UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Amendment No. 2)*
Under the Securities Exchange Act of 1934
WESTMORELAND COAL COMPANY
(Name of Issuer)
Common Stock, par value $0.01 per share
(Title of Class of Securities)
960878106
(CUSIP Number)
John Herbert Roth, Esq.
Venor Capital Management LP
Times Square Tower
7 Times Square, Suite 4303
New York, New York 10036
(212) 703-2135
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)
March 23, 2016
(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 §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box x.
Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule §240.13d-7 for other parties to whom copies are to be sent.
* | The remainder of this cover page shall be filled out for a reporting persons 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).
Continued on following page(s)
Page 1 of 9 Pages
CUSIP No. 960878106 | Page 2 of 9 Pages |
1 | Names of Reporting Persons
Venor Capital Master Fund Ltd. | |||||
2 | Check the Appropriate Box If a Member of a Group (See Instructions)
a. ¨ b. x | |||||
3 | SEC Use Only
| |||||
4 | Source of Funds (See Instructions)
WC | |||||
5 | Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
¨ | |||||
6 | Citizenship or Place of Organization
Cayman Islands | |||||
Number of Shares Beneficially Owned By Each Reporting Person With
|
7 | Sole Voting Power
0 | ||||
8 | Shared Voting Power
1,010,940 | |||||
9 | Sole Dispositive Power
0 | |||||
10 | Shared Dispositive Power
1,010,940 | |||||
11 |
Aggregate Amount Beneficially Owned by Each Reporting Person
1,010,940 | |||||
12 | Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
¨ | |||||
13 | Percent of Class Represented By Amount in Row (11)
5.5% | |||||
14 | Type of Reporting Person (See Instructions)
CO |
CUSIP No. 960878106 | Page 3 of 9 Pages |
1 | Names of Reporting Persons
Venor Capital Management LP | |||||
2 | Check the Appropriate Box If a Member of a Group (See Instructions)
a. ¨ b. x | |||||
3 | SEC Use Only
| |||||
4 | Source of Funds (See Instructions)
AF | |||||
5 | Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
¨ | |||||
6 | Citizenship or Place of Organization
Delaware | |||||
Number of Shares Beneficially Owned By Each Reporting Person With
|
7 | Sole Voting Power
0 | ||||
8 | Shared Voting Power
1,136,369 | |||||
9 | Sole Dispositive Power
0 | |||||
10 | Shared Dispositive Power
1,136,369 | |||||
11 |
Aggregate Amount Beneficially Owned by Each Reporting Person
1,136,369 | |||||
12 | Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
¨ | |||||
13 | Percent of Class Represented By Amount in Row (11)
6.2% | |||||
14 | Type of Reporting Person (See Instructions)
IA |
CUSIP No. 960878106 | Page 4 of 9 Pages |
1 | Names of Reporting Persons
Venor Capital Management GP LLC | |||||
2 | Check the Appropriate Box If a Member of a Group (See Instructions)
a. ¨ b. x | |||||
3 | SEC Use Only
| |||||
4 | Source of Funds (See Instructions)
AF | |||||
5 | Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
¨ | |||||
6 | Citizenship or Place of Organization
Delaware | |||||
Number of Shares Beneficially Owned By Each Reporting Person With
|
7 | Sole Voting Power
0 | ||||
8 | Shared Voting Power
1,136,369 | |||||
9 | Sole Dispositive Power
0 | |||||
10 | Shared Dispositive Power
1,136,369 | |||||
11 |
Aggregate Amount Beneficially Owned by Each Reporting Person
1,136,369 | |||||
12 | Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
¨ | |||||
13 | Percent of Class Represented By Amount in Row (11)
6.2% | |||||
14 | Type of Reporting Person (See Instructions)
OO |
CUSIP No. 960878106 | Page 5 of 9 Pages |
1 | Names of Reporting Persons
Jeffrey A. Bersh | |||||
2 | Check the Appropriate Box If a Member of a Group (See Instructions)
a. ¨ b. x | |||||
3 | SEC Use Only
| |||||
4 | Source of Funds (See Instructions)
AF | |||||
5 | Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
¨ | |||||
6 | Citizenship or Place of Organization
United States | |||||
Number of Shares Beneficially Owned By Each Reporting Person With
|
7 | Sole Voting Power
0 | ||||
8 | Shared Voting Power
1,136,369 | |||||
9 | Sole Dispositive Power
0 | |||||
10 | Shared Dispositive Power
1,136,369 | |||||
11 |
Aggregate Amount Beneficially Owned by Each Reporting Person
1,136,369 | |||||
12 | Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
¨ | |||||
13 | Percent of Class Represented By Amount in Row (11)
6.2% | |||||
14 | Type of Reporting Person (See Instructions)
IN |
CUSIP No. 960878106 | Page 6 of 9 Pages |
