ARCHER-DANIELS-MIDLAND COMPANY (a Delaware corporation) $1,150,000,000 0.875% Convertible Senior Notes due 2014 PURCHASE AGREEMENT
EXHIBIT 10.1
▇▇▇▇▇▇-▇▇▇▇▇▇▇-MIDLAND COMPANY
(a Delaware corporation)
(a Delaware corporation)
$1,150,000,000
0.875% Convertible Senior Notes due 2014
0.875% Convertible Senior Notes due 2014
February 15, 2007
Citigroup Global Markets Inc.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
as Representatives of the several Initial Purchasers
c/▇ ▇▇▇▇▇▇▇ Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
4 World Financial Center
New York, New York 10080
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
as Representatives of the several Initial Purchasers
c/▇ ▇▇▇▇▇▇▇ Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
4 World Financial Center
New York, New York 10080
Ladies and Gentlemen:
▇▇▇▇▇▇-▇▇▇▇▇▇▇-Midland Company, a Delaware corporation (the “Company”), confirms its agreement
with Citigroup Global Markets Inc., ▇.▇. ▇▇▇▇▇▇ Securities Inc. and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (the “Representatives”) and each of the other Initial
Purchasers named in Schedule A hereto (collectively, the “Initial Purchasers,” which term shall
also include any initial purchaser substituted as hereinafter provided in Section 11 hereof), for
whom the Representatives are acting as representatives (in such capacity, the “Representatives”),
with respect to the issue and sale by the Company and the purchase by the Initial Purchasers,
acting severally and not jointly, of the respective principal amounts set forth in said Schedule A
of $1,150,000,000 aggregate principal amount of the Company’s 0.875% Convertible Senior Notes due
2014 (the “Securities”). The Securities are to be issued pursuant to an indenture dated as of
February 22, 2007 (the “Indenture”) between the Company and The Bank of New York, as trustee (the
“Trustee”).
The Securities are convertible into shares of common stock, no par value, of the Company (the
“Common Stock”) in accordance with the terms of the Securities and the Indenture, at the initial
conversion price specified in Schedule B hereto.
The Company understands that the Initial Purchasers propose to make an offering of the
Securities on the terms and in the manner set forth herein and agrees that the Initial Purchasers
may resell, subject to the conditions set forth herein, all or a portion of the Securities to
purchasers (“Subsequent Purchasers”) at any time after this Agreement has been executed and
delivered. The Securities are to be offered and sold to qualified institutional buyers through the
Initial Purchasers without being registered under the Securities Act of 1933, as amended (the “1933
Act”), in reliance upon the exemptions provided by Rule 144A under the 1933 Act. Pursuant to the
terms of the Securities and the Indenture, investors that acquire Securities may
only resell or otherwise transfer such Securities if such Securities are hereafter registered
under the 1933 Act or if an exemption from the registration requirements of the 1933 Act is
available (including the exemption afforded by Rule 144A (“Rule 144A”) of the rules and regulations
promulgated under the 1933 Act by the Securities and Exchange Commission (the “Commission”)).
The Securities will have the benefit of a registration rights agreement (the “Registration
Rights Agreement”), to be dated as of the Closing Time (as defined below), between the Company and
the Initial Purchasers, pursuant to which the Company will agree to register the resale of the
Securities under the 1933 Act subject to the terms and conditions therein specified.
The Company has prepared and delivered to each Initial Purchaser copies of a preliminary
offering memorandum dated February 14, 2007 (the “Preliminary Offering Memorandum”) and has
prepared and will deliver to each Initial Purchaser, on the date hereof or the next succeeding day,
copies of a final offering memorandum dated February 15, 2007 (the “Final Offering Memorandum”),
each for use by such Initial Purchaser in connection with its solicitation of purchases of, or
offering of, the Securities. “Offering Memorandum” means, with respect to any date or time
referred to in this Agreement, the most recent offering memorandum (whether the Preliminary
Offering Memorandum or the Final Offering Memorandum, or any amendment or supplement to either such
document), including exhibits thereto and any documents incorporated therein by reference, which
has been prepared and delivered by the Company to the Initial Purchasers in connection with their
solicitation of purchases of, or offering of, the Securities.
