exv4w1






Exhibit 4.1




AGREEMENT TO ENTER INTO VOTING AND STOCKHOLDERS’ AGREEMENT




     This AGREEMENT TO ENTER INTO VOTING AND STOCKHOLDERS’ AGREEMENT (this “Agreement”), is made
and entered into as of October 13, 2011, by and among Armstrong Energy, Inc., a Delaware
corporation (the “Company”), J. Hord Armstrong, III, Martin D. Wilson, Yorktown Energy Partners VI,
L.P., a Delaware limited partnership (“Yorktown VI”), Yorktown Energy Partners VII, L.P., a
Delaware limited partnership (“Yorktown VII”), Yorktown Energy Partners VIII, L.P., a Delaware
limited partnership (together with Yorktown VI and Yorktown VII, “Yorktown”), James H. Brandi,
LucyB Trust, Lorenzo Weisman/Danielle Weisman Joint Ownership with Right of Survivorship, Brim
Family 2004 Trust, Franklin W. Hobbs IV, Hutchinson Brothers, LLC a Nebraska limited liability
company, and John H. Stites, III.



W I T N E S S E T H:




     WHEREAS, it is anticipated that the Company will complete an underwritten offering to the
public pursuant to which equity securities of the Company shall be authorized and approved for
listing on the Nasdaq Stock Market system (the “Initial Public Offering”); and



     WHEREAS, the parties hereto desire to enter into this Agreement to provide for certain rights
in the event that the Initial Public Offering is not completed.



     NOW, THEREFORE, in consideration of the premises and the mutual terms, covenants and
conditions contained herein, the parties hereto hereby agree as follows:



AGREEMENT:




     1. Voting and Stockholders’ Agreement. In the event that the Company fails to complete the
Initial Public Offering on or before February 1, 2012 (the “IPO Deadline”), the parties hereby
agree to enter into that certain Voting and Stockholders’ Agreement attached hereto as Exhibit
A. Notwithstanding the foregoing, upon the written approval of Yorktown and the Company, the
IPO Deadline may be extended to a date mutually agreed upon by Yorktown and the Company, which in
no event shall be later than May 1, 2012.



     2. Successors and Assigns. This Agreement shall be binding upon, and shall inure to the
benefit of, the parties hereto and their successors and assigns.



     3. Modification and Waiver. No supplement, modification, waiver or termination of this
Agreement or any provision hereof shall be binding unless executed in writing by the parties to be
bound thereby. No waiver of any provision of this Agreement shall constitute a waiver of any other
provision (whether or not similar), nor shall such waiver constitute a continuing waiver unless
otherwise expressly provided.



     4. Governing Law. This Agreement shall be governed by, and construed in accordance with, the
laws of the State of Delaware (without regard to principles of conflict of laws).



 









 





     5. Counterparts. This Agreement may be executed in any number of counterparts, each of which
shall be an original and all of which shall together constitute one and the same agreement.



[Signature Pages Follow.]









 









 








     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and
year first above written.



	 	 	 	 	 
	 	Armstrong Energy, Inc.

 	 
	 	By:  	
/s/ J. Hord Armstrong, III	 
	 	 	J. Hord Armstrong, III, Chairman and CEO 	 
	 	 	 	 
	 	
/s/ J. Hord Armstrong, III	 
	 	J. Hord Armstrong, III 	 
	 	 	 	 
	 	
/s/ Martin D. Wilson	 
	 	Martin D. Wilson 	 
	 	 	 	 
	 	Yorktown Energy Partners VI, L.P.

 	 
	 	By:  	Yorktown VI Company LP, its general partner
 	 
	 	 	 	 
	 	By:  	 Yorktown VI Associates LLC, its general partner
 	 
	 	 	 	 
	 	By:  	
/s/ Bryan H. Lawrence	 
	 	Name:  	
Bryan H. Lawrence	 
	 	Title:  	
Member	 



[Signature Page to Agreement to Enter into Voting and Stockholders’ Agreement]






 









 






	 	 	 	 	 
	 	Yorktown Energy Partners VII, L.P.

 	 
	 	By:  	Yorktown VII Company LP, its general partner
 	 
	 	 	 	 
	 	By:  	 Yorktown VII Associates LLC, its general partner
 	 
	 	 	 	 
	 	By:  	
/s/ Bryan H. Lawrence	 
	 	Name:  	
Bryan H. Lawrence	 
	 	Title:  	
Member	 
	 
	 	Yorktown Energy Partners VIII, L.P.