1 | Names of Reporting Persons
Michael J. Wartell | |||||
2 | Check the Appropriate Box If a Member of a Group (See Instructions)
a. ¨ b. x | |||||
3 | SEC Use Only
| |||||
4 | Source of Funds (See Instructions)
AF | |||||
5 | Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
¨ | |||||
6 | Citizenship or Place of Organization
United States | |||||
Number of Shares Beneficially Owned By Each Reporting Person With
|
7 | Sole Voting Power
0 | ||||
8 | Shared Voting Power
1,136,369 | |||||
9 | Sole Dispositive Power
0 | |||||
10 | Shared Dispositive Power
1,136,369 | |||||
11 |
Aggregate Amount Beneficially Owned by Each Reporting Person
1,136,369 | |||||
12 | Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
¨ | |||||
13 | Percent of Class Represented By Amount in Row (11)
6.2% | |||||
14 | Type of Reporting Person (See Instructions)
IN |
CUSIP No. 960878106 | Page 7 of 9 Pages |
This Amendment No. 2 supplements the information set forth in the Schedule 13D filed by Venor Capital Master Fund Ltd., Venor Capital Management LP, Venor Capital Management GP LLC, Jeffrey A. Bersh and Michael J. Wartell with the United States Securities and Exchange Commission on October 30, 2015, as amended from time to time (as amended, the Schedule 13D) relating to the shares of Common Stock, par value $0.01 per share (the Shares) of Westmoreland Coal Company, a Delaware corporation (the Issuer). Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Schedule 13D.
The information set forth in response to each separate Item below shall be deemed to be a response to all Items where such information is relevant. The Schedule 13D is supplementally amended as follows.
Item 4. | Purpose of Transaction. |
On March 23, 2016, Venor Capital Management LP and the Issuer entered into that certain Agreement (the Agreement). Pursuant to the terms of the Agreement, (i) Venor Capital Management LP agreed to withdraw the February 18, 2016 notice, which was submitted by Venor Capital Master Fund Ltd., of its intention to nominate Eugene I. Davis and Robert C. Flexon for election as directors of the Issuer and not to nominate any person for election or propose any business to be presented at the Issuers 2016 annual meeting of shareholders (the Annual Meeting), and (ii) the Issuer agreed to include Robert C. Flexon on the Issuers slate of director nominees for election at the Annual Meeting and to solicit proxies for Mr. Flexons election as a director to the same extent as for the election or re-election of any other member of the Issuers slate of directors. The Issuer further agreed that, at or before the first regularly scheduled meeting of the board of directors of the Issuer (the Board) following the Annual Meeting, (i) the Board will interview Mr. Davis and at least one other candidate identified by Venor Capital Management LP (collectively, the Venor Candidates) and shall select from the Venor Candidates one individual (the Additional Director) to be added to the Board, and (ii) the Board shall take all steps necessary (including increasing the size of the Board) to add the Additional Director to the Board no later than August 15, 2016.
The description of the Agreement set forth above is not complete and is qualified in its entirety by reference to the full text of the Agreement attached hereto as Exhibit 3, which is incorporated herein by reference.
Item 5. | Interest in Securities of the Issuer. |
(a) (b) Venor Capital Master Fund may be deemed to be the beneficial owner of 1,010,940 Shares, which represent approximately 5.5% of the Issuers outstanding Shares. Venor Capital Master Fund may be deemed to have shared power to vote and shared power to dispose of 1,010,940 Shares. Each of the Reporting Persons (other than Venor Capital Master Fund) may be deemed to be the beneficial owner of 1,136,369 Shares, which represent approximately 6.2% of the Issuers outstanding Shares. Each of the Reporting Persons (other than Venor Capital Master Fund) may be deemed to have shared power to vote and shared power to dispose of 1,136,369 Shares.
The percentages in the immediately foregoing paragraph and in the cover page to this Schedule 13D are calculated based on a total of 18,307,350 Shares outstanding as of March 9, 2016 (as disclosed in the Issuers Annual Report on Form 10-K filed with the SEC on March 14, 2016).
(c) There have been no transactions with respect to the Shares during the sixty days prior to the date hereof by any of the Reporting Persons.
