PEABODY ENERGY
CORPORATION
$675,000,000 4.75% Convertible
Junior Subordinated Debentures
Lehman Brothers
Inc.
Morgan Stanley & Co. Incorporated
Citigroup Global Markets Inc.
as representatives of the
underwriters
named in Schedule II (the
“ Representatives ”)
c/o Morgan
Stanley & Co. Incorporated
1585 Broadway
New York, New York, 10036
Lehman Brothers
Inc.
745 Seventh Avenue
New York, NY 10019
Peabody Energy
Corporation, a Delaware corporation (the “ Company
”) , proposes to issue and sell to the
underwriters named in Schedule II hereto (the “
Underwriters ”) $675,000,000 aggregate principal
amount of its 4.75% Convertible Junior Subordinated Debentures due
2066 (the “ Firm Debentures ”) pursuant to the
terms of a subordinated indenture, to be dated as of
December 20, 2006 (the “ Base Indenture ”)
, between the Company and U.S. Bank National
Association, as trustee (the “ Trustee ”), as
supplemented by a supplemental indenture, to be dated as of
December 20, 2006 (the “ Supplemental Indenture
” and, together with the Base Indenture, the “
Indenture ”), between the Company and U.S. Bank
National Association, as Trustee, relating to the Debentures (as
defined below).
In addition, the
Company proposes to grant to the Underwriters hereto an option to
purchase up to an additional $75,000,000 aggregate principal amount
of its 4.75% Convertible Junior Subordinated Debentures due 2066 on
the terms and for the purposes set forth in Section 3 (the
“ Option Debentures ”). The Firm Debentures and
the Option Debentures, if purchased, are hereinafter collectively
called the “Debentures.”
The Debentures are
convertible, subject to certain conditions set forth in the
Indenture, prior to maturity (unless previously redeemed) into cash
or shares (the “ Underlying Securities ”) of
(i) perpetual preferred stock of the Company (the “
Perpetual Preferred Stock ”) and, under certain
circumstances, (ii) common stock, par value $0.01 per share,
of the Company (the “ Common Stock ”) in
accordance with the terms of the Debentures and the Indenture. The
Perpetual Preferred Stock is to be issued pursuant to a Certificate
of Designations (the “Certificate of Designations”) of
Perpetual Preferred Shares of Peabody Energy Corporation. This
Agreement, the Debentures, the Indenture and the Certificate of
Designations are hereinafter referred to collectively as the
“Operative Documents.”
The Company has
filed with the Securities and Exchange Commission (the “
Commission ”) a registration statement, including a
prospectus (File No. 333-136108) on Form S-3, relating to
securities (the “ Shelf Securities ”), including
the Debentures and the Underlying Securities, to be issued from
time to time by the Company. The registration statement as amended
to the date of this Agreement, including the information (if any)
deemed to be part of the registration statement at the time of
effectiveness pursuant to Rule 430A or Rule 430B under
the Securities Act of 1933, as amended (the “ Securities
Act ”), is hereinafter referred to as the “
Registration Statement, ” and the related prospectus
covering the Shelf Securities dated July 28, 2006 in the form
first used to confirm sales of the Debentures (or in the form first
made available to the Underwriters by the Company to meet requests
of purchasers pursuant to Rule 173 under the Securities Act)
is hereinafter referred to as the “ Basic Prospectus
.” The Basic Prospectus, as supplemented by the prospectus
supplement specifically relating to the Debentures in the form
first used to confirm sales of the Debentures (or in the form first
made available to the Underwriters by the Company to meet requests
of purchasers pursuant to Rule 173 under the Securities Act)
is hereinafter referred to as the “ Prospectus
,” and the term “ Preliminary Prospectus ”
means any preliminary form of the Prospectus. For purposes of this
Agreement, “ free writing prospectus ” has the
meaning set forth in Rule 405 under the Securities Act,
“ Time of Sale Prospectus ” means the
Preliminary Prospectus together with the free writing prospectuses,
if any, each identified in Schedule I hereto, and “
broadly available road show ” means a “bona fide
electronic road show” as defined in Rule 433(h)(5) under
the Securities Act that has been made available without restriction
to any person. As used herein, the terms “Registration
Statement,” “Basic Prospectus,”
“Preliminary Prospectus,” “Time of Sale
Prospectus” and “Prospectus” shall include the
documents, if any, incorporated by reference therein. The terms
“ supplement ,” “ amendment
,” and “ amend ” as used herein with
respect to the Registration Statement, the Basic Prospectus, the
Time of Sale Prospectus, any Preliminary Prospectus, the Prospectus
or any free writing prospectus shall include all documents
subsequently filed by the Company with the Commission pursuant to
the Securities Exchange Act of 1934, as amended (the “
Exchange Act ”), that are deemed to be incorporated by
reference therein.