All references in this Agreement to financial statements and schedules and other information
which is “contained,” “included” or “stated” in the Offering Memorandum (or other references of
like import) shall be deemed to mean and include all such financial statements and schedules and
other information which are incorporated by reference in the Offering Memorandum; and all
references in this Agreement to amendments or supplements to the Offering Memorandum shall be
deemed to mean and include the filing of any document under the Securities Exchange Act of 1934
(the “1934 Act”) which is incorporated by reference in the Offering Memorandum.
SECTION 1. Representations and Warranties by the Company.
(a) Representations and Warranties. The Company represents and warrants to each Initial
Purchaser as of the date hereof and as of the Closing Time referred to in Section 2(b) hereof, and
agrees with each Initial Purchaser, as follows:
(i) Disclosure Package and Final Offering Memorandum. As of the Applicable
Time (as defined below), neither (x) the Offering Memorandum as of the Applicable Time as
supplemented by the final pricing term sheet, in the form attached hereto as Schedule C (the
“Pricing Supplement”), that has been prepared and delivered by the Company to the Initial
Purchasers in connection with their solicitation of offers to purchase Securities, all
considered together (collectively, the “Disclosure Package”), nor (y) any individual
Supplemental Offering Materials (as defined below), when considered together with the
Disclosure Package, included any untrue statement of a material fact or
omitted 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. “Applicable
Time” means 5:00 pm. (Eastern time) on February 15, 2007 or such other time as agreed by the
Company and the Representatives.
“Supplemental Offering Materials” means any “written communication” (within the meaning
of the 1933 Act Regulations (as defined below)) prepared by or on behalf of the Company, or
used or referred to by the Company, that constitutes an offer to sell or a solicitation of
an offer to buy the Securities other than the Offering Memorandum or amendments or
supplements thereto (including the Pricing Supplement), including, without limitation, any
road show relating to the Securities that constitutes such a written communication.
As of its issue date and as of the Closing Time, the Final Offering Memorandum will not
include an untrue statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under which they
were made, not misleading.
The representation and warranties in this subsection shall not apply to statements in
or omissions from the Disclosure Package or the Final Offering Memorandum made in reliance
upon and in conformity with written information furnished to the Company by any Initial
Purchaser through the Representatives expressly for use therein.
(ii) Incorporated Documents. The Offering Memorandum as delivered from time to
time shall incorporate by reference the most recent Annual Report of the Company on Form
10-K filed with the Commission and each Quarterly Report of the Company on Form 10-Q and
each Current Report of the Company on Form 8-K filed with (and not merely furnished to) the
Commission since the end of the fiscal year to which such Annual Report relates. The
documents incorporated by reference in the Offering Memorandum, when they were filed with
the Commission, complied in all material respects with the requirements of the 1934 Act and
the rules and regulations of the Commission thereunder (the “1934 Act Regulations”), and
none of such documents, when they were so filed, included an untrue statement of a material
fact or omitted to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading; and any
further documents so filed and incorporated by reference in the Offering Memorandum, when
such documents are filed with the Commission, will comply in all material respects with the
requirements of the 1934 Act, as applicable, and will not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading.
(iii) Good Standing of the Company. The Company has been duly incorporated and
is validly existing as a corporation 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 Disclosure Package and the Final Offering Memorandum, and has been duly qualified as
a foreign corporation for the transaction of business and is in good standing (or the local
equivalent) under the laws of each other
jurisdiction in which it owns or leases properties or conducts any business so as to
require such qualification, except where the failure to so qualify or to be in good standing
would not have a material adverse effect on the condition (financial or other), earnings,
business or properties of the Company and its subsidiaries taken as a whole (a “Material
Adverse Effect”).