 	 
	 	By:  	Yorktown VIII Company LP, its general partner
 	 
	 	 	 	 
	 	By:  	 Yorktown VIII Associates LLC, its general partner
 	 
	 	 	 	 
	 	By:  	
/s/ Bryan H. Lawrence	 
	 	Name:  	
Bryan H. Lawrence	 
	 	Title:  	
Member	 
	 	 	 
	 	
/s/ James H. Brandi	 
	 	James H. Brandi 	 
	 	 	 	 
	 	LucyB Trust (February 26, 2007)

 	 
	 	By:  	
/s/ Linda B. Brandi	 
	 	 	Linda B. Brandi, Trustee 	 
	 	 	 	 
	 	Lorenzo Weisman/Danielle Weisman Joint

 Ownership With Right Of Survivorship

 	 
	 	By:  	
/s/ Lorenzo Weisman	 
	 	 	Lorenzo Weisman 	 
	 	 	 	 
	 	By:  	
/s/ Danielle Weisman	 
	 	 	Danielle Weisman 	 
	 	 	 	 



[Signature Page to Agreement to Enter into Voting and Stockholders’ Agreement]




 









 









	 	 	 	 	 
	 	Brim Family 2004 Trust

 	 
	 	By:  	
/s/ Debra Patterson	 
	 	Name:  	
Debra Patterson	 
	 	Title:  	
Vice President	 
	 	 	 
	 	
/s/ Franklin W. Hobbs IV	 
	 	Franklin W. Hobbs IV 	 
	 	 	 	 
	 	Hutchinson Brothers, LLC

 	 
	 	By:  	
Hutchinson Brothers, LLC	 
	 	By:  	
Steven N. Hutchinson	 
	 	Name:  	
Steven N. Hutchinson	 
	 	Title:  	
Manager	 
	 	 	 
	 	
/s/ John H. Stites, III	 
	 	John H. Stites, III 	 
	 	 	 	 



[Signature Page to Agreement to Enter into Voting and Stockholders’ Agreement]




 









 








EXHIBIT A




VOTING AND STOCKHOLDERS’ AGREEMENT




     This VOTING AND STOCKHOLDERS’ AGREEMENT (this “Agreement”), is made and entered into as of
________, 2012, by and among Armstrong Energy, Inc., a Delaware corporation (the “Company”), J.
Hord Armstrong, III and Martin D. Wilson (together with any additional member of the management of
the Company who becomes a party to this Agreement, the “Management Owners”), Yorktown Energy
Partners VI, L.P., a Delaware limited partnership (“Yorktown VI”), Yorktown Energy Partners VII,
L.P., a Delaware limited partnership (“Yorktown VII”), Yorktown Energy Partners VIII, L.P., a
Delaware limited partnership (together with Yorktown VI and Yorktown VII, “Yorktown”), James H.
Brandi, LucyB Trust, Lorenzo Weisman/Danielle Weisman Joint Ownership with Right of Survivorship,
Brim Family 2004 Trust, Franklin W. Hobbs IV, Hutchinson Brothers, LLC a Nebraska limited liability
company, and John H. Stites, III (collectively, the “Owners” and each individually as an “Owner”).



W I T N E S S E T H:




     WHEREAS, as a result of the Plan of Conversion dated August 22, 2011 adopted and approved by
Armstrong Land Company, LLC, pursuant to which Armstrong Land Company, LLC was converted into a
Delaware corporation, the Owners own all of the issued and outstanding common stock, par value $.01
per share, of the Company (“Common Stock”); and



     WHEREAS, in connection with and as a requirement of the approval of the aforementioned
conversion, the parties hereto agree as provided herein;



     NOW, THEREFORE, in consideration of the premises and the mutual terms, covenants and
conditions contained herein, the parties hereto hereby agree as follows:



     Section 1. Voting Agreement.



     (a) General Rights. From and after the date hereof and until the provisions of this
Section 1 shall terminate as provided in subsection (c) hereof, the Owners agree to vote all of
their “Owner Shares” (as defined below) and any other voting securities of the Company over which
they have voting control, and the Company will take all reasonable actions within its control, that
may be necessary in order to cause:




     (i) the authorized number of directors on the Board of Directors (the “Board”) to be
established at four (4) directors;




     (ii) the election to the Board of two (2) representatives designated by Yorktown, who
shall initially be Bryan H. Lawrence and W. Howard Keenan, Jr. for so long as Yorktown owns
in the aggregate at least a majority of the outstanding voting securities of the Company;



 









 






     (iii) the removal from the Board (with or without cause) of any or all of the
representatives designated by Yorktown hereunder at the written request of an authorized
representative of Yorktown (but only upon such written request and under no other
circumstances);




     (iv) in the event that any representative designated by Yorktown hereunder for any
reason ceases to serve as a member of the Board during his term of office, the resulting
vacancy on the Board to be filled by a representative designated by an authorized
representative of Yorktown (for so long as Yorktown is entitled to place a representative on
the Board pursuant to Section 1(a)(ii));




     (v) the election to the Board of two (2) individuals designated by the Management
Owners acting together, who shall initially be J. Hord Armstrong, III and Martin D. Wilson;




     (vi) the removal from the Board (with or without cause) of any or all of the
representatives designated by the Management Owners hereunder at the written request of an
authorized representative of the Management Owners (but only upon such written request and
under no other circumstances);




     (vii) in the event that any representative designated by the Management Owners
hereunder for any reason ceases to serve as a member of the Board during his term of office,
the resulting vacancy on the Board to be filled by a representative designated by an
authorized representative of the Management Owners (for so long as the Management Owners
are entitled to place a representative on the Board pursuant to Section 1(a)(v)); and




     (viii) upon the written request of Yorktown, at any time and in Yorktown’s sole
discretion, an increase in the authorized number of directors of the Board to five (5)
members and the election to fill the vacancy on the Board by a representative of Yorktown.



