$250,000,000
NorthWestern Corporation
6.34% First Mortgage Bonds due
2019
PURCHASE
AGREEMENT
BANC OF AMERICA SECURITIES
LLC
J.P. MORGAN SECURITIES
INC.,
As Representatives of the Several
Purchasers,
c/o J.P. Morgan
Securities Inc.
270 Park Avenue
New York, New York 10017
Dear Sirs:
1. Introductory.
NorthWestern Corporation, a
Delaware corporation (the “ Company ”),
proposes, subject to the terms and conditions stated herein, to
issue and sell to the several initial purchasers named in Schedule
A hereto (the “ Purchasers ”) U.S. $250,000,000
principal amount of its 6.34% First Mortgage Bonds due 2019
(“ Offered Securities ”). The United States
Securities Act of 1933, as amended, is herein referred to as the
“ Securities Act ”.
The Offered Securities are to be
issued under the Mortgage and Deed of Trust, dated as of October 1,
1945, of the Company (as successor to NorthWestern Energy, L.L.C.,
in turn successor to The Montana Power Company) to The Bank of New
York Mellon (formerly The Bank of New York) (as successor to
Guaranty Trust Company of New York), as corporate trustee (the
“ Trustee ”), and Ming Ryan (as indirect
successor to Arthur E. Burke), as individual trustee, as amended
and supplemented by various instruments including the supplemental
indenture, to be dated as of the Closing Date (as defined herein)
(the “ Supplemental Indenture ”), establishing
the terms of the Offered Securities, such Mortgage and Deed of
Trust, as so amended and supplemented, being hereinafter called the
“ Mortgage ”.
The holders of the Offered
Securities will be entitled to the benefits of a Registration
Rights Agreement, to be dated as of the Closing Date, among the
Company and the Purchasers (the “ Registration Rights
Agreement ”), pursuant to which the Company will agree to
file a registration statement with the Securities and Exchange
Commission (the “ Commission ”) registering an
exchange offer or the resale of the Offered Securities under the
Securities Act.
The Company hereby agrees with the
several Purchasers as follows:
2. Representations and Warranties
of the Company. The
Company represents and warrants to, and agrees with, the several
Purchasers that:
(a)
A preliminary offering circular (the
“ Preliminary Offering Circular ”) dated March
23, 2009 relating to the Offered Securities and a final offering
circular (the “ Final Offering Circular ”)
disclosing the offering price and other terms of the Offered
Securities, dated as of the date of this Agreement (even if
finalized and issued subsequent to the date of this Agreement) have
been or will be prepared by the Company. “ General
Disclosure Package ” means the Preliminary Offering
Circular, together with any Issuer Free Writing Communication (as
hereinafter defined) existing at the Applicable Time (as
hereinafter defined) and the other information which is intended
for general distribution to prospective investors, as evidenced by
it being specified in Schedule C to this Agreement (including the
term sheet listing the final terms of the Offered Securities and
their offering, included in Schedule D to this Agreement, which is
referred to as the “ Terms Communication ”).
“ Applicable Time ” means 1:30 pm (New York City
time) on the date of this Agreement or such other time as may be
agreed upon by the parties hereto. As of the date of this Agreement
and at all times subsequent thereto up to the Closing Date, the
Final Offering Circular does not and will not include any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. At
the Applicable Time and at all times subsequent thereto up to the
Closing Date, neither (i) the General Disclosure Package, nor (ii)
any individual Supplemental Marketing Material (as hereinafter
defined), when considered together with the General Disclosure
Package, included or will include any untrue statement of a
material fact or omitted or will omit to state any material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. The
preceding two sentences do not apply to statements in or omissions
from the Preliminary or Final Offering Circular, the General
Disclosure Package or any Supplemental Marketing Material based
upon written information furnished to the Company by any Purchaser
through Banc of America Securities LLC or J.P. Morgan Securities
Inc. (collectively, the “ Representatives ”)
specifically for use therein, it being understood and agreed that
the only such information is that described as such in Section 8(b)
hereof. On the date of this Agreement, the Company’s Annual
Report on Form 10-K most recently filed with the Commission and all
subsequent reports (collectively, the “ Exchange Act
Reports ”) which have been filed by the Company with the
Commission or sent to holders pursuant to the Securities Exchange
Act of 1934, as amended (the “ Exchange Act ”)
do not include any untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading. Such documents, when they were filed with the
Commission, conformed in all material respects to the requirements
of the Exchange Act and the rules and regulations of the Commission
thereunder. All references herein to the Preliminary Offering
Circular, General Disclosure Package and Final Offering Circular
shall be deemed to mean and include the Exchange Act Reports filed
prior to the Applicable Time and incorporated by reference in the
Preliminary Offering Circular, General Disclosure Package or Final
Offering Circular (as the case may be), and all references herein
to the terms “amend,” “amendment,” or
“supplement” with respect to the Final Offering
Circular shall be deemed to mean and include all information filed
under the Exchange Act after the Applicable Time and incorporated
by reference in the Final Offering Circular.