CUSIP No. 960878106 | Page 8 of 9 Pages |
(d) The limited partners or owners of (or investors in) the Accounts, or their subsidiaries or affiliated entities, for which Venor Capital Management or its affiliates acts as investment adviser have the right to participate in the receipt of dividends from, or proceeds from the sale of, the Shares held by the Accounts in accordance with their respective limited partnership interests (or investment percentages) in the Accounts.
(e) Not applicable.
Item 6. | Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. |
The response to Item 4 of the Schedule 13D is incorporated herein by reference.
The Agreement is filed hereto as Exhibit 3 and is incorporated herein by reference. Except as set forth herein, to the best knowledge of each of the Reporting Persons, there are no contracts, arrangements, understandings or relationships (legal or otherwise) among the persons named in Item 2 and between such persons and any other person with respect to any securities of the Issuer, including but not limited to, transfer or voting of any of the securities, finders fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies.
Item 7. | Materials to Be Filed as Exhibits. |
Exhibit 3 Agreement, dated as of March 23, 2016, by and between Westmoreland Coal Company and Venor Capital Management LP.
CUSIP No. 960878106 | Page 9 of 9 Pages |
SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.
Date: March 24, 2016 | Venor Capital Master Fund Ltd. | |||
By: Venor Capital Management LP, as investment manager By: Venor Capital Management GP LLC, as general partner | ||||
Name: | /s/ Michael J. Wartell | |||
By: | Michael J. Wartell | |||
Title: | Managing Member | |||
Date: March 24, 2016 | Venor Capital Management LP | |||
By: | Venor Capital Management GP LLC, as general partner | |||
Name: | /s/ Michael J. Wartell | |||
By: | Michael J. Wartell | |||
Title: | Managing Member | |||
Date: March 24, 2016 | Venor Capital Management GP LLC | |||
Name: | /s/ Michael J. Wartell | |||
By: | Michael J. Wartell | |||
Title: | Managing Member | |||
Date: March 24, 2016 | /s/ Jeffrey A. Bersh | |||
Jeffrey A. Bersh | ||||
Date: March 24, 2016 | /s/ Michael J. Wartell | |||
Michael J. Wartell |
Exhibit 3
AGREEMENT
This AGREEMENT (the Agreement) is made and entered into as of March 23, 2016, by and between Westmoreland Coal Company, a Delaware corporation (the Company), and Venor Capital Management LP, a Delaware limited partnership (Venor), acting on behalf of the Accounts (as defined below).
RECITALS
WHEREAS, Venor is the investment manager of a private investment fund and investment adviser to an investment account (collectively, the Accounts) and, in such capacity, is the beneficial owner of more than 6% of the common stock, par value $0.01 per share, of the Company (the Common Stock); and
WHEREAS, on February 18, 2016, Venor submitted to the Company a notice (the Nomination Notice) of its intention to nominate Eugene I. Davis and Robert C. Flexon (the Venor Nominees) for election to the board of directors of the Company (the Board) at the Companys 2016 Annual Meeting of Shareholders (the Annual Meeting); and
WHEREAS, the Board engaged in a search process for additional independent directors and publicly announced that it will include two new independent nominees on its slate of director nominees for election at the Annual Meeting (the Slate), one of whom is Robert C. Flexon; and
WHEREAS, the Board has determined that it is in the best interest of the Companys shareholders to add a third independent nominee to the Slate from among candidates identified to the Company by Venor;
NOW, THEREFORE, in consideration of the premises, the mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I.
AGREEMENTS
Section 1.1. The Annual Meeting.
(a) Venor hereby withdraws the Nomination Notice and agrees not to nominate any person for election, or propose any business to be presented to the Companys shareholders, at the Annual Meeting.
(b) The Company agrees that it shall include Robert C. Flexon on the Slate for the Annual Meeting and shall solicit proxies for his election as a director at the Annual Meeting to the same extent as for the election or re-election of any other member of the Slate.
Section 1.2. Additional Director. At or before the first regularly scheduled meeting of the Board following the Annual Meeting:
(a) the Board shall interview Eugene I. Davis and at least one other candidate identified to the Company by Venor (collectively, the Venor Candidates) and shall select from the Venor Candidates an individual (the Additional Director) to be added to the Board; and
(b) the Board shall take all steps necessary (including increasing the size of the Board) to add, and shall add, the Additional Director to the Board no later than August 15, 2016.
ARTICLE II.
MISCELLANEOUS PROVISIONS
Section 2.1. Representations and Warranties.