(iv) Good Standing of Subsidiaries. Each of the Company’s subsidiaries that
constitutes a “significant subsidiary” (as such term is defined in Rule 1-02 of Regulation
S-X) (each a “Subsidiary” and collectively, the “Subsidiaries”) has been duly organized and
is validly existing as a corporation or limited liability company in good standing under the
laws of the jurisdiction of its incorporation or organization, with power and authority
(corporate and other) to own its properties and conduct its business as described in the
Disclosure Package or the Final Memorandum, and has been duly qualified as a foreign
corporation or limited liability company for the transaction of business and is in good
standing (or the local equivalent) under the laws of each other jurisdiction in which it
owns or leases properties or conducts any business so as to require such qualification,
except where the failure to so qualify or to be in good standing would not result in a
Material Adverse Effect. All the outstanding shares of capital stock of each Subsidiary
have been duly authorized and validly issued and are fully paid and non-assessable, and,
except as otherwise set forth in the Disclosure Package and the Final Memorandum, all
outstanding shares of capital stock of the Subsidiaries are owned by the Company either
directly or through wholly owned subsidiaries free and clear of any security interest,
claim, lien or encumbrance, other than any such security interests, claims, liens or
encumbrances which would not, individually or in the aggregate, have a Material Adverse
Effect.
(v) Authorization of Agreement. This Agreement has been duly authorized,
executed and delivered by the Company.
(vi) Authorization of the Indenture. The Indenture has been duly authorized,
executed and delivered by the Company and constitutes a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms (except as the
enforceability thereof may be limited by bankruptcy, insolvency and other laws affecting the
enforceability of creditors’ rights generally and general principles of equity and an
implied covenant of good faith and fair dealing).
(vii) Authorization of the Securities. The Securities have been duly
authorized by the Company and, when executed and authenticated in accordance with the terms
of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with
the terms of this Agreement, will have been duly executed and delivered by the Company, and
will constitute valid and binding obligations of the Company entitled to the benefits of the
Indenture and enforceable in accordance with their terms and the terms of the Indenture
(except as the enforceability thereof may be limited by bankruptcy, insolvency and other
laws affecting the enforceability of creditors’ rights generally and general principles of
equity and an implied covenant of good faith and fair dealing); and the Securities and the
Indenture conform in all material respects to the descriptions thereof in the Disclosure
Package and the Final Offering Memorandum.
(viii) Authorization of the Registration Rights Agreement. The Registration
Rights Agreement has been duly authorized by the Company and, when executed and delivered by
the Company, will constitute the legal, valid, binding and enforceable instrument of the
Company (subject, as to the enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally
from time to time in effect and to general principles of equity).
(ix) Authorization and Description of Common Stock. The unaudited consolidated
capitalization of the Company as of December 31, 2006 is as set forth in the Disclosure
Package and the Final Offering Memorandum in the column entitled “Actual” under the caption
“Capitalization.” The shares of issued and outstanding capital stock of the Company have
been duly authorized and validly issued and are fully paid and non-assessable; none of the
outstanding shares of capital stock of the Company was issued in violation of the preemptive
or other similar rights of any securityholder of the Company. The Common Stock conforms as
to legal matters to all statements relating thereto contained or incorporated by reference
in the Disclosure Package and the Final Offering Memorandum and such description conforms as
to legal matters to the rights set forth in the instruments defining the same. Upon
issuance and delivery of the Securities in accordance with this Agreement and the Indenture,
the Securities will be convertible at the option of the holder thereof for shares of Common
Stock in accordance with the terms of the Securities and the Indenture; the shares of Common
Stock issuable upon conversion of the Securities have been duly authorized and reserved for
issuance upon such conversion by all necessary corporate action and such shares, when issued
upon such conversion, will be validly issued and will be fully paid and non-assessable; and
the issuance of such shares upon such conversion will not be subject to the preemptive or
other similar rights of any securityholder of the Company.