     (b) The Company (and the officers and agents acting on its behalf) shall not take action in
connection with the following matters without the approval of a majority of the representatives of
Yorktown on the Board (provided for this purpose, the “Company” shall include any consolidated
subsidiaries of the Company):




	 	(i)	 	an investment in a Project or a Project Company;






	 	(ii)	 	the issuance or repurchase of any Company Securities, other
than advances or payments with respect to existing credit facilities or lines
of credit (which are subject to Section 1(b)(v) below);






	 	(iii)	 	the sale, lease or other disposition of assets of the Company
having a value in excess of $1,000,000;




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	 	(iv)	 	the merger or consolidation of the Company with any other
entity, conversion of the Company into another form of entity or exchange of
equity interest with any other Person or entity;






	 	(v)	 	the creation, incurrence, or assumption of any indebtedness;






	 	(vi)	 	the approval of the annual budget, including operating and
capital budgets (the “Annual Budget”) of the Company;






	 	(vii)	 	the approval of expenditures, other than for investments in
Projects and Project Companies (which are subject to Section 1(b)(i) above),
which exceeds in the aggregate the amount approved in the Annual Budget;






	 	(viii)	 	the adoption of any equity compensation plan for Employees and the issuance
of any stock options, warrants or other convertible securities thereunder;






	 	(ix)	 	any transaction or contract with the Owners who are also
employed by the Company or any Subsidiary, other than expense reimbursement to
officers of the Company in the ordinary course of business;






	 	(x)	 	the declaration or payment of any distribution or dividend to
the Owners of the Company;






	 	(xi)	 	the exercise of the Company’s Right of First Refusal granted
pursuant to Section 2(b)(i);






	 	(xii)	 	entering into any dissimilar Business or changing the
Company’s Business;






	 	(xiii)	 	authorizing a new class or series of securities of the Company;






	 	(xiv)	 	the commencement of a voluntary bankruptcy by the Company;






	 	(xv)	 	the appointment of the Company’s independent certified public
accountants;






	 	(xvi)	 	the setting of the compensation packages of the three most
highly-paid executive officers of the Company or any change to such
compensation packages; or






	 	(xvii)	 	the initial sale of the Company’s Common Stock (or other equity interests) to
the public pursuant to a registration under the 1933 Act.





     (c) Termination. The voting rights set forth in this Section 1 shall terminate upon
the completion of a Qualified Public Offering. From and after the termination of the voting rights
set forth in this Section 1, the Board shall be elected by the holders of a majority of the shares
of Common Stock owned by the Owners, to the extent applicable, at the time of such determination.



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     Section 2. Transfer Provisions.



     (a) General Rights. In addition to any restrictions on the Transfer of Owner Shares
that are imposed under applicable securities laws, no Owner shall Transfer or Pledge (as defined in
Section 3 below) all or any part of his Owner Shares without the prior written consent of Yorktown
and the holders of a majority of the shares of Common Stock then outstanding, unless in accordance
with this Section 2.



     (b) Right of First Refusal and Tag-Along Right. No Owner shall have the right to
effect any Transfer of his/its Owner Shares (other than as provided in subsection (c) of this
Section 2) unless the Owner proposing to Transfer such Owner Shares (the “Selling Owner”) provides
written notice to the other Owners (a “Transfer Notice”) of such desire, identifying the number of
such Selling Owner’s Owner Shares that the Selling Owner proposes to Transfer (the “Disposition
Shares”) together with the Offered Price (as defined below), and such Selling Owner complies with
the Right of First Refusal of clause (i) and the Tag-Along requirements of clause (ii) below.