“ Free Writing
Communication ” means a written communication (as such
term is defined in Rule 405 under the Securities Act) that
constitutes an offer to sell or a solicitation of an offer to buy
the Offered Securities and is made by means other than the
Preliminary Offering Circular or the Final Offering Circular.
“ Issuer Free Writing Communication ” means a
Free Writing Communication prepared by or on behalf of the Company,
used or referred to by the Company or containing a description of
the final terms of the Offered Securities or of their offering,
including the Terms Communication, in the form retained in the
Company’s records and included in Schedule C to this
Agreement. “ Supplemental Marketing Material ”
means any Issuer Free Writing Communication other than any Issuer
Free Writing Communication specified in Schedule C to this
Agreement.
(b)
The Company has been duly
incorporated and is an existing corporation in good standing under
the laws of the State of Delaware, with power and authority
(corporate and other) to own its properties and conduct its
business as described in the General Disclosure Package and the
Final Offering Circular; and the Company is duly qualified to do
business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except where
the failure so to qualify or to be in good standing would not,
individually or in the aggregate, result in a material adverse
effect on the condition (financial or other), business, properties
or results of operations of the Company and its subsidiaries taken
as a whole (“ Material Adverse Effect
”).
(c)
The Company has no
“significant subsidiaries” (as such term is defined in
Rule 1-02 of Regulation S-X).
(d)
The Mortgage has been duly
authorized by the Company and, when the Supplemental Indenture has
been duly executed and delivered by the Company and assuming the
due authorization, execution and delivery of the Supplemental
Indenture by the Trustee, will constitute a valid and binding
agreement of the Company, enforceable against the Company in
accordance with its terms, except to the extent that enforcement of
the lien thereof may be limited by the effect of certain laws of
the jurisdictions in
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which the physical properties
covered thereby are located upon the remedies provided in the
Mortgage, which limitations, however, do not make the remedies
afforded inadequate for the realization of the benefits of the
security provided by the Mortgage, and except as enforceability of
such lien may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of
creditors’ rights, and except that the availability of the
remedy of specific performance or injunctive relief is subject to
the discretion of the court before which any proceeding thereof may
be brought).
(e)
The Offered Securities have been
duly authorized by the Company and, when delivered and paid for
pursuant to this Agreement on the Closing Date, will be duly
executed, authenticated, issued and delivered, and will constitute
valid and binding obligations of the Company, entitled to the
benefits of the security provided by the lien of the Mortgage
(except to the extent that enforceability of such lien may be
limited by the effect of certain laws of the jurisdictions in which
the physical properties covered thereby are located upon the
remedies provided in the Mortgage, which limitations, however, do
not make the remedies afforded inadequate for the realization of
the benefits of the security provided by the Mortgage, and except
as enforceability of such lien may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors’ rights, and except
that the availability of the remedy of specific performance or
injunctive relief is subject to the discretion of the court before
which any proceeding thereof may be brought).