(x) Absence of Defaults and Conflicts. The execution, delivery and performance
of this Agreement, the Registration Rights Agreement, the Indenture and any other agreement
or instrument entered into or issued or to be entered into or issued by the Company in
connection with the transactions contemplated hereby or thereby or in the Disclosure Package
and the Final Offering Memorandum and the consummation of the transactions contemplated
herein and in the Disclosure Package and the Final Offeing Memorandum and compliance by the
Company with its obligations hereunder and thereunder do not and will not conflict with or
result in a breach of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any assets, properties or operations of
the Company or any of its subsidiaries pursuant to, any contract, indenture, mortgage, deed
of trust, loan or credit agreement, note, lease or other agreement or instrument to which
the Company or any of its subsidiaries is a party or by which it or any of them may be bound
or to which any of the assets, properties or operations of the Company or any of its
subsidiaries is subject (collectively, the “Agreements and Instruments”) the result of which
would have a Material Adverse Effect, nor will such action result in any violation of (i)
the provisions of the charter or bylaws of the Company or any of its Subsidiaries or (ii)
any applicable law or statute or any order, rule, regulation or judgment of any court or
governmental agency or body having jurisdiction over the Company or any of its subsidiaries
or any of their assets,
properties or operations, except, with respect to (ii) above, for any such violations
that would not, individually or in the aggregate, result in a Material Adverse Effect.
(xi) Absence of Further Requirements. No consent, approval, authorization,
order, registration or qualification of or with any court or governmental agency or body is
required for the due authorization, execution and delivery by the Company of this Agreement
or for the performance by the Company of the transactions contemplated under the Disclosure
Package and the Final Offering Memorandum, this Agreement, the Registration Rights Agreement
or the Indenture, except such as have already been made, obtained or rendered, as
applicable, such as may be required under state securities laws and, in the case of the
Registration Rights Agreement, such as will be obtained under the 1933 Act and the 1939 Act
(as defined below).
(xii) Financial Statements. The financial statements and schedules of the
Company and its consolidated subsidiaries included or incorporated by reference in the
Disclosure Package and the Final Offering Memorandum present fairly in all material respects
the consolidated financial condition, results of operations and cash flows of the Company
and its consolidated subsidiaries as of the dates and for the periods indicated, comply as
to form with the applicable accounting requirements of the 1933 Act or the 1934 Act, as
applicable, and have been prepared in conformance with United States generally accepted
accounting principles applied on a consistent basis throughout the periods involved (except
as otherwise noted therein).
(xiii) Independent Accountants. Ernst & Young LLP, who have certified the
financial statements included or incorporated by reference in the Disclosure Package and the
Final Offering Memorandum, are independent public accountants as required by the 1933 Act
and the rules and regulations thereunder (the “1933 Act Regulations”).
(xiv) Absence of Proceedings. There is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Company, threatened, against or affecting
the Company or any of its subsidiaries which would, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, or which would reasonably be
expected to materially and adversely affect the consummation of the transactions
contemplated by this Agreement or the Registration Rights Agreement or the performance by
the Company of its obligations hereunder or thereunder.
(xv) No Material Adverse Change in Business. Since the date of the most recent
financial statements included or incorporated by reference in the Disclosure Package and the
Final Offering Memorandum (exclusive of any supplement thereto), (A) there has been no
material adverse change, or any development involving a prospective material adverse change,
in the condition (financial or other), earnings, business or properties of the Company and
its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary
course of business (a “Material Adverse Change”), except as set forth or contemplated in the
Disclosure Package and the Final Offering Memorandum (exclusive of any supplement thereto)
and (B) there have been no transactions entered into by the Company or any of its
subsidiaries, other than those
arising in the ordinary course of business, which are material with respect to the
Company and its subsidiaries taken as a whole.
(xvi) Investment Company Act. The Company is not and, after giving effect to
the offering and sale of the Securities and the application of the proceeds thereof as
described in the Disclosure Package and the Final Offering Memorandum, will not be an
“investment company” as defined under the Investment Company Act of 1940, as amended (the
“1940 Act”).