          (i) Right of First Refusal. The Company shall have a right of first refusal (the
“Company’s Right of First Refusal”) to purchase all or any portion of the Disposition Shares, if
the Company gives written notice of the exercise of such right to the Selling Owner within 20 days
(the “Company’s Refusal Period”) from the receipt of the Transfer Notice. If the Company does not
intend to exercise the Company’s Right of First Refusal in full or if the Company is not lawfully
able to repurchase all of the Disposition Shares, the Company will send written notice thereof (the
“Company’s Expiration Notice”) to the Selling Owner and to each other Owner at least 10 days before
the expiration of the Company’s Refusal Period. If the Company does not purchase all of the
Disposition Shares pursuant to the Company’s Right of First Refusal, the non-selling Owners (the
“Non-Selling Owners”) shall have a right of second refusal (the “Owners’ Right of Second Refusal”)
to purchase the remaining Disposition Shares (the “Remaining Disposition Shares”) by giving written
notice of the exercise of such right to the Selling Owner and the Company within 20 days from
receipt of the Company’s Expiration Notice. Each Non-Selling Owner shall have the right to
purchase such Owner’s Proportionate Share (based upon the group of Non-Selling Owners) of the
Remaining Disposition Shares. If any Non-Selling Owner elects not to purchase his or its
Proportionate Share of the Remaining Disposition Shares, the other Non-Selling Owners may purchase
their respective Proportionate Share (based on the group of the other Non-Selling Owners) of such
Remaining Disposition Shares, and so on for any unpurchased Remaining Disposition Shares, until no
Non-Selling Owner desires to purchase any more Remaining Disposition Shares. The purchase price
for the Disposition Shares to be purchased by the Company upon exercise of the Company’s Right of
First Refusal or the Non-Selling Owners upon exercise of the Owners’ Right of Second Refusal will
be the bona fide cash price (or the fair market value of any non-cash consideration as determined
in good faith by the Board) per share for which the Selling Owner proposes to transfer such
Disposition Shares to the Proposed Purchaser(s) (as defined below) (the “Offered Price”) (subject
to any rights the Company may have under any other agreement to purchase all or some of such
Disposition Shares at a lower price), and will be payable within 30 days after the date of the
Company’s Expiration Notice. Payment of the purchase price will be made, at the option of the
Company, or each of the Non-Selling Owners, as applicable, (a) in cash (by cashier’s check), (b) by
wire transfer of immediately available funds to the Selling Owner, or (c) by any combination of the
foregoing.



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          (ii) Tag-Along Rights. If the Company and the non-Selling Owners do not exercise
their respective refusal rights to purchase all of the Disposition Shares, the Selling Owner shall
cause the Person (as defined in Section 3 below) or group that proposes to acquire the Disposition
Shares remaining after the exercise of such rights (the “Proposed Purchaser”) to offer in writing
(the “Purchase Offer”) to the other Owners (each recipient is referred to as a “Tag-Along Owner”)
to purchase a Proportionate Share (as defined in Section 3 below) of the remaining balance of such
Shares. Any such purchase shall be made in accordance with the following:



               (A) the purchase from each Tag-Along Owner shall be made at the highest price per share and on
such other terms and conditions as the Proposed Purchaser has offered to purchase Disposition
Shares from the Selling Owner;



               (B) each Tag-Along Owner shall have no more than 20 days from the receipt of the Purchase
Offer in which to accept such Purchase Offer, in whole or in part;



               (C) to the extent that a Tag-Along Owner accepts such Purchase Offer, the number of Owner
Shares to be sold to the Proposed Purchaser by the Selling Owner shall be reduced; and



               (D) the closing of such purchase shall occur within 30 days after such acceptance or at such
other time as the Selling Owner, the accepting Tag-Along Owners and the Proposed Purchaser may
agree.



     (c) Excluded Affiliate Transfers. The provisions of this Section 2 do not apply to
any Transfer by an Owner of his Owner Shares in an Excluded Affiliate Transfer (as defined in
Section 3 below).



     (d) Termination. This Section 2 shall terminate upon the earlier of any one or more
of the following: (i) the first date on which the Owners collectively do not own at least 50% of
the equity interests in the Company or in any successor or assignee resulting from the
consolidation, merger or sale of all or substantially all of the assets of the Company; (ii) the
adjudication of the Company as a bankrupt, the execution by the Company of an assignment for the
benefit of creditors or the appointment of a receiver of the Company; (iii) the voluntary or
involuntary dissolution of the Company; (iv) when there is otherwise only one surviving Owner as a
party to this Agreement; (v) the date on which the Company completes the initial sale of its shares
of Common Stock to the public by filing a registration statement on Form S-1 or such other form
under the 1933 Act, as amended; or (vi) the tenth (10th) anniversary of the date hereof.
The Company and the Owners each covenant and agree to enter into, and to use their commercially
reasonable efforts to cause any successor or assignee of the Company described in clause (i) of
this subsection to enter into, an agreement substantially similar to this Agreement if the Owners
collectively own at least 50% of the equity interests in such successor or assignee.



     (e) Compliance with Securities Laws. Anything in this Agreement to the contrary
notwithstanding, no Transfer or Pledge of capital stock of the Company otherwise permitted or
required by this Agreement shall be made unless such Transfer or Pledge is in compliance with
federal and state securities laws, including without limitation the 1933 Act and the rules and



5









 




regulations thereunder. If any such Transfer or Pledge is made pursuant to an exemption from such
laws, rules and regulations, such Transfer or Pledge shall be made only upon the stockholder first
having delivered to the Company a favorable written opinion of counsel, reasonably satisfactory in
form and substance to the Company, to the effect that the proposed sale or transfer is exempt from
registration under the 1933 Act and any applicable state securities laws; provided, however, that
no such opinion of counsel shall be required for (i) an Excluded Affiliate Transfer by a
stockholder if, in each case, the transferee agrees in writing to be subject to the terms and
conditions hereof to the same extent as if such transferee were an original stockholder hereunder,
or (ii) a sale duly made in compliance with Rule 144 promulgated under the 1933 Act, or any
successor or analogous rule to Rule 144, or if the stockholder would be permitted to transfer the
securities pursuant to paragraph (k) of Rule 144 (it being agreed that the Company shall have the
right to receive evidence satisfactory to it regarding compliance with such rule or any successor
or analogous rule prior to the registration of any such transfer), or (iii) a Transfer or Pledge
pursuant to an effective registration statement.