(f)
The Mortgage (excluding the
Supplemental Indenture) constitutes, and the Mortgage, when the
Supplemental Indenture shall have been duly filed for recording and
recorded, will constitute, a valid and enforceable first mortgage
lien for the equal and proportionate security of the first mortgage
bonds issued or to be issued thereunder, upon substantially all of
the physical properties and franchises of the Company which are
specifically described therein as subject to the lien thereof and
which are used or useful in the conduct of the Company’s
utility business in Montana and Wyoming, free from all prior liens,
charges or encumbrances (other than Excepted Encumbrances (as
defined in the Mortgage); and other than, in the case of property
acquired after the date of the original execution and delivery of
the Mortgage, vendors’ liens, purchase money mortgages and
any other liens thereon at the time of acquisition thereof) (except
to the extent that enforceability of such lien may be limited by
the effect of certain laws of the jurisdictions in which the
physical properties covered thereby are located upon the remedies
provided in the Mortgage, which limitations, however, do not make
the remedies afforded inadequate for the realization of the
benefits of the security provided by the Mortgage, and except as
enforceability of such lien may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors’ rights, and except
that the availability of the remedy of specific performance or
injunctive relief is subject to the discretion of the court before
which any proceeding therefor may be brought); and the
after-acquired property clause in the Mortgage subjects to the lien
thereof all after-acquired utility property of the Company’s
utility business in Montana and Wyoming as provided therein (except
such thereof as is expressly excepted from the lien of the
Mortgage). For the avoidance of doubt, due to the release of the
Company’s ownership interest in the Colstrip Unit 4
coal-fired generating plant from the lien of the Mortgage in 1985,
such interest is not, and has not been since such time, subject to
the lien of the Mortgage.
(g)
The Mortgage (excluding the
Supplemental Indenture and including any necessary related
financing statements) has been filed and recorded wherever and to
the extent necessary to perfect the lien thereof upon the
properties now owned by the Company and intended to be subject
thereto; all fees or taxes in connection therewith have been paid
and no other filing or recordation is presently necessary in order
to perfect the lien of the Mortgage on such properties.
(h)
No filing or recording of the
Supplemental Indenture is necessary to perfect the lien of the
Mortgage upon the properties now owned by the Company and intended
to be subject thereto or to extend such lien for the benefit of the
Offered Securities to be issued thereunder; no re-recording or
refiling of the Mortgage or any other instruments or documents
(except for periodic filings which extend the effectiveness of
financing statements) is required to preserve and protect the lien
of the Mortgage; and under the present laws of the states in which
the property intended to be subject to the lien of the Mortgage is
located, no further supplemental indentures or other instruments or
documents are required to be executed, filed and/or recorded to
extend the lien of the Mortgage to after-acquired property;
however, the Company is required by the terms of the Mortgage to
promptly record and file the Supplemental Indenture.
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(i)
The Company has good and marketable
title to all properties owned by it which are subject to the
Mortgage, subject only (a) to the lien of the Mortgage, (b) to
Excepted Encumbrances and (c) to minor exceptions and defects which
do not, in the aggregate, materially interfere with the use by the
Company of such properties for the purposes for which they are
held, materially detract from the value of said properties or in
any material way impair the security afforded by the Mortgage; and
such properties constitute and comprise substantially all of the
utility properties directly owned by the Company in the States of
Montana and Wyoming.
(j)
The descriptions of the Offered
Securities, the Mortgage and the Registration Rights Agreement in
the General Disclosure Package and the Final Offering Circular are
accurate in all material respects.
(k)
Except as disclosed in the General
Disclosure Package and the Final Offering Circular, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or
any Purchaser for a brokerage commission, finder’s fee or
other like payment.
(l)
No consent, approval, authorization,
or order of, or filing with, any governmental agency or body or any
court is required for the consummation of the transactions
contemplated by this Agreement, the Registration Rights Agreement
or the Mortgage in connection with the issuance and sale of the
Offered Securities by the Company except for filings with or the
orders of (i) the Commission declaring the Exchange Offer
Registration Statement or, if required, the Shelf Registration
Statement (each as defined in the Registration Rights Agreement)
effective, (ii) the Montana Public Service Commission
(“MPSC”), (iii) the Federal Energy Regulatory
Commission (“FERC”), or as may otherwise be required
under state securities laws or as have already been
obtained.