(xvii) Accounting Controls and Disclosure Controls. The Company has
established and maintains disclosure controls and procedures (as such term is defined in
Rule 13a-15 under the 1934 Act) that (i) are designed to ensure that material information
relating to the Company, including its consolidated subsidiaries, is made known to the
Company’s chief executive officer and its chief financial officer by others within those
entities, (ii) have been evaluated for effectiveness as of a date within 90 days prior to
the filing of the Company’s most recent Annual Report on Form 10-K filed with the Commission
and (iii) are effective to perform the functions for which they were established.
Additionally, the Company maintains a system of internal accounting controls sufficient to
provide reasonable assurance that (A) transactions are executed in accordance with
management’s general or specific authorizations, (B) transactions are recorded as necessary
to permit preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability, (C) access to assets is
permitted only in accordance with management’s general or specific authorization, and (D)
the recorded accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences. Except as
disclosed in the Disclosure Package and the Final Offering Memorandum or in any document
incorporated by reference therein, since December 31, 2006 there has been (i) no material
weakness in the Company’s internal control over financial reporting (whether or not
remediated) and (ii) no change in the Company’s internal control over financial reporting
that has materially affected, or is reasonably likely to materially affect, the Company’s
internal control over financial reporting.
(xix) Similar Offerings. Neither the Company nor any of its affiliates, as
such term is defined in Rule 501(b) under the 1933 Act (each, an “Affiliate”), has, directly
or indirectly, solicited any offer to buy, sold or offered to sell or otherwise negotiated
in respect of, or will solicit any offer to buy, sell or offer to sell or otherwise
negotiate in respect of, in the United States or to any United States citizen or resident,
any security which is or would be integrated with the sale of the Securities in a manner
that would require the offered Securities to be registered under the 1933 Act.
(xx) Rule 144A Eligibility. The Securities are eligible for resale pursuant to
Rule 144A and will not be, at Closing Time, of the same class as securities listed on a
national securities exchange registered under Section 6 of the 1934 Act, or quoted in a U.S.
automated interdealer quotation system.
(xxi) No General Solicitation. None of the Company, its Affiliates or any
person acting on its or any of their behalf (other than the Initial Purchasers, as to whom
the Company makes no representation) has engaged or will engage, in connection with the
offering of the offered Securities, in any form of general solicitation or general
advertising within the meaning of Rule 502(c) under the 1933 Act.
(xxii) No Registration Required. Subject to compliance by the Initial
Purchasers with the representations and warranties of the Initial Purchasers and the
procedures set forth in Section 6 hereof, it is not necessary in connection with the offer,
sale and delivery of the offered Securities to the Initial Purchasers and to each Subsequent
Purchaser in the manner contemplated by this Agreement and the Offering Memorandum to
register the Securities under the 1933 Act or to qualify the Indenture under the Trust
Indenture Act of 1939, as amended (the “1939 Act”).
(b) Officer’s Certificates. Any certificate signed by any officer of the Company or any of
its subsidiaries delivered to the Representatives or to counsel for the Initial Purchasers shall be
deemed a representation and warranty by the Company to each Initial Purchaser as to the matters
covered thereby.
SECTION 2. Sale and Delivery to Initial Purchasers; Closing.
(a) On the basis of the representations and warranties herein contained and subject to the
terms and conditions herein set forth, the Company agrees to sell to each Initial Purchaser,
severally and not jointly, and each Initial Purchaser, severally and not jointly, agrees to
purchase from the Company, at the price set forth in Schedule B, the aggregate principal amount of
Securities set forth in Schedule A opposite the name of such Initial Purchaser, plus any additional
principal amount of Securities which such Initial Purchaser may become obligated to purchase
pursuant to the provisions of Section 11 hereof.