The Company hereby
agrees with the Underwriters as follows:
SECTION 1.
Representations, Warranties and Agreements of the Company .
The Company represents, warrants and agrees that:
(a) The
Registration Statement has (i) been prepared by the Company in
conformity with the requirements of the Securities Act, and the
rules and regulations (the “ Rules and
2
Regulations ”) of the Commission thereunder,
(ii) been filed with the Commission under the Securities Act,
and (iii) become effective under the Securities Act. No stop
order suspending the effectiveness of the Registration Statement is
in effect, and no proceedings for such purpose are pending before
or, to the knowledge of the Company, threatened by the Commission.
The Company is a well-known seasoned issuer (as defined in
Rule 405 under the Securities Act) eligible to use the
Registration Statement as an automatic shelf registration statement
and the Company has not received notice that the Commission objects
to the use of the Registration Statement as an automatic shelf
registration statement.
(b) (i) Each
document, if any, filed or to be filed pursuant to the Exchange Act
and incorporated by reference in the Time of Sale Prospectus or the
Prospectus complied or will comply when so filed in all material
respects with the Exchange Act and the applicable rules and
regulations of the Commission thereunder, (ii) each part of
the Registration Statement, when such part became effective, did
not contain, and each such part, as amended or supplemented, if
applicable, will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading,
(iii) the Registration Statement as of the date hereof does
not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading, (iv) the
Registration Statement and the Prospectus comply, and as amended or
supplemented, if applicable, will comply in all material respects
with the Securities Act and the Rules and Regulations, (v) the
Time of Sale Prospectus does not, and at the time of each sale of
the Debentures in connection with the offering when the Prospectus
is not yet available to prospective purchasers, the Time of Sale
Prospectus, as then amended or supplemented by the Company, if
applicable, will not, contain any untrue statement of a material
fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, (vi) each broadly available
road show, if any, when considered together with the Time of Sale
Prospectus, does not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading and (vii) the Prospectus does
not contain and, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set
forth in this paragraph do not apply to (A) statements or
omissions in the Registration Statement, the Time of Sale
Prospectus or the Prospectus based upon information relating to any
Underwriter furnished to the Company in writing by any Underwriter
expressly for use therein or (B) that part of the Registration
Statement that constitutes the Statement of Eligibility (Form T-1)
under the Trust Indenture Act of 1939, as amended (the “
Trust Indenture Act ”), of the Trustee.
(c) The
Company is not an “ineligible issuer” in connection
with the offering of the Debentures pursuant to Rules 164, 405
and 433 under the Securities Act. Any free writing prospectus that
the Company is required to file pursuant to Rule 433(d) under the
Securities Act has been, or will be, filed with the Commission in
accordance with the requirements of the Securities Act and the
Rules and Regulations. Each free writing prospectus that the
Company has filed, or is required to file, pursuant to Rule 433(d)
under the Securities Act or that was prepared by or on behalf of or
used or referred to by the Company complies or will comply in all
material respects with the requirements of the Securities Act and
the Rules and Regulations.
3
Except for the
free writing prospectuses, if any, identified in Schedule I
hereto, and electronic road shows, if any, furnished to you before
first use, the Company has not prepared, used or referred to, and
will not, without your prior consent, prepare, use or refer to, any
free writing prospectus.
(d) The
Company and each of its subsidiaries (as defined in
Section 15) have been duly incorporated or organized, as the
case may be, and are validly existing as their respective business
entities and in good standing under the laws of their respective
jurisdictions of incorporation or organization, as the case may be,
are duly qualified to do business and are in good standing as
foreign corporations in each jurisdiction in which their respective
ownership or lease of property or the conduct of their respective
businesses requires such qualification, and have all power and
authority necessary to own or hold their respective properties and
to conduct the businesses in which they are engaged, except where
the failure to so qualify or to be in good standing would not
reasonably be expected to have a material adverse effect on the
financial condition, business, properties or results of operations
of the Company and its subsidiaries taken as a whole (a “
Material Adverse Effect ”).