(m)
The execution, delivery (or
assumption) and performance of this Agreement, the Mortgage and the
Registration Rights Agreement and the issuance and sale of the
Offered Securities and compliance with the terms and provisions
thereof will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under, (i) any
statute, any rule, regulation or order of any governmental agency
or body or any court, domestic or foreign, having jurisdiction over
the Company or any subsidiary of the Company or any of their
properties, or (ii) any agreement or instrument to which the
Company or any such subsidiary is a party or by which the Company
or any such subsidiary is bound or to which any of the properties
of the Company or any such subsidiary is subject, or (iii) the
charter or by-laws of the Company or any such subsidiary, except,
in the case of (i) and (ii) above, for breaches or violations that
would not, individually or in the aggregate, have a Material
Adverse Effect, and the Company has full power and authority to
authorize, issue and sell the Offered Securities as contemplated by
this Agreement.
(n)
The Company has all the requisite
corporate power and authority to execute, deliver and perform its
obligations under this Agreement and the transactions contemplated
hereby. This Agreement has been duly authorized, executed and
delivered by the Company.
(o)
On the date hereof, the authorized,
issued and outstanding capital stock of the Company is as set forth
in the General Disclosure Package and the Final Offering Circular
in the column entitled “Actual” under the caption
“Capitalization” (except for subsequent issuances, if
any, pursuant to reservations, agreements or employee benefit plans
referred to in the General Disclosure Package and the Final
Offering Circular). The shares of issued and outstanding capital
stock of the Company on the date hereof and on the Closing Date
have been, and will be, duly authorized and validly issued and are,
and will be, fully paid and non-assessable; none of the outstanding
shares of capital stock of the Company on the date hereof and on
the Closing Date was, or will have been, issued in violation of the
preemptive or other similar rights of any securityholder of the
Company.
(p)
The Company and its subsidiaries
possess adequate certificates, licenses, approvals, franchises,
authorizations or permits (collectively, “ Governmental
Licenses ”) issued by the appropriate federal, state,
local or foreign regulatory agencies or bodies necessary to conduct
the business now operated
4
by them, except where the failure to
have such Governmental Licenses would not, individually or in the
aggregate, have a Material Adverse Effect; and have not received
any notice of proceedings relating to the revocation or
modification of any such Governmental Licenses that, if determined
adversely to the Company or any of its subsidiaries, would
individually or in the aggregate result in a Material Adverse
Effect.
(q)
Except as disclosed in the General
Disclosure Package and the Final Offering Circular, no labor
dispute with the employees of the Company or any subsidiary exists
or, to the knowledge of the Company, is imminent that would have a
Material Adverse Effect.
(r)
The Company and its subsidiaries
own, possess or can acquire on reasonable terms, adequate
trademarks, trade names and other rights to inventions, know-how,
patents, copyrights, confidential information and other
intellectual property (collectively, “ intellectual
property rights ”) necessary to conduct the business now
operated by them, or presently employed by them except in cases in
which the failure to own or possess such intellectual property
rights would not, individually or in the aggregate, have a Material
Adverse Effect, and have not received any notice of infringement of
or conflict with asserted rights of others with respect to any
intellectual property rights that, if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect.
(s)
Except as disclosed in the General
Disclosure Package and the Final Offering Circular or would not,
singly or in the aggregate, result in a Material Adverse Effect,
(A) neither the Company nor any of its subsidiaries is in violation
of any federal, state, local or foreign statute, any rule,
regulation, decision or order of any governmental agency or body or
any court, domestic or foreign, relating to the use, disposal or
release of hazardous or toxic substances or relating to the
protection or restoration of the environment or human exposure to
hazardous or toxic substances (collectively, “
environmental laws ”); and (B) to the knowledge of the
Company there are no pending or threatened administrative,
regulatory or judicial actions, suits, demands, demand letters,
claims, liens, notices of noncompliance or violation, investigation
or proceedings relating to any environmental laws against the
Company or any of its subsidiaries.
(t)
Except as disclosed in the General
Disclosure Package and the Final Offering Circular, there are no
pending actions, suits or proceedings against or affecting the
Company, any of its subsidiaries or any of their respective
properties that, if determined adversely to the Company or any of
its subsidiaries, would individually or in the aggregate have a
Material Adverse Effect, or would materially and adversely affect
the ability of the Company to perform its obligations under the
Mortgage, this Agreement or the Registration Rights Agreement, to
issue and deliver the Offered Securities; and to the knowledge of
the Company no such actions, suits or proceedings have been
threatened.