(b) Payment of the purchase price for, and delivery of certificates for, the Securities shall
be made at the Chicago, Illinois offices of Mayer, Brown, ▇▇▇▇ & Maw LLP, or at such other place as
shall be agreed upon by the Representatives and the Company, at 9:00 A.M. (Central time) on the
fourth business day after the date hereof (unless postponed in accordance with the provisions of
Section 11), or such other time not later than ten business days after such date as shall be agreed
upon by the Representatives and the Company (such time and date of payment and delivery being
herein called “Closing Time”).
Payment shall be made to the Company by wire transfer of immediately available funds to a bank
account designated by the Company, against delivery to the Representatives for the respective
accounts of the Initial Purchasers of certificates for the Securities to be purchased by them. It
is understood that each Initial Purchaser has authorized the Representatives, for its account, to
accept delivery of, receipt for, and make payment of the purchase price for, the Securities which
it has agreed to purchase. The Representatives, individually and not as representatives of the
Initial Purchasers, may (but shall not be obligated to) make payment of the purchase price for the
Securities to be purchased by any Initial Purchaser whose funds have not been received by Closing
Time, but such payment shall not relieve such Initial Purchaser from its obligations hereunder.
(d) Denominations; Registration. Certificates for the Securities shall be in such
denominations ($100,000 or integral multiples of $1,000 in excess thereof) and registered in such
names as the Representatives may request in writing at least one full business day before Closing
Time. The certificates representing the Securities shall be made available for examination and
packaging by the Initial Purchasers in The City of New York not later than 10:00 A.M. on the last
business day prior to Closing Time.
SECTION 3. Covenants of the Company. The Company covenants with each Initial
Purchaser as follows:
(a) Offering Memorandum. The Company, as promptly as possible, will furnish to each Initial
Purchaser, without charge, such number of copies of the Offering Memorandum and any amendments and
supplements thereto and documents incorporated by reference therein as such Initial Purchaser may
reasonably request.
(b) Notice and Effect of Material Events. The Company will promptly notify each Initial
Purchaser, and confirm such notice in writing, of (x) any filing made by the Company of information
relating to the offering of the Securities with any securities exchange or any other regulatory
body in the United States or any other jurisdiction, and (y) prior to the completion of the
placement of the offered Securities by the Initial Purchasers (notice of such completion to be
provided to the Company by the Initial Purchasers in writing), any material changes in or affecting
the condition (financial or other), earnings, business or properties of the Company and its
subsidiaries taken as a whole which (i) make any statement in the Disclosure Package, any Offering
Memorandum or any Supplemental Offering Material false or misleading or (ii) are not disclosed in
the Disclosure Package or the Offering Memorandum. In such event or if during such time any event
shall occur as a result of which it is necessary, in the reasonable opinion of any of the Company,
its counsel, the Initial Purchasers or counsel for the Initial Purchasers, to amend or supplement
the Offering Memorandum in order that the Offering Memorandum not include any untrue statement of a
material fact or omit to state a material fact necessary in order to make the statements therein
not misleading in the light of the circumstances then existing, the Company will forthwith amend or
supplement the Offering Memorandum by preparing and furnishing to each Initial Purchaser an
amendment or amendments of, or a supplement or supplements to, the Offering Memorandum (in form and
substance satisfactory in the reasonable opinion of counsel for the Initial Purchasers) so that, as
so amended or supplemented, the Offering Memorandum will not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances existing at the time it is delivered to a Subsequent Purchaser,
not misleading.
(c) Amendment and Supplements to the Offering Memorandum; Preparation of Pricing Supplement;
Supplemental Offering Materials. The Company will advise each Initial Purchaser promptly of any
proposal to amend or supplement the Offering Memorandum and will not effect such amendment or
supplement without the consent of the Initial Purchasers. Neither the consent of the Initial
Purchasers, nor the Initial Purchaser’s delivery of any such amendment or supplement, shall
constitute a waiver of any of the conditions set forth in Section 5 hereof. The Company will
prepare the Pricing Supplement, in form and substance satisfactory to the Representatives, and
shall furnish as soon as practicable to each Initial Purchaser, without charge, as many copies of
the Pricing Supplement as such Initial Purchaser may reasonably
request. The Company represents and agrees that, unless it obtains the prior consent of the
Representatives, it has not made and will not make any offer relating to the Securities by means of
any Supplemental Offering Materials.