(a) Each of the parties hereto represents and warrants to the other party that:
(i) such party has all requisite authority and power to execute and deliver this Agreement and to consummate the transactions contemplated hereby;
(ii) the execution and delivery of this Agreement and the consummation of the actions contemplated hereby have been duly and validly authorized by all required action on the part of such party and no other proceedings on the part of such party are necessary to authorize the execution and delivery of this Agreement and the actions contemplated hereby;
(iii) the Agreement has been duly and validly executed and delivered by such party and constitutes the valid and binding obligation of such party enforceable against such party in accordance with its terms; and
(iv) this Agreement will not result in a violation of any terms or provisions of any agreements to which such person is a party or by which such party may otherwise be bound or of any law, rule, license, regulation, judgment, order or decree governing or affecting such party.
(b) The parties hereto acknowledge, warrant and represent that they have carefully read this Agreement, understand it, have consulted with and received the advice of counsel regarding this Agreement, agree with its terms, are duly authorized to execute it and freely, voluntarily and knowingly execute it.
Section 2.2. General.
(a) This Agreement contains the entire agreement between the parties with respect to the subject matter hereof and thereof and supersedes all prior and contemplated arrangements and understandings with respect thereto.
2
(b) This Agreement may be signed in counterparts, each of which shall constitute an original and all of which together shall constitute one and the same Agreement.
(c) All notices and other communications required or permitted hereunder shall be effective upon receipt and shall be in writing and may be delivered in person, electronic mail, express delivery service or U.S. mail, in which event it may be mailed by first-class, certified or registered, postage prepaid, addressed to the party to be notified at the respective addresses set forth below, or at such other addresses which may hereinafter be designated in writing:
If to the Company:
Westmoreland Coal Company
9540 South Maroon Circle, Suite 200
Englewood, Colorado 80112
Attention: Mr. Kevin A. Paprzycki
E-Mail: kpaprzycki@Westmoreland.com
with a copy to:
Westmoreland Coal Company
9540 South Maroon Circle, Suite 200
Englewood, Colorado 80112
Attention: Jennifer S. Grafton, Esq.
E-mail: jgrafton@westmoreland.com
If to Venor:
Venor Capital Management LP
Times Square Tower
7 Times Square, Suite 4303
New York, New York 10036
Attention: John Herbert Roth, Esq.
E-Mail: jroth@venorcapital.com
with a copy to:
Willkie Farr & Gallagher LLP
787 Seventh Avenue
New York, New York 10019
Attention: Michael A. Schwartz, Esq.
E-Mail: mschwartz@willkie.com
(d) Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid, but if any provision of this Agreement is held to be invalid or unenforceable in any respect, such invalidity or unenforceability shall not render invalid or unenforceable any other provision of this Agreement.
3
(e) It is hereby agreed and acknowledged that it will be impossible to measure in money the damages that would be suffered if the parties fail to comply with any of the obligations herein imposed on them and that in the event of any such failure, an aggrieved person will be irreparably damaged and will not have an adequate remedy at law. Any such person, therefore, shall be entitled to injunctive relief, including specific performance, to enforce such obligations, without the posting of any bond, and, if any action should be brought in equity to enforce any of the provisions of this Agreement, none of the parties hereto shall raise the defense that there is an adequate remedy at law.
(f) Each party hereto shall do and perform or cause to be done and performed all such further acts and things and shall execute and deliver all such other agreements, certificates, instruments and documents as any other party hereto reasonably may request in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby.
(g) This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to conflicts of laws principles. Each of the parties hereto hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the United States District Court for the Southern District of New York or any court of competent jurisdiction in the State of New York, Borough of Manhattan, for any action, proceeding or investigation in any court or before any governmental authority arising out of or relating to this Agreement and the transactions contemplated hereby (and agrees not to commence any action, proceeding or investigation relating thereto except in such courts), and further agrees that service of any process, summons, notice or document by registered mail to its respective address set forth in this Agreement shall be effective service of process for any action, proceeding or investigation brought against it in any such court. Each of the parties hereto hereby irrevocably and unconditionally waives any objection to the laying of venue of any action, proceeding or investigation arising out of this Agreement or the transactions contemplated hereby in the United States District Court for the Southern District of New York or any court of competent jurisdiction in the State of New York, Borough of Manhattan and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, proceeding or investigation brought in any such court has been brought in an inconvenient forum.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the day and year first written above.
WESTMORELAND COAL COMPANY | ||
By: | /s/ Kevin A. Paprzycki | |
Name: Kevin A. Paprzycki | ||
Title: Chief Executive Officer |
[Signature Page to Agreement]
VENOR CAPITAL MANAGEMENT LP, on behalf of certain of its advisory clients | ||
By: | /s/ Michael J. Wartell | |
Name: Michael J. Wartell | ||
Title: Co-Chief Investment Officer |
[Signature Page to Agreement]