(u)
The FERC has issued an appropriate
order or orders with respect to the issuance and sale of the
Offered Securities in accordance with this Agreement (the “
FERC Order ”); the FERC Order is in full force and
effect and the issuance of the Offered Securities pursuant to this
Agreement is in conformity with the terms of the FERC
Order.
(v)
The MPSC has issued an appropriate
order or orders with respect to the issuance and delivery of the
Offered Securities in accordance with this Agreement and the
Mortgage (the “ MPSC Order ”); the MPSC Order is
in full force and effect and the issuance and delivery of the
Offered Securities pursuant to this Agreement is in conformity with
the terms of the MPSC Order.
(w)
Deloitte & Touche LLP, who
audited the financial statements of the Company incorporated by
reference in the General Disclosure Package and the Final Offering
Circular, is an independent registered public accounting firm with
respect to the Company within the meaning of the Securities Act and
the applicable published rules and regulations thereunder (“
Rules and Regulations ”)
(x)
The financial statements
incorporated by reference in the General Disclosure Package and the
Final Offering Circular present fairly in all material respects the
financial position of the Company and its consolidated subsidiaries
as of the dates shown and their results of operations and cash
flows for the periods shown, and, except as otherwise disclosed in
the General Disclosure Package and the Final Offering Circular,
such financial statements have been prepared in conformity with the
generally accepted accounting principles
5
in the United States applied on a
consistent basis (except that the unaudited financial statements
may be subject to normal year-end adjustments) throughout the
periods involved; and the assumptions used in preparing the pro
forma financial statements included in the General Disclosure
Package and the Final Offering Circular, if any, provide a
reasonable basis for presenting the significant effects directly
attributable to the transactions or events described therein, the
related pro forma adjustments give appropriate effect to those
assumptions and the pro forma columns therein reflect the proper
application of those adjustments to the corresponding historical
financial statement amounts.
(y)
Since the date of the latest audited
financial statements incorporated by reference in the General
Disclosure Package and the Final Offering Circular, except as
disclosed in the General Disclosure Package and the Final Offering
Circular, there has been no material adverse change, nor any
development or event involving a prospective material adverse
change, in the condition (financial or other), business, properties
or results of operations of the Company and its subsidiaries taken
as a whole, and, except as disclosed in or contemplated by the
General Disclosure Package and the Final Offering Circular, there
has been no dividend or distribution of any kind declared, paid or
made by the Company on any class of its capital stock.
(z)
The Company is subject to the
reporting requirements of either Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 and files reports with the
Commission on the Electronic Data Gathering, Analysis, and
Retrieval (EDGAR) system.
(aa)
The Company is not an open-end
investment company, unit investment trust or face-amount
certificate company that is or is required to be registered under
Section 8 of the United States Investment Company Act of 1940,
as amended (the “ Investment Company Act ”); and
the Company is not and, after giving effect to the offering and
sale of the Offered Securities and the application of the proceeds
therefrom as described in the General Disclosure Package and the
Final Offering Circular, will not be required to be so registered
under the Investment Company Act.
(bb)
No securities of the same class
(within the meaning of Rule 144A(d)(3) under the Securities
Act) as the Offered Securities are listed on any national
securities exchange registered under Section 6 of the Exchange Act
or quoted in a U.S. automated inter-dealer quotation
system.
(cc)
Subject to the accuracy of the
representations and warranties and the due performance of the
agreements of the Purchasers in Section 4 of this Agreement
(including, without limitation, the transfer restrictions referred
to therein), the offer, sale and delivery of the Offered Securities
to the Purchasers in the manner contemplated by this Agreement and
the General Disclosure Package and the Final Offering Circular and
the initial resale of the Offered Securities by the Purchasers in
the manner contemplated in the Offering Document and this
Agreement, do not require registration under the Securities Act,
and the Supplemental Indenture does not require qualification under
the United States Trust Indenture Act of 1939, as amended (the
“ Trust Indenture Act ”).