(e) The
Company has an authorized capitalization as set forth in each of
the Time of Sale Prospectus and the Prospectus, and all of the
issued and outstanding shares of capital stock of the Company have
been duly and validly authorized and issued, are fully paid and
non-assessable and conform in all material respects to the
description thereof contained in each of the Time of Sale
Prospectus and the Prospectus; and all of the issued and
outstanding shares of capital stock or membership interests, as the
case may be, of each wholly-owned subsidiary of the Company have
been duly and validly authorized and issued and are fully paid and
non-assessable and (except for directors’ qualifying shares)
are owned directly or indirectly by the Company, free and clear of
all liens, encumbrances, equities or claims, other than liens,
encumbrances, equities or claims described in each of the Time of
Sale Prospectus and the Prospectus, and none of such shares of
capital stock or membership interests, as the case may be, were
issued in violation of preemptive or other similar rights arising
by operation of law, under the charter and by-laws of the Company
or under any agreement to which the Company is a party or
otherwise.
(f) The
Company has all requisite power and authority to execute, deliver
and perform its respective obligations under this Agreement and
each of the other Operative Documents to which it is a party
(including issuing the Underlying Securities upon conversion of the
Debentures).
(g) This
Agreement has been duly authorized, executed and delivered by the
Company.
(h) The
Indenture has been duly authorized by the Company, and when duly
executed by the proper officers of the Company (assuming due
execution and delivery by the Trustee) and delivered by the
Company, will constitute a legal, valid and binding agreement of
the Company enforceable against the Company in accordance with its
terms, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors’ rights and remedies
generally, and subject, as to enforceability, to general principles
of equity, including principles of commercial reasonableness, good
faith and fair
4
dealing
(regardless of whether enforcement is sought in a proceeding at law
or in equity). The Indenture has been duly qualified under the
Trust Indenture Act.
(i) The
Debentures have been duly authorized by the Company and when duly
issued by the Company in accordance with the terms of the Indenture
and, assuming due authentication of the Debentures by the Trustee,
when delivered to the Underwriters against payment therefor in
accordance with the terms hereof, will have been validly issued and
delivered, and will constitute legal, valid and binding obligations
of the Company entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their terms,
subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors’ rights and remedies
generally, and subject, as to enforceability, to general principles
of equity, including principles of commercial reasonableness, good
faith and fair dealing (regardless of whether enforcement is sought
in a proceeding at law or in equity).
(j) The
Common Stock is registered pursuant to Section 12(b) of the
Exchange Act and is listed on the New York Stock Exchange (the
“ NYSE ”); the Company has not received any
notification that the Commission or the NYSE is contemplating
terminating such registration or listing; and the Underlying
Securities issuable upon conversion of the Debentures have been
duly authorized and reserved and, when issued upon conversion of
the Debentures in accordance with the terms of the Debentures, will
be validly issued, fully paid and non-assessable, and the issuance
of the Underlying Securities will not be subject to any preemptive
or similar rights.
(k) The
execution, delivery and performance of this Agreement and the other
Operative Documents by the Company, including the issuance of the
Underlying Securities upon conversion of the Debentures, will not
(i) conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement 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 is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, (ii) result
in any violation of the provisions of the Certificate of
Incorporation or by-laws of the Company or any of its subsidiaries
or (iii) result in the violation of any statute or any order,
rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its subsidiaries or
any of their properties or assets, except in the case of clauses
(i) and (iii), such conflicts, breaches or violations that in
the aggregate would not reasonably be expected to have a Material
Adverse Effect. Except as may be required in connection with
compliance with the securities or Blue Sky laws of various
jurisdictions, no consent, approval, authorization or order of, or
filing or registration with, any such court or governmental agency
or body is required for the execution, delivery and performance of
this Agreement or any of the other Operative Documents by the
Company.
(l) The
financial statements (including the related notes and supporting
schedules) included or incorporated by reference in the Time of
Sale Prospectus and the Prospectus comply as to form in all
material respects with the requirements of Regulation S-X
under the Securities Act and present fairly in all material
respects the financial condition and results of operations and cash
flows of the entities purported to be shown thereby, at the dates
and for the periods indicated, and have been prepared in conformity
with generally accepted accounting principles
5
(“
GAAP ”) applied on a consistent basis throughout the
periods involved. The other financial data, selected pro forma
ratios and operating data included in the Time of Sale Prospectus
and the Prospectus is presented fairly, in all material respects,
and has been prepared on a basis consistent with such financial
statements and the books and records of the Company.
