company (the “Company”) today amended the
Rights Agreement between the Company and Computershare Trust Company, N.A.,
successor to SunTrust Bank, as Rights Agent, dated as of May 25, 2004 (the
“Rights Agreement”), as amended by Amendment No. 1 to the Rights Agreement,
dated as of November 3, 2006 and Amendment No. 2 to the Rights Agreement, dated
as of August 2, 2007.
The
amendment to the Rights Agreement, as amended, was adopted in order to preserve
the Company’s ability to utilize substantial net operating loss (NOL)
carryforwards to offset future taxable income under the Internal Revenue
Code. As of December 31, 2008, the Company had regular federal NOL
carryforwards of approximately $240 million and federal alternative minimum tax
NOL carryforwards of approximately $150 million. The Company’s
ability to use these tax attributes would be substantially limited if there were
an “ownership change” as defined under Section 382 of the Internal Revenue Code
and IRS rules. In general, an “ownership change” would be deemed to
occur if there is a cumulative change of more than 50% over a rolling three year
period by shareholders owning more than 5% of the total outstanding
shares.
Among
other things, the amendment reduces, until December 5, 2010, the threshold at
which a person or group becomes an “Acquiring Person” under the Rights Agreement
from 20% to 4.9% of the Company’s then-outstanding shares of common
stock. The Rights Agreement, as amended, exempts shareholders whose
beneficial ownership as of November 3, 2009 exceeded 4.9% of the Company’s
then-outstanding shares of common stock so long as they do not acquire more than
an additional 0.5% of the Company’s then-outstanding shares of common stock
without the advance approval of the Company’s board of directors.
The
amendment also expands the definition of beneficial ownership to capture all
derivatives and synthetic equity positions within the definition of beneficial
ownership for purposes of the Rights Agreement, as amended.
The
Rights issued pursuant to the Rights Agreement are in all respects subject to
and governed by the provisions of the Rights Agreement, as
amended. Copies of the Rights Agreement and the amendments thereto
are available free of charge from the Company. The foregoing
description of the amendment to the Rights Agreement is qualified in its
entirety by reference to the full text of the amendment, a copy of which is
filed as an exhibit hereto and incorporated herein by reference.
ITEM
2.02 RESULTS OF
OPERATIONS AND FINANCIAL CONDITION
The
Company today issued a press release, attached as Exhibit 99.1 hereto, regarding
its results of operations for the third quarter ended September 30,
2009.
ITEM
3.03 MATERIAL
MODIFICATIONS TO RIGHTS OF SECURITY HOLDERS
The
information set forth above in Item 1.01 is incorporated into this Item 3.03 by
reference.
|
ITEM
7.01
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REGULATION
FD DISCLOSURE
|
The
Company will hold a conference call today regarding its results of operations
for the third quarter ended September 30, 2009. Materials to be
discussed in the conference call are attached as Exhibit 99.2
hereto.
The
information in this report (including Exhibits 99.1 and 99.2) is being
furnished pursuant to Items 2.02 and 7.01 of Form 8-K and shall not be deemed to
be filed for purposes of Section 18 of the Securities and Exchange Act of
1934, as amended (the “Exchange Act”), or otherwise be subject to the
liabilities of that section, nor shall it be deemed to be incorporated by
reference in any filing under the Securities Act of 1933, as amended, or the
Exchange Act.
2
FORWARD-LOOKING
STATEMENTS: Certain statements in this Form 8-K are “forward-looking
statements” within the meaning of the federal securities
laws. Statements regarding future events and developments and the
future performance of the Company, as well as management’s expectations,
beliefs, plans, estimates or projections relating to the future, are
forward-looking statements within the meaning of these laws. These
forward-looking statements are subject to a number of risks and
uncertainties. These risks and uncertainties include, but are not
limited to, the following: changes in the demand for coal by electric utility
customers; the loss of one or more of our largest customers; inability to secure
new coal supply agreements or to extend existing coal supply agreements at
market prices; failure to diversify our operations; failure to exploit
additional coal reserves; the risk that reserve estimates are inaccurate;
increased capital expenditures; encountering difficult mining conditions;
increased costs of complying with mine health and safety regulations; our
dependency on one railroad for transportation of a large percentage of our
products; bottlenecks or other difficulties in transporting coal to our
customers; delays in the development of new mining projects; increased costs of
raw materials; lack of availability of financing sources; our compliance with
debt covenants; the effects of litigation, regulation and competition; and the
other risks detailed in our reports filed with the Securities and Exchange
Commission (SEC). The Company’s management believes that these
forward-looking statements are reasonable; however, you should not place undue
reliance on such statements. These statements are based on current
expectations and speak only as of the date of such statements. The
Company undertakes no obligation to publicly update or revise any
forward-looking statement, whether as a result of future events, new information
or otherwise.
|
ITEM
9.01
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FINANCIAL
STATEMENTS AND EXHIBITS
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(d) Exhibits.
|
Exhibit
No.
|
Description
|
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4.1
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Amendment
No. 3, dated as of November 3, 2009, to the Rights Agreement between the
Company and Computershare Trust Company, N.A., successor to SunTrust Bank,
as Rights Agent, dated as of May 25, 2004, incorporated herein by
reference to the Company’s Amendment No. 1 to Form 8-A filed November 3,
2009
|
|
99.1
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Press
release dated November 3, 2009 regarding second quarter
earnings
|
|
99.2
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Discussion
materials for November 3, 2009 conference
call
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3
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
|
JAMES
RIVER COAL COMPANY
(Registrant)
By: /s/ Samuel
M. Hopkins II
Samuel
M. Hopkins II
Vice
President and Chief Accounting
Officer
|
Date: November
3, 2009
4