(dd)
Neither the Company, nor any of its
affiliates, nor any person acting on its or their behalf
(i) has, within the six-month period prior to the date hereof,
offered or sold in the United States or to any U.S. person (as such
terms are defined in Regulation S under the Securities Act)
the Offered Securities or any security of the same class or series
as the Offered Securities or (ii) has offered or will offer or
sell the Offered Securities (A) in the United States by means
of any form of general solicitation or general advertising within
the meaning of Rule 502(c) under the Securities Act or (B) with
respect to any such securities sold in reliance on Rule 903 of
Regulation S (“ Regulation S ”) under the
Securities Act, by means of any directed selling efforts within the
meaning of Rule 902(c) of Regulation S. The Company, its affiliates
and any person acting on its or their behalf have complied and will
comply with the offering restrictions requirement of Regulation S
in connection with the offering of the Offered Securities outside
the United States. The Company has not entered and will not enter
into any contractual arrangement with respect to the distribution
of the Offered Securities except for this Agreement.
(ee)
The entities listed on Schedule B
hereto are the only subsidiaries (within the meaning of Rule 405
under the Securities Act), direct or indirect, of the
Company.
6
(ff)
The Exchange Securities (as defined
in the Registration Rights Agreement) have been duly authorized by
the Company, and when executed, authenticated, issued and delivered
in the manner provided for in the Mortgage and the Registration
Rights Agreement, the Exchange Securities will constitute valid and
binding obligations of the Company entitled to the benefits of the
Mortgage (except to the extent that enforceability of such lien may
be limited by the effect of certain laws of the jurisdictions in
which the physical properties covered thereby are located upon the
remedies provided in the Mortgage, which limitations, however, do
not make the remedies afforded inadequate for the realization of
the benefits of the security provided by the Mortgage, and except
as enforceability of such lien may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors’ rights, and except
that the availability of the remedy of specific performance or
injunctive relief is subject to the discretion of the court before
which any proceeding thereof may be brought).
(gg)
The Registration Rights Agreement
has been duly authorized by the Company and when the Registration
Rights Agreement has been duly executed and delivered by the
Company (assuming the due authorization, execution and delivery by
the Purchasers), the Registration Rights Agreement will be a valid
and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except as enforcement thereof
may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of
creditors’ rights generally and except as enforcement thereof
is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law) or
an implied covenant of good faith and fair dealing, and except that
rights to indemnification thereunder may be limited by federal or
state securities laws or public policy thereto.
(hh)
Neither the Company nor any of its
subsidiaries is in violation of its respective charter or by-laws
or other governance documents or in default in the performance of
any obligation, agreement, covenant or condition contained in any
indenture, loan agreement, mortgage, lease or other agreement or
instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries or their
respective property is bound, which, individually or in the
aggregate, would have a Material Adverse Effect.
(ii)
There are no contracts or agreements
between the Company and any person granting such person the right
to require the Company to file a registration statement under the
Securities Act with respect to any securities of the Company or to
require the Company to include such securities with the Exchange
Securities registered pursuant to any Exchange Offer Registration
Statement.
(jj)
Neither the Company nor any of its
subsidiaries nor any agent thereof acting on the behalf of them has
taken, and none of them will take, any action that might cause this
Agreement or the issuance or sale of the Offered Securities to
violate Regulation T, Regulation U or Regulation X of the Board of
Governors of the Federal Reserve System.
(kk)
No “nationally recognized
statistical rating organization” as such term is defined for
purposes of Rule 436(g)(2) under the Securities Act (i) has imposed
(or has informed the Company that it is considering imposing) any
condition (financial or otherwise) on the Company in order for the
Company to maintain a rating of at least as high as any rating of
the Offered Securities assigned to the Company as of the date
hereof, or (ii) has indicated to the Company that it is considering
(a) the downgrading, suspension, or withdrawal of, or any review
for a possible downgrading in any rating so assigned or (b) any
negative change in the outlook for any rating of the Offered
Securities.
(ll)
The sale of the Offered Securities
pursuant to Regulation S is not part of a plan or scheme to evade
the registration provisions of the Securities Act.