(d) Qualification of Securities for Offer and Sale. The Company will use its best efforts, in
cooperation with the Initial Purchasers, to qualify the offered Securities for offering and sale
under the applicable securities laws of such states and other jurisdictions as the Initial
Purchasers may designate and to maintain such qualifications in effect as long as required for the
sale of the Securities; provided, however, that the Company shall not be obligated to file any
general consent to service of process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not otherwise so subject.
(e) Rating of Securities. The Company shall take all reasonable action necessary to enable
Standard & Poor’s Ratings Services, a division of McGraw Hill, Inc. (“S&P”), and ▇▇▇▇▇’▇ Investors
Service Inc. (“Moody’s”) to provide their respective credit ratings of the Securities.
(f) DTC. The Company will cooperate with the Initial Purchasers and use its best efforts to
permit the offered Securities to be eligible for clearance and settlement through the facilities of
The Depository Trust Company.
(g) Use of Proceeds. The Company will use the net proceeds received by it from the sale of
the Securities in the manner specified in the Offering Memorandum under “Use of Proceeds.”
(h) Listing. The Company will use its best efforts to effect the listing of the Common Stock
issuable upon conversion of the Securities on the New York Stock Exchange.
(i) Restriction on Sale of Debt Securities. During a period of 60 days from the date of the
Final Offering Memorandum, the Company will not, without the prior written consent of the
Representatives, directly or indirectly, offer, sell, contract to sell, pledge, or otherwise
dispose of, (or enter into any transaction which is designed to, or might reasonably be expected
to, result in the disposition (whether by actual disposition or effective economic disposition due
to cash settlement or otherwise) by the Company or any entity affiliate of the Company or any
person in privity with the Company or any entity affiliate of the Company) directly or indirectly,
including the filing (or participation in the filing) of a registration statement with the
Commission in respect of, or establish or increase a put equivalent position or liquidate or
decrease a call equivalent position within the meaning of Section 16 of the 1934 Act, any debt
securities issued or guaranteed by the Company that have terms, including with respect to
conversion, that are substantially similar to the Securities (other than the Securities and any
debt securities that mature within one year of their date of issue) or publicly announce an
intention to effect any such transaction.
(j) Restriction on Sale of Common Stock. During a period of 60 days from the date of the
Final Offering Memorandum, the Company will not, without the prior written consent of the
Representatives, (i) directly or indirectly, offer, pledge, sell, contract to sell, sell any option
or contract to purchase, purchase any option or contract to sell, grant any option, right or
warrant to
purchase or otherwise transfer, lend or dispose of any share of Common Stock or any securities
convertible into or exchangeable or exercisable for or repayable with Common Stock or file any
registration statement under the 1933 Act with respect to any of the foregoing or (ii) enter into
any swap or any other agreement or any transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of the Common Stock, whether any such swap or
transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or
such other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the
Securities to be sold hereunder, (B) Common Stock issuable upon conversion of the Securities, (C)
any shares of Common Stock to be issued in connection with a business acquisition, (D) any shares
of Common Stock issued by the Company upon the exercise of an option or warrant or the conversion
of a security outstanding on the date hereof and referred to in the Disclosure Package and the
Final Memorandum, (E) any shares of Common Stock issuable in connection with the transactions
described in the Disclosure Package and the Final Memorandum under the caption “Plan of
Distribution — Other Relationships” and (F) any shares of Common Stock issued or options to
purchase Common Stock granted pursuant to existing employee benefit plans of the Company.