(m) There are
no legal or governmental proceedings pending to which the Company
or any of its subsidiaries is a party or of which any property or
assets of the Company or any of its subsidiaries is the subject
(i) other than proceedings accurately described in all
material respects in the Time of Sale Prospectus and the Prospectus
and proceedings that would not have a Material Adverse Effect, or
would not materially and adversely affect the power or ability of
the Company to perform its obligations under this Agreement or to
consummate the transactions contemplated by the Time of Sale
Prospectus and the Prospectus or (ii) that are required to be
described in the Registration Statement or the Prospectus and are
not so described; and to the Company’s knowledge, no such
proceedings are threatened by governmental authorities or
threatened by others.
(n) Neither
the Company nor any of its subsidiaries has sustained, since the
date of the latest audited financial statements included in each of
the Time of Sale Prospectus and the Prospectus, any material loss
or interference with its business that has had a Material Adverse
Effect, whether from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as
set forth or contemplated in each of the Time of Sale Prospectus
and the Prospectus; and, since such date, there has not been any
material change in the capital stock or material increase in the
long-term debt of the Company or any of its subsidiaries or any
change, in or affecting the general affairs, management,
consolidated financial position, stockholders’ equity,
results of operations, business or prospects of the Company and its
subsidiaries that has had or could reasonably be expected to have a
Material Adverse Effect, other than as set forth or contemplated in
each of the Time of Sale Prospectus and the Prospectus.
(o) The
Company is subject to and in full compliance with the reporting
requirements of Section 13 or 15(d) of the Exchange
Act.
(p) The
Company (i) makes and keeps accurate books and records and
(ii) maintains a system of internal accounting controls
sufficient to provide reasonable assurance that
(A) transactions are executed in accordance with
management’s authorization, (B) transactions are
recorded as necessary to permit preparation of its financial
statements in conformity with GAAP and to maintain accountability
for its assets, (C) access to its assets is permitted only in
accordance with management’s authorization and (D) the
recorded accountability for its assets is compared with existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(q) Ernst
& Young LLP, who have certified certain financial statements of
the Company, whose report appears in the Time of Sale Prospectus
and the Prospectus and who have delivered the initial letter
referred to in Section 7(i) hereof, are and have been, independent
public accountants as required by the Securities Act and the Rules
and Regulations during the periods covered by the financial
statements on which they reported.
6
(r) KPMG, who
have performed an audit of certain financial statements of Excel
Coal Limited (“Excel”), whose report appears in the
Time of Sale Prospectus and the Prospectus and who have delivered
the initial letter referred to in Section 7(k) hereof, are and have
been independent chartered accountants with respect to Excel under
the Institute of Chartered Accountants in Australia’s Code of
Professional Conduct – Section F1 “Professional
Independence” during the periods covered by the financial
statements on which they reported.
(s) The
market-related and industry data included in the Time of Sale
Prospectus and the Prospectus are based upon estimates by the
Company on or derived from sources that the Company and the
subsidiaries believe to be reliable and accurate in all material
respects.
(t) The
Company has such permits, licenses, franchises, certificates,
consents, orders and other approvals or authorizations of any
governmental or regulatory authority (“ Permits
”), including, without limitation, any permits or approvals
required by the United States Environmental Protection Agency, the
United States Office of Surface Mining Reclamation and Enforcement
and corresponding state agencies, as are necessary under applicable
law to own its properties and to conduct its businesses in the
manner described in the Time of Sale Prospectus and the Prospectus,
except to the extent that the failure to have such Permits would
not reasonably be expected to have a Material Adverse Effect. The
Company has fulfilled and performed in all material respects, all
its material obligations with respect to the Permits, and, to the
best knowledge of the Company, no event has occurred that allows,
or after notice or lapse of time would allow, revocation or
termination thereof or results in any other material impairment of
the rights of the holder of any such Permit, subject in each case
to such qualification as may be set forth in the Time of Sale
Prospectus and the Prospectus and except to the extent that any
such revocation or termination would not reasonably be expected to
have a Material Adverse Effect.
(u) To the
knowledge of the Company, the Company and each of its subsidiaries
carry, or are covered by, insurance in such amounts and covering
such risks as is adequate for the conduct of their respective
businesses and the value of their respective properties and as is
customary for companies engaged in similar businesses in similar
industries.
(v) No labor
disturbance by the employees of the Company exists or, to the
knowledge of the Company, is imminent, which would reasonably be
expected to have a Material Adverse Effect, except as disclosed in
the Time of Sale Prospectus and the Prospectus.