(mm)
The Company maintains and will
maintain “disclosure controls and procedures” (as
defined in Rules 13a-15 and 15d-15(e) of the Exchange Act)
reasonably designed to ensure that information required to be
disclosed by the Company in the reports that it files or submits
under the Exchange Act is recorded, processed, summarized and
reported in accordance with the Exchange Act and the rules and
regulations
7
thereunder. The Company has carried
out and will carry out evaluations, under the supervision and with
the participation of the Company’s principal executive and
principal financial officers, of the effectiveness of the
Company’s disclosure controls and procedures in accordance
with Rule 13a-15 of the Exchange Act.
Any certificate signed by any
officer of the Company or any of its subsidiaries delivered to the
Purchasers or to counsel for the Purchasers in connection with this
Agreement shall be deemed a representation and warranty by the
Company, to the Purchasers as to the matters covered
thereby.
3. Purchase, Sale and Delivery of
Offered Securities. On
the basis of the representations, warranties and agreements herein
contained, but subject to the terms and conditions herein set
forth, the Company agrees to sell to each Purchaser, and each
Purchaser agrees, severally and not jointly, to purchase from the
Company, the principal amount of Offered Securities set forth in
Schedule A to this Agreement opposite the name of such Purchaser at
the price set forth in Schedule A to this Agreement.
The Company will deliver against
payment of the purchase price the Offered Securities in the form of
one or more permanent global securities in definitive form (the
“ Global Securities ”) deposited with the
Trustee as custodian for The Depository Trust Company (“
DTC ”) and registered in the name of Cede & Co.,
as nominee for DTC. Interests in any permanent Global Securities
will be held only in book-entry form through DTC, except in the
limited circumstances described in the General Disclosure Package
and the Final Offering Circular. Payment for the Offered Securities
shall be made by the Purchasers in Federal (same day) funds by
official check or checks or wire transfer to an account at a bank
acceptable to the Representatives drawn to the order of the Company
at the office of Dewey & LeBoeuf LLP at 1301 Avenue of the
Americas, New York, New York at 10:00 A.M. (New York time), on
March 26, 2009, or at such other time not later than seven full
business days thereafter as the Representatives and the Company
determine, such time being herein referred to as the “
Closing Date ”, against delivery to the Trustee as
custodian for DTC of the Global Securities representing all of the
Securities. The Global Securities will be made available for
checking at the above office of Dewey & LeBoeuf LLP, at least
24 hours prior to the Closing Date.
4. Representations by Purchasers;
Resale by Purchasers. (a) Each Purchaser
severally represents and warrants to the Company that it is an
“accredited investor” within the meaning of
Regulation D under the Securities Act.
(b) Each Purchaser severally
acknowledges that the Offered Securities have not been registered
under the Securities Act and may not be offered or sold within the
United States or to, or for the account or benefit of, U.S. persons
except in accordance with Regulation S or pursuant to an exemption
from the registration requirements of the Securities Act. Each
Purchaser severally represents and agrees that it has offered and
sold the Offered Securities, and will offer and sell the Offered
Securities only in accordance with Rule 903 or Rule 144A under the
Securities Act (“ Rule 144A ”). Accordingly,
neither such Purchaser nor its affiliates, nor any persons acting
on its or their behalf, have engaged or will engage in any directed
selling efforts with respect to the Offered Securities, and such
Purchaser, its affiliates and all persons acting on its or their
behalf have complied and will comply with the offering restrictions
requirement of Regulation S and Rule 144A.
(c) Each Purchaser severally agrees
that it and each of its affiliates has not entered and will not
enter into any contractual arrangement with respect to the
distribution of the Offered Securities except for any such
arrangements with the other Purchasers or affiliates of the other
Purchasers or with the prior written consent of the
Company.