     Section 3. Definitions. As used in this Agreement, the following terms shall have the
meanings assigned to them in this Section 3:



     “Affiliate” shall mean, when used with respect to a specified Person, any other Person
which, directly or indirectly, owns or controls, is under common ownership or control with, or is
owned or controlled by, such Person, and any directors, officers, partners or 10% or more owners of
such Person.



     “Business” shall mean the business of the Company, which shall be (i) to make
investments in Projects through Project Companies; (ii) to own, hold, exercise all rights in
connection with, and otherwise sell or dispose of investments in Project Companies; and (iii) to
carry on any activity directly relating to or arising from any of the above that corporation
organized under the General Corporation Law of the State of Delaware may carry on as determined by
the Board from time to time.



     “Company Securities” shall mean the Common Stock and Preferred Stock, or classes or
series thereof, or options, rights, warrants or appreciation rights relating thereto, or any other
type of equity security that the Company may lawfully issue any unsecured or secured debt
obligations of the Company or debt obligations of the Company convertible into any class or series
of equity securities of the Company.



     “Employees” means an individual who is employed by, or serves as a service provider or
any other independent contractor role for, the Company or any of its Subsidiaries.



     “Excluded Affiliate Transfer” means any (i) Transfer of Owner Shares by Yorktown
(whether voluntarily or by operation of law) to any partner or other Affiliate of Yorktown or to
any successor fund of Yorktown, (ii) any Transfer of Owner Shares by an Owner who is an individual
to any Person for estate planning purposes if the Owner retains the right (directly or indirectly)
to vote such Owner Shares following such transfer and (iii) any Transfer of Owner Shares by an
Owner which is a trust to the principal beneficiary of that trust; provided that, in the case of
any Transfer described in clauses (i)-(iii), such transferee agrees to be bound by the terms of this Agreement and



6









 




evidences same by executing a copy of this Agreement promptly upon receiving the assignment of such
Owner Shares, in which case such transferee shall be considered an Owner hereunder.




     “Owner Shares” means with respect to any Owner (i) all shares of Common Stock and/or
preferred stock of the Company, par value $0.10 per share (“Preferred Stock”) held by such Owner,
(ii) any equity securities issued or issuable directly or indirectly to an Owner with respect to
the Common Stock referred to in clause (i) above by way of stock dividend or stock split or in
connection with a combination of shares, conversion, recapitalization, merger, consolidation or
other reorganization, and (iii) any other shares of any class or series of voting security of the
Company currently held or held in the future by an Owner. As to any particular shares constituting
Owner Shares, such shares will cease to be Owner Shares when they have been transferred to any
person who is not a party hereto, other than pursuant to an Excluded Affiliate Transfer.



     “Person” shall mean an individual, partnership, limited partnership, limited liability
company, foreign limited liability company, trust, estate, corporation, custodian, trustee,
executor, administrator, nominee or other entity in a representative capacity.



     “Pledge” means any pledge of an interest in, or other encumbrance placed upon, Owner
Shares as security for indebtedness or for other purposes.



     “Project” shall mean projects relating to the energy industry as determined by the
Board from time to time.



     “Project Company” shall mean entities formed for the purpose of holding investments in
Projects.



     “Proportionate Share” means for purposes of Section 2, the number of Owner Shares
equal to the product of (i) the total number of Disposition Shares which a Proposed Purchaser has
offered to purchase, times (ii) the fraction which is equal to the total number of Owner
Shares which a Tag-Along Owner or Non-Selling Owner, as applicable, owns, over the
aggregate number of Owner Shares owned by all Tag-Along Owners or Non-Selling Owners, as
applicable, plus, in the case of purchases other than pursuant to purchases made pursuant to
Section 2(b)(i), the aggregate number of Owner Shares owned by the Selling Owner.



     “Qualified Public Offering” means any firm commitment underwritten offering by the
Company to the public pursuant to an effective registration statement under the 1933 Act (i) for
which aggregate cash proceeds to be received by the Company from such offering (without deducting
underwriting discounts, expenses and commissions) are at least $50,000,000, and (ii) pursuant to
which equity securities of the Company are authorized and approved for listing on the New York
Stock Exchange or the Nasdaq Stock Market system.