(k) Reporting Requirements. Until the offering of the Securities is complete, the Company
will file all documents required to be filed with the Commission pursuant to the 1934 Act within
the time periods required by the 1934 Act and the 1934 Act Regulations.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including (i) the preparation, printing, delivery to the Initial
Purchasers and any filing of the Disclosure Package or any Offering Memorandum (including financial
statements and any schedules or exhibits and any document incorporated therein by reference) and of
each amendment or supplement thereto or of any Supplemental Offering Material, (ii) the
preparation, printing and delivery to the Initial Purchasers of this Agreement, any Agreement among
Initial Purchasers, the Indenture and such other documents as may be required in connection with
the offering, purchase, sale, issuance or delivery of the Securities, (iii) the preparation,
issuance and delivery of the certificates for the Securities to the Initial Purchasers, including
any transfer taxes, any stamp or other duties payable upon the sale, issuance and delivery of the
Securities to the Initial Purchasers and any charges of DTC in connection therewith, (iv) the fees
and disbursements of the Company’s counsel, accountants and other advisors, (v) the qualification
of the Securities under securities laws in accordance with the provisions of Section 3(d) hereof,
including filing fees and the reasonable fees and disbursements of counsel for the Initial
Purchasers in connection therewith and in connection] with the preparation of the Blue Sky Survey,
any supplement thereto, (vi) the fees and expenses of the Trustee, including the fees and
disbursements of counsel for the Trustee in connection with the Indenture and the Securities and
(vii) any fees payable in connection with the rating of the Securities.
(b) Termination of Agreement. If this Agreement is terminated by the Representatives in
accordance with the provisions of Section 5(j) or Section 10(a)(i) hereof, the Company shall
reimburse the Initial Purchasers for all of their reasonably incurred out-of-pocket expenses,
including the reasonable fees and disbursements of counsel for the Initial Purchasers.
SECTION 5. Conditions of Initial Purchasers’ Obligations. The obligations of the
several Initial Purchasers hereunder are subject to the accuracy of the representations and
warranties of the Company contained in Section 1 hereof or in certificates of any officer of the
Company or any of its subsidiaries delivered pursuant to the provisions hereof, to the performance
by the Company of its covenants and other obligations hereunder, and to the following further
conditions:
(a) Opinion of Counsel for Company. At Closing Time, the Representatives shall have received
the favorable opinion, dated as of Closing Time, of each of Faegre & ▇▇▇▇▇▇ LLP, counsel for the
Company, ▇▇▇▇▇ Ballantince LLP, special tax counsel to the Company, and ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.,
General Counsel of the Company, or ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq., Corporate Counsel of the Company,
each in form and substance satisfactory to counsel for the Initial Purchasers, together with signed
or reproduced copies of such letter for each of the other Initial Purchasers to the effect set
forth in Exhibit A-1, Exhibit A-2 and Exhibit A-3, respectively, hereto.
(b) Opinion of Counsel for Initial Purchasers. At Closing Time, the Representatives shall
have received the favorable opinion, dated as of Closing Time, of ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇ & Maw LLP,
counsel for the Initial Purchasers, together with signed or reproduced copies of such letter for
each of the other Initial Purchasers with respect to the matters set forth in (i) — (v) and (x)
and the last paragraph of Exhibit A-1 hereto. In giving such opinion such counsel may rely, as to
all matters governed by the laws of jurisdictions other than the law of the State of New York and
the federal law of the United States and the General Corporation Law of the State of Delaware, upon
the opinions of counsel satisfactory to the Representatives. Such counsel may also state that,
insofar as such opinion involves factual matters, they have relied, to the extent they deem proper,
upon certificates of officers of the Company and its subsidiaries and certificates of public
officials.
(c) Officers’ Certificate. At Closing Time, there shall not have been, since the date hereof
or since the date as of which information is given in the Final Offering Memorandum (exclusive of
any amendments or supplements thereto subsequent to the date of this Agreement), any Material
Adverse Change, and the Representatives shall have received a certificate of the Chairman of the
Board, the President or any Vice President and the principal financial or accounting officer of the
Company, dated as of the Closing Time, to the effect that the signers of such certificate have
carefully examined the Disclosure Package and the Final Offering Memorandum, any supplements to the
Final Offering