(w) Except as
would not reasonably be expected to have a Material Adverse Effect,
the Company is in compliance in all material respects with all
presently applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended, including the regulations and
published interpretations thereunder (“ ERISA
”); no “reportable event” (as defined in ERISA)
has occurred with respect to any “pension plan” (as
defined in ERISA) for which the Company would have any liability;
the Company has not incurred and does not expect to incur liability
under (i) Title IV of ERISA with respect to termination of, or
withdrawal from, any “pension plan” or
(ii) Sections 412 or 4971 of the Internal Revenue Code of
1986, as amended, including the regulations and published
interpretations thereunder (the “ Code ”); and
each “pension plan” for which the Company would have
any liability that is intended to be qualified under Section 401(a)
of the Code is so qualified in all material respects and nothing
has
7
occurred,
whether by action or by failure to act, which would cause the loss
of such qualification, except as would not reasonably be expected
to have a Material Adverse Effect.
(x) The
Company has filed (or obtained extensions in filing) all federal,
state and local income and franchise tax returns required to be
filed through the date hereof (other than those the nonfiling of
which would not be reasonably likely to have a Material Adverse
Effect) and has paid all taxes due thereon, other than those being
contested in good faith and for which reserves have been provided
in accordance with GAAP, those currently payable without penalty or
interest or the nonpayment of which would not be reasonably likely
to have a Material Adverse Effect. No tax deficiency has been
determined adversely to the Company that has had (nor does the
Company have any knowledge of any tax deficiency which, if
determined adversely to the Company or any of its subsidiaries,
would reasonably be expected to have) a Material Adverse
Effect.
(y) The
Company (i) is not in violation of its organizational
documents, (ii) is not in default, and no event has occurred
which, with notice or lapse of time or both, would constitute such
a default, in the due performance or observance of any term,
covenant or condition contained in any material indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which it is a party or by which it is bound or to
which any of its properties or assets is subject, and (iii) is
not in violation of any law, ordinance, governmental rule,
regulation or court decree to which it or its property or assets
may be subject, except, in the cases of clauses (ii) and
(iii), such defaults, events, violations or failures that in the
aggregate would not reasonably be expected to have a Material
Adverse Effect.
(z) Except as
set forth in the Time of Sale Prospectus and the Prospectus, there
has been no storage, disposal, generation, manufacture, refinement,
transportation, handling or treatment of toxic wastes, medical
wastes, hazardous wastes or hazardous substances by the Company or
any of its subsidiaries (or, to the knowledge of the Company, any
of their predecessors in interest) at, upon or from any of the
property now or previously owned or leased by the Company or its
subsidiaries in violation of any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit or that would require
remedial action under any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit, except for any
violation or remedial action that would not have, or would not be
reasonably likely to have, singularly or in the aggregate with all
such violations and remedial actions, a Material Adverse Effect,
except as set forth in, or specifically contemplated by, the Time
of Sale Prospectus and the Prospectus; there has been no material
spill, discharge, leak, emission, injection, escape, dumping or
release of any kind onto such property or into the environment
surrounding such property of any toxic wastes, medical wastes,
solid wastes, hazardous wastes or hazardous substances due to or
caused by the Company or any of its subsidiaries or with respect to
which the Company or any of its subsidiaries have knowledge, except
for any such spill, discharge, leak, emission, injection, escape,
dumping or release that would not have or would not be reasonably
likely to have, singularly or in the aggregate with all such
spills, discharges, leaks, emissions, injections, escapes, dumpings
and releases, a Material Adverse Effect; and the terms
“hazardous wastes,” “toxic wastes,”
“hazardous substances” and “medical wastes”
shall have the meanings specified in any applicable local, state,
federal and foreign laws or regulations with respect to
environmental protection.
8
(aa) The
Company and each of its subsidiaries have good and marketable title
in fee simple to all real property and good and marketable title to
all personal property owned by them, in each case free and clear of
all liens, encumbrances and defects, except such as are described
in the Time of Sale Prospectus and the Prospectus or that would not
reasonably be expected to have a Material Adverse Effect; and all
real property held under lease by the Company and its subsidiaries
that is material to the Company and its subsidiaries, taken as a
whole, is held by them under valid, subsisting and enforceable
leases, with such exceptions as are not material and do not
interfere with the use made and proposed to be made of such
property and buildings by the Company and its
subsidiaries.
(bb) Neither
the Company nor any subsidiary is, or, as of the Closing Date (as
defined below) after giving effect to the offer and sale of the
Debentures pursuant to this Agreement and the application of the
proceeds as described in the Time of Sale Prospectus and the
Prospectus under the section entitled “Use of
Proceeds,” will be, an “investment company”
within the meaning of such term under the Investment Company Act of
1940, as amended (the “Investment Company
Act”).