     “Subsidiary” means any Project Company, corporation or other entity a majority of the
common stock (or similar equity securities) of which having ordinary voting power to elect a
majority of the board of directors or other Persons performing similar functions is at the time
owned,
directly or indirectly, with power to vote, by the Company or any direct or indirect
Subsidiary of the Company.



7









 





     “Transfer” means any direct or indirect sale, assignment or other disposition of Owner
Shares, other than a Pledge.



     Section 4. Enforcement; Legends. No Owner Shares shall be transferred on the books of
the Company nor shall any Transfer or Pledge thereof be effective unless and until the terms and
provisions of this Agreement are first complied with and, in case of violation of this Agreement by
the attempted Transfer or Pledge of Owner Shares without compliance with the terms and provisions
hereof, such Transfer or Pledge shall be invalid and of no effect. The Owners will cause the
Company to imprint a legend on any certificates evidencing Owner Shares which are subject to this
Agreement referring to the voting rights and the restrictions on transfer of the Owner Shares
imposed hereunder. Any such legend shall be removed from the certificates evidencing any shares
which cease to be “Owner Shares,” as set forth in the definition of such term in Section 3 hereof.



     Section 5. Covenant Regarding Registration Rights. The Company agrees that upon the
request of the holders of at least a majority of the outstanding shares of Common Stock, the
Company will enter into a registration rights agreement with all holders of Common Stock. Such
registration rights agreement shall provide no less than two demand registration rights on Form S-3
for Yorktown (one of which demand registration rights may be satisfied by a shelf registration
statement on Form S-3), and shall provide for an unlimited number of piggy-back rights, each
subject to standard terms and conditions. The rights to cause the Company to register Common Stock
or similar equity interests in the Company pursuant to this Section 5 may be assigned to any
affiliate of any holder of Common Stock, subject to the other terms and conditions of this
Agreement.



Section 6. Right of First Offer on Subsequent Issuances.



     (a) General. Each Owner owning 10,000 or more shares of Common Stock or Preferred
Stock has the right to purchase up to such Owner’s Pro Rata Share (as defined below) of any “New
Securities” (as defined in Section 6(b)) that the Company may from time to time issue after the
date of this Agreement. An Owner’s “Pro Rata Share” for purposes of this right of first offer is
the ratio of (i) the number of shares of Common Stock and Preferred Stock as to which such Owner
is the beneficial owner, to (ii) the total number of shares of Common Stock and Preferred Stock
beneficially owned in the aggregate by all stockholders.



     (b) New Securities. “New Securities” shall mean any Common Stock or Preferred Stock
of the Company, whether now authorized or not, and rights, options or warrants to purchase such
Common Stock or Preferred Stock, and securities of any type whatsoever that are, or may become,
convertible or exchangeable into such Common Stock or Preferred Stock; provided, however, that the
term “New Securities” does not include:




     (i) the issuance of any Common Stock, Preferred Stock or other forms of equity
compensation to Employees approved by the Board;



8









 






     (ii) Company Securities issued as consideration to the sellers in connection
with an acquisition by the Company in a bona fide arms length transaction, the terms
of which have been approved by the Board;




     (iii) Company Securities issued in connection with any issuance of debt by the
Company, the terms of which have been approved by the Board;




     (iv) Company Securities issued upon the exercise or conversion of any Company
Securities issued in compliance with this Section 6;




     (v) Company Securities offered to the public pursuant to a registration
statement filed under the 1933 Act, including without limitation pursuant to a
Qualified Public Offering; and




     (vi) Company Securities issued as a dividend or upon any split or other
pro-rata subdivision or combination of the Company Securities.



     (c) Procedures. In the event that the Company proposes to undertake an issuance of
New Securities, it shall give to each Owner written notice of its intention to issue New Securities
(the “Rights Notice”), describing the type of New Securities and the price and the general terms
upon which the Company proposes to issue such New Securities. Each Owner shall have 15 days from
the date of receipt of any such Rights Notice to agree in writing to purchase up to such Owner’s
Pro Rata Share of such New Securities in cash for the price and upon the general terms specified in
the Rights Notice by giving written notice to the Company and stating therein the quantity of New
Securities to be purchased (not to exceed such Owner’s Pro Rata Share). If any Owner fails to so
agree in writing within such 15-day period to purchase such Owner’s full Pro Rata Share of an
offering of New Securities (a “Nonpurchasing Holder”), then such Nonpurchasing Holder shall forfeit
the right hereunder to purchase that part of his Pro Rata Share of such New Securities that he did
not so agree to purchase and the Company shall promptly give each Owner who has timely agreed to
purchase his full Pro Rata Share of such offering of New Securities (a “Purchasing Holder”) written
notice of the failure of any Nonpurchasing Holder to purchase such Nonpurchasing Holder’s full Pro
Rata Share of such offering of New Securities (the “Overallotment Notice”). Each Purchasing Holder
shall have a right of overallotment such that such Purchasing Holder may agree to purchase a
portion of the Nonpurchasing Holders’ unpurchased Pro Rata Shares of such offering on a pro rata
basis according to the relative Pro Rata Shares of the Purchasing Holders, at any time within 15
days after receiving the Overallotment Notice.