(d) Each Purchaser severally agrees
that it and each of its affiliates will not offer or sell the
Offered Securities in the United States by means of any form of
general solicitation or general advertising within the meaning of
Rule 502(c) under the Securities Act, including, but not limited to
(i) any advertisement, article, notice or other communication
published in any newspaper, magazine or similar media or broadcast
over television or radio, or (ii) any seminar or meeting whose
attendees have been invited by any general solicitation or general
advertising. Each Purchaser severally agrees, with respect to
resales made in reliance on Rule 144A of any of the Offered
Securities, to deliver either with the confirmation of such resale
or otherwise prior to settlement of such resale a notice to the
effect that the resale of such Offered Securities has been
made
8
in reliance upon the exemption from
the registration requirements of the Securities Act provided by
Rule 144A.
(e) Each of the Purchasers severally
represents and agrees that:
(i) (A)
it has not offered or sold and prior to the expiry of a period of
six months from the Closing Date, will not offer or sell any
Offered Securities to persons in the United Kingdom except to
persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or
agent) for the purposes of their businesses or otherwise in
circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the
Public Offers of Securities Regulations 1995; (B) it has only
communicated or caused to be communicated and will only communicate
or cause to be communicated any invitation or inducement to engage
in investment activity (within the meaning of section 21 of the
Financial Services and Markets Act 2000 (the “ FSMA
”)) received by it in connection with the issue or sale of
any Offered Securities in circumstances in which section 21(1) of
the FSMA does not apply to the Issuer; and (C) it has complied
and will comply with all applicable provisions of the FSMA with
respect to anything done by it in relation to the Offered
Securities in, from or otherwise involving the United Kingdom;
and
(ii) in
relation to each Member State of the European Economic Area that
has implemented the Prospectus Directive (each, a “Relevant
Member State”), with effect from and including the date on
which the Prospectus Directive is implemented in that Relevant
Member State (the “Relevant Implementation Date”), it
has not made and will not make an offer of the Offered Securities
to the public in that Relevant Member State prior to the
publication of a prospectus in relation to the Offered Securities
that has been approved by the competent authority in that Relevant
Member State or, where appropriate, approved in another Relevant
Member State and notified to the competent authority in that
Relevant Member State, all in accordance with the Prospectus
Directive, except that it may, with effect from and including the
Relevant Implementation Date, make an offer of the Offered
Securities to the public in that Relevant Member State at any
time:
(A) to
legal entities that are authorized or regulated to operate in the
financial markets or, if not so authorized or regulated, whose
corporate purpose is solely to invest in securities;
(B) to
any legal entity that has two or more of (1) an average of at least
250 employees during the last financial year, (2) a total balance
sheet of more than €43,000,000 and (3) an annual net turnover
of more than €50,000,000, as shown in its last annual or
consolidated accounts;
(C) to
fewer than 100 natural or legal persons (other than qualified
investors as defined in the Prospectus Directive) subject to
obtaining the prior consent of the Representatives for any such
offer; or
(D) in
any other circumstances falling within Article 3(2) of the
Prospectus Directive;
provided that no such offer of the
Offered Securities shall result in a requirement by the Company or
any Initial Purchaser of a prospectus pursuant to Article 3 of the
Prospectus Directive.
For the purposes of this
representation, the expression “an offer of Offered
Securities to the public” in any Relevant Member State means
the communication in any form and by any means of sufficient
information on the terms of the offer and the Offered Securities to
be offered so as to enable an investor to decide to purchase or
subscribe the Offered Securities, as the same may be varied in that
Relevant Member State by any measure implementing the Prospectus
Directive in that Relevant Member State and the expression
“Prospectus Directive” means Directive 2003/71/EC and
includes any relevant implementing measure in each Relevant Member
State.
9
5. Certain Agreements of the
Company. The Company agrees with the several Purchasers
that:
(a) The Company will advise the
Representatives promptly of any proposal to amend or supplement the
Preliminary or Final Offering Circular and will not effect such
amendment or supplementation without the Representatives’
consent, which consent shall not be unreasonably withheld or
delayed. If, at any time prior to the completion of the initial
resale of the Offered Securities by the Purchasers, there occurs an
event or development as a result of which any document included in
the Preliminary or Final Offering Circular, the General Disclosure
Package or any Supplemental Marketing Material included or would
include an untrue statement of a material fact or omitted or would
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances prevailing at
such time, not misleading, the Company promptly will notify the
Representatives of such event and promptly will prepare, at its own
expense, an amen