(cc) 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’s retaining any rating assigned
as of the date hereof to the Company or its securities or
(ii) has indicated to the Company that it is considering
(A) the downgrading, suspension or withdrawal of, or any
review for a possible change that does not indicate the direction
of the possible change in, any rating so assigned or (B) any
negative change in the outlook for any rating of the
Company.
(dd) The
Company understands that the Underwriters and, for purposes of the
opinions to be delivered to the Underwriters pursuant to
Section 7 hereof, counsel to the Company and counsel to the
Underwriters will rely upon the accuracy and truth of the foregoing
representations and hereby consents to such reliance.
(ee) The
conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied with respect to the
Registration Statement.
(ff) There
are no contracts or other documents that are required to be
described in the Prospectus or filed as exhibits to the
Registration Statement by the Securities Act or by the Rules and
Regulations that have not been described in the Prospectus or filed
as exhibits to the Registration Statement.
(gg) Each
Preliminary Prospectus filed as part of the Registration Statement
as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act, complied when
so filed in all material respects with the Securities Act and the
Rules and Regulations.
SECTION 2.
[Intentionally Omitted]
SECTION 3.
Purchase, Sale and Delivery of the Debentures . On the basis
of the representations and warranties contained in, and subject to
the terms and conditions of, this
9
Agreement, the
Company agrees to sell the Firm Debentures to the several
Underwriters and each of the Underwriters, severally and not
jointly, agrees to purchase the amount of Firm Debentures set
opposite that Underwriter’s name in Schedule II hereto.
Each Underwriter will purchase such aggregate principal amount of
Firm Debentures at an aggregate purchase price equal to 97.6167% of
the principal amount thereof (the “ Purchase Price
”).
In addition, on
the basis of the representations and warranties contained in, and
subject to the terms and conditions of, this Agreement, the Company
grants to the Underwriters an option to purchase up to $75,000,000
aggregate principal amount of Option Debentures. Such option is
granted solely for the purpose of covering over-allotments in the
sale of Firm Debentures and is exercisable as provided below in
this Section 3. Option Debentures shall be purchased severally
for the account of the Underwriters in proportion to the aggregate
principal amount of Firm Debentures set forth opposite the name of
such Underwriters in Schedule II hereto. Each Underwriter will
purchase such aggregate principal amount of Option Debentures at an
aggregate purchase price equal to the Purchase Price plus accrued
interest, if any, from the First Closing Date (as defined below) to
the Second Closing Date (as defined below). The respective purchase
obligations of each Underwriter with respect to the Option
Debentures shall be adjusted by the Representatives so that no
Underwriter shall be obligated to purchase Option Debentures other
than in denominations of $1,000 or integral multiples
thereof.
The Company shall
not be obligated to deliver any of the Debentures to be delivered
on any Closing Date (as defined below), except upon payment for all
the Debentures to be purchased on such Closing Date as provided
herein.
Delivery of and
payment for the Firm Debentures shall be made at the offices of
Shearman & Sterling LLP, 599 Lexington Avenue, New York, New
York 10022, at 9:00 A.M., New York City time, on the fourth full
business day following the date of this Agreement or at such other
date or place as shall be determined by agreement between the
Representatives and the Company. This date and time are sometimes
referred to as the “ First Closing Date
.”
The option granted
above in this Section 3 will expire 30 days after the
date of this Agreement and may be exercised in whole or in part
from time to time, by written notice being given to the Company by
the Representatives. Such notice shall set forth the aggregate
principal amount of Option Debentures as to which the option is
being exercised, the names in which the Option Debentures are to be
registered, the denominations in which the Option Debentures are to
be issued and the date and time, as determined by the
Representatives, when the Option Debentures are to be delivered;
provided, however, that this date and time shall not be earlier
than the First Closing Date nor earlier than the second business
day after the date on which the option shall have been exercised
nor later than the fifth business day after the date on which the
option shall have been exercised. The date and time the Option
Debentures are delivered are sometimes referred to as a “
Second Closing Date ” and the First Closing Date and
any Second Closing Date are sometimes each referred to as a “
Closing Date .”
Delivery of and
payment for the Option Debentures shall be made at the offices of
Shearman & Sterling LLP, 599 Lexington Avenue, New York, New
York 10022, a 9:00 A.M., New York City time, on such Second Closing
Date.
10
On each Closing
Date, one or more Debentures in definitive form, registered in the
name of Cede & Co., as nominee of The Depository Trust Company
(“ DTC ”), having an aggregate principal amount
corresponding to the aggregate principal amount of Debentures sold
pursuant to this Agreement (collectively, the “ Global
Debentures ”), shall be delivered by the Company to the
Underwriters against payment by the Underwriters of the Purchase
Price thereof by wire transfer of immediately available funds as
the Company may direct by written notice delivered to you no later
than one business day prior to the Closing Date. The Global
Debentures in definitive form shall be made available to the
Underwriters for inspection not later than 2:00 P.M., New York City
time, on the business day prior to such Closing Date.