     (d) Failure to Exercise. In the event that the Owners fail to exercise in full the
right of first offer within such 15 plus 15 day period, then the Company shall have 45 days
thereafter to sell the New Securities with respect to which the Owners’ rights of first offer
hereunder were not exercised, at a price and upon general terms not more favorable to the
purchasers thereof than specified in the Company’s Rights Notice to the Owners. In the event that
the Company has not issued and sold the New Securities within such 45 day period, then the Company
shall not thereafter issue or sell any New Securities without again first offering such New
Securities to the Owners pursuant to this Section 6.



9









 






     (e) Termination. This right of first offer under this Section 6 shall terminate upon
(i) the date on which the Company completes the initial sale of its shares of Common Stock to the
public by filing a registration statement on Form S-1 or such other form under the 1933 Act, as
amended, (ii) the sale of all or substantially all the assets of the Company or (iii) an
acquisition of the Company by another corporation or entity by sale of capital stock,
consolidation, merger or other reorganization in which the holders of the Company’s outstanding
voting stock immediately prior to such transaction own, immediately after such transaction,
securities representing less than 50% of the voting power of the corporation or other entity
surviving such transaction.



     (f) Waiver. Any provision of this Section 6 may be amended and the observance thereof
may be waived (either generally or in a particular instance and either retroactively or
prospectively), upon the written consent of both (i) a majority in interest of the shares of Common
Stock held by Owners and (ii) Yorktown. Any amendment or waiver effected in accordance with this
Section 6(f) shall be binding upon each Owner and the Company.



     Section 7. Reports.



     (a) Within 45 days after the end of each fiscal quarter, the Management Owners shall furnish
to each Owner a consolidated unaudited balance sheet of the Company and its Subsidiaries as of the
end of such fiscal quarter and the related income statement, statement of stockholders equity and
statement of cash flows for such fiscal quarter prepared in accordance with generally accepted
accounting principles, consistently applied, except that footnotes and year-end adjusting entries
shall not be required.



     (b) Within 120 days after the end of each fiscal year, the Management Owners shall furnish to
each Owner a consolidated balance sheet of the Company and its Subsidiaries as of the end of such
fiscal year and the related income statement, statement of stockholders equity and statement of
cash flows for such fiscal year prepared in accordance with generally accepted accounting
principles, consistently applied and as reviewed by (and together with the report of their review
of) the Company’s auditors who shall be selected from among the nationally recognized accounting
firms.



     (c) Within 30 days before the end of each fiscal year, the Board shall attempt to approve an
Annual Budget for the succeeding year. On or prior to October 31 of each fiscal year, the
President of the Company shall prepare and submit to the members of the Board a proposed Annual
Budget for the next fiscal year. It is contemplated that the budget shall, as a separate line
item, specify (without limitation) (i) each category of the general and administrative expenses of
the Company, (ii) the compensation for each key employee of the Company, and (iii) the capital
expenditures for the Company. As soon as practicable after any proposed Annual Budget is submitted
to the Board, the Board shall approve or disapprove such Annual Budget. If the proposed Annual
Budget is approved by the Board, then such proposed Annual Budget shall constitute the Company’s
approved Annual Budget, subject to amendment from time to time. If the budget is not so approved,
the members of the Board shall use their best efforts to resolve any questions with respect to
revisions to the proposed Annual Budget. In the event that the Board is unable to reach an
agreement with respect to an Annual Budget for a fiscal year prior to the commencement thereof, the
Company shall continue to manage, maintain, supervise and direct its business in accordance with



10









 







the most recently approved budget until a new Annual Budget is approved by the Board.


     (d) Within 10 days after the occurrence of any material event, the Management Owners shall
furnish notice of such event to the Owners together with a summary describing the nature of the
event and its known or anticipated impact on the Company and its Subsidiaries.



     (e) The Company shall furnish such other information to the Owners as such Owners or their
advisors may reasonably request concerning the financial condition of the Company.



     Section 8. Termination. This Agreement shall terminate upon the termination of
Section 1, Section 2 and Section 6.



     Section 9. Miscellaneous.



     (a) Benefit. This Agreement will only bind and inure to the benefit of, and will only
be enforceable by and against, the Owners and their permitted successors and assigns and the
Company.



     (b) Notices. Whenever in this Agreement, notice is required to be given it shall be
given in writing, and if such notice is given by registered mail it shall be deemed to have been
received on the second business day after the date such notice is posted. All notices hereunder to
the Company shall be mailed to it at the address of its principal place of business and all notices
to the Owners shall be mailed to them at their last known address as shown on the books and records
of the Company. Any party may change its or his or her mailing address by giving written notice of
such change to all other parties.



     (c) Governing Law. This Agreement and the rights and duties of the parties hereto
shall be governed by and construed in accordance with the laws of the State of Delaware.



     (d) Number. Words in the singular shall be construed to include the plural and vice
versa, unless the context otherwise requires.



     (e) Headings. The headings appearing in this Agreement are inserted only for
convenience of reference and in no way shall be construed to define, limit or describe the scope or
intent of any provision of this Agreement.



     (f) Joinder. The spouses, if any, of each Management Owner join in the execution and
delivery of this Agreement for the express purpose of binding her community property interests, if
any, in the Owner Shares.



     (g) Severability. Every provision in this Agreement is intended to be severable. In
the event that any provision in this Agreement shall be held invalid, the same shall not affect in
any respect whatsoever the validity of the remaining provisions of this Agreement; provided,
however, that if any such provision may be made enforceable by limitation thereof, then such
provision shall
be deemed to be so limited and shall be enforceable to the maximum extent permitted by
applicable law.



11









 





     (h) Certain Expenses of Yorktown. The Company from time to time shall pay directly or
shall reimburse Yorktown for all of their reasonable fees and expenses for outside legal counsel in
connection with (a) the negotiation, preparation and execution of this Agreement and the other
documents in connection with the formation of the Company, (b) Yorktown’s consideration of any
waiver of its rights under this Agreement or any proposed amendment, modification or supplement to
this Agreement, and (c) its consideration of any transaction with respect to the Company.



     (i) Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original and all of which shall constitute but one and the same
instrument.



     (j) Entirety and Modification. This Agreement constitutes the entire agreement of the
parties hereto with respect to the subject matter hereof and may not be modified, supplemented or
amended in any respect except by written instrument executed by all parties hereto.



[Signature Pages Follow.]




12









 





     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year
first above written.



	 	 	 	 	 
	 	Armstrong Energy, Inc.

 	 
	 	By:  	/s/ J. Hord Armstrong	 
	 	 	J. Hord Armstrong, III, Chairman and CEO 	 
	 	 	 	 
	 	/s/ J. Hord Armstrong	 
	 	J. Hord Armstrong, III 	 
	 	 	 	 
	 	/s/ Martin D. Wilson	 
	 	Martin D. Wilson 	 
	 	 	 	 
	 	Yorktown Energy Partners VI, L.P.

 	 
	 	By:  	Yorktown VI Company LP, its general partner
 	 
	 	 	 	 
	 	By:  	 Yorktown VI Associates LLC, its general partner
 	 
	 	 	 	 
	 	By:  	/s/ Bryan H. Lawrence	 
	 	Name: 	Bryan H. Lawrence	 
	 	Title: 	Member	 



[Signature Page to Voting and Stockholders’ Agreement]





 









 





	 	 	 	 	 
	 	Yorktown Energy Partners VII, L.P.

 	 
	 	By:  	Yorktown VII Company LP, its general partner
 	 
	 	 	 	 
	 	By:  	 Yorktown VII Associates LLC, its general partner
 	 
	 	 	 	 
	 	By:  	/s/ Bryan H. Lawrence	 
	 	Name: 	Bryan H. Lawrence	 
	 	Title: 	Member	 
	 
	 	Yorktown Energy Partners VIII, L.P.

 	 
	 	By:  	Yorktown VIII Company LP, its general partner
 	 
	 	 	 
	 	By:  	 Yorktown VIII Associates LLC, its general partner
 	 
	 	 	 	 
	 	By:  	/s/ Bryan H. Lawrence	 
	 	Name: 	Bryan H. Lawrence	 
	 	Title: 	Member	 
	 	 	 
	 	/s/ James H. Brandi	 
	 	James H. Brandi 	 
	 	 	 	 
	 	LucyB Trust (February 26, 2007)

 	 
	 	By: 	/s/ Linda B. Brandi	 
	 	 	Linda B. Brandi, Trustee 	 
	 	 	 	 
	 	Lorenzo Weisman/Danielle Weisman Joint

Ownership With Right Of Survivorship

 	 
	 	By: 	/s/ Lorenzo Weisman	 
	 	 	Lorenzo Weisman 	 
	 	 	 	 
	 	By: 	/s/ Danielle Weisman	 
	 	 	Danielle Weisman 	 



[Signature Page to Voting and Stockholders’ Agreement]




 









 




	 	 	 	 	 
	 	Brim Family 2004 Trust

 	 
	 	By: 	/s/ Debra Patterson	 
	 	Name: 	Debra Patterson	 
	 	Title: 	Vice President	 
	 	 	 
	 	/s/ Franklin W. Hobbs IV	 
	 	Franklin W. Hobbs IV 	 
	 	 	 	 
	 	Hutchinson Brothers, LLC

 	 
	 	 	 
	 	By: Hutchinson Brothers, LLC	 
	 
	 	 
	 	By: 	/s/ Steven N. Hutchinson	 
	 	Name: 	Steven N. Hutchinson	 
	 	Title: 	Manager	 
	 	 	 
	 	/s/ John H. Stites, III	 
	 	John H. Stites, III 	 



[Signature Page to Voting and Stockholders’ Agreement]