SECTION 4.
Offering of Debentures by the Underwriters. Upon
authorization by the Representatives of the release of the
Debentures, the several Underwriters propose to offer the
Debentures for sale upon the terms and conditions set forth in the
Prospectus.
SECTION 5.
Further Agreements of the Company . The Company
agrees:
(a) To
prepare the Prospectus in a form approved by the Underwriters and
to file such Prospectus pursuant to Rule 424(b) under the
Securities Act not later than Commission’s close of business
on the second business day following the execution and delivery of
this Agreement or, if applicable, such earlier time as may be
required by Rule 430A(a)(3) under the Securities Act; to make
no further amendment or any supplement to the Registration
Statement or to the Prospectus prior to the last Closing Date
except as permitted herein (provided, however, this clause shall,
in the case of any periodic or current report that the Company is
required to file pursuant to Section 13(a), 13(c) or Section 15(d)
under the Exchange Act prior to or at the Closing Date, apply to
the extent practicable in the light of the circumstances, but in
any event, the Underwriters shall be notified in advance of any
such filing that will be incorporated by reference in the
Prospectus); to advise the Underwriters, promptly after it receives
notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to
the Prospectus or any amended Prospectus has been filed and to
furnish the Underwriters with copies thereof; to file promptly all
reports and any definitive proxy or information statements required
to be filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of the Prospectus and for so long as the
delivery of a prospectus is required in connection with the
offering or sale of the Debentures; to advise the Underwriters,
promptly after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus, the Time of Sale
Prospectus or the Prospectus, of the suspension of the
qualification of the Debentures for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding
for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement, the Time
of Sale Prospectus or the Prospectus or for additional information;
and, in the event of the issuance of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus, the
Time of Sale Prospectus or the Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its
withdrawal.
(b) To
deliver promptly to the Underwriters such number of the following
documents as the Underwriters shall reasonably request:
(i) conformed copies of the Registration Statement as
originally filed with the Commission and each amendment thereto (in
each case excluding
11
exhibits) and
(ii) each Preliminary Prospectus, the Time of Sale Prospectus
or the Prospectus and any amended or supplemented Prospectus; and,
if the delivery of the Prospectus (or in lieu thereof the notice
referred to in Rule 173(a) under the Securities Act) is required at
any time after the effective date of the Registration Statement in
connection with the offering or sale of the Debentures or any other
securities relating thereto and if at such time any events shall
have occurred as a result of which the Prospectus as then amended
or supplemented would include an 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 when such Prospectus (or in lieu thereof the
notice referred to in Rule 173(a) under the Securities Act) is
delivered, not misleading, or, if for any other reason it shall be
necessary to amend or supplement the Prospectus in order to comply
with the Securities Act, to notify the Underwriters and, upon their
request, to prepare and furnish without charge to each Underwriter
and to any dealer in securities as many copies as the Underwriters
may from time to time reasonably request of an amended or
supplemented Prospectus that will correct such statement or
omission or effect such compliance.
(c) To file
promptly with the Commission any amendment to the Registration
Statement, the Time of Sale Prospectus or the Prospectus or any
supplement to the Time of Sale Prospectus or the Prospectus that
may, in the judgment of the Company and the Underwriters, be
required by the Securities Act or requested by the
Commission.
(d) Prior to
filing with the Commission any amendment to the Registration
Statement or supplement to the Time of Sale Prospectus or the
Prospectus, any document incorporated by reference in the
Prospectus or any prospectus pursuant to Rule 424 of the Rules
and Regulations, to furnish a copy thereof to the Underwriters and
counsel for the Underwriters and obtain the consent of the
Underwriters to the filing which consent shall not be unreasonably
withheld.
(e) To
furnish to the Underwriters a copy of each proposed free writing
prospectus to be prepared by or on behalf of, used by, or referred
to by the Company and not to use or refer to any proposed free
writing prospectus to which the Underwriters reasonably object,
provided that the prior written consent of the Underwriters hereto
shall be deemed to have been given in respect of the final term
sheet attached hereto as Exhibit B hereto.
(f) Not to
take any action that would result in an Underwriter or the Company
being required to file with the Commission pursuant to Rule 433(d)
under the Securities Act a free writing prospectus prepared by or
on behalf of the Underwriter that the Underwriter otherwise would
not have been required to file thereunder.
(g) If the
Time of Sale Prospectus is being used to solicit offers to buy the
Debentures at a time when the Prospectus is not yet available to
prospective purchasers and any event shall occur or condition exist
as a result of which it is necessary to amend or supplement the
Time of Sale Prospectus in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, or if any event shall occur or condition exist as a
result of which the Time of Sale Prospectus conflicts with the
information contained in the Registration Statement then on file,
or if, in the opinion of counsel for the Underwriters, it is
necessary to amend or supplement the Time of Sale Prospectus to
comply with applicable law, forthwith to prepare, file with the
Commission and furnish, at its own expense, to the Underwriters and
to any
12
dealer upon
request, either amendments or supplements to the Time of Sale
Prospectus so that the statements in the Time of Sale Prospectus as
so amended or supplemented will not, in the light of the
circumstances when delivered to a prospective purchaser, be
misleading or so that the Time of Sale Prospectus, as amended or
supplemented, will no longer conflict with the Registration
Statement, or so that the Time of Sale Prospectus, as amended or
supplemented, will comply with applicable law.
(h) To make
generally available to the Company’s security holders and to
the Underwriters as soon as practicable an earning statement
covering a period of at least twelve months beginning with the
first fiscal quarter of the Company occurring after the date of
this Agreement which shall satisfy the provisions of Section 11(a)
of the Securities Act and the Rules and Regulations.
(i) For a
period of five years following the effective date of the
Registration Statement, to furnish to the Underwriters, to the
extent such information is not freely available on the Internet,
copies of all materials furnished by the Company to its
shareholders and all public reports and all reports and financial
statements furnished by the Company to the principal national
securities exchange upon which the Common Stock may be listed
pursuant to requirements of or agreements with such exchange or to
the Commission pursuant to the Exchange Act or any rule or
regulation of the Commission thereunder.
(j) Promptly
from time to time to take such action as you may reasonably request
to qualify the Debentures and the Underlying Securities for
offering and sale under the state securities or Blue Sky laws of
such jurisdictions as you may request (provided, however, that the
Company shall not be obligated to qualify as a foreign corporation
in any jurisdiction in which it is not now so qualified or to take
any action that would subject it to general consent to service of
process in any jurisdiction in which it is not now so subject or
subject itself to taxation in excess of any nominal amount in any
such jurisdiction where it is not then so subject) and to comply
with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the
Debentures.
(k) To use
its reasonable best efforts to do and perform all things required
to be done and performed under this Agreement by it prior to or
after the First Closing Date and to satisfy all conditions
precedent on its part to the delivery of the Debentures.
(l) To apply
the net proceeds from the sale of the Debentures as set forth in
the Prospectus under the section entitled “Use of
Proceeds.”
(m) For the
period that is two years after the First Closing Date to take such
steps as shall be necessary to ensure that neither the Company nor
any subsidiary of the Company shall become an “investment
company” within the meaning of such term under the Investment
Company Act and the rules and regulations of the Commission
thereunder.
(n) If the
third anniversary of the effective date of the Registration
Statement occurs before all the Debentures have been sold by the
Underwriters, prior to the third anniversary to file a new shelf
registration statement and to take any other action necessary to
permit the public
13
offering of the
Debentures to continue without interruption; references herein to
the Registration Statement shall include the new registration
statement declared effective by the Commission.
(o) To
prepare a final term sheet relating to the offering of the
Debentures, containing only information that describes the final
terms of the Debentures or the offering in the form of Exhibit B
hereto, and to file such final term sheet within the period
required by Rule 433(d)(5)(ii) under the Securities Act
following the date the final terms have been established for the
offering of the Debentures.
(p) To use
its best efforts to cause all shares of Common Stock issuable upon
conversion of the Debentures to be listed on the NYSE or listed on
a “national securities exchange” registered under the
Section 6 of the Exchange Act on which shares of its Common
Stock are then listed.
(q) To
reserve and keep available at all times, free of preemptive rights,
shares of the Underlying Securities for the purpose of enabling the
Company to satisfy any obligations to issue shares of the
Underlying Securities upon conversion of the Debentures.
(r) For a
period of 45 days from the date of the Prospectus, not to,
directly or indirectly, (1) offer for sale, sell, pledge or
otherwise dispose of (or enter into any transaction or device that
is designed to, or could be expected to, result in the disposition
by any person at any time in the future of) or file any
registration statement in respect of any shares of Common Stock or
securities convertible into or exchangeable for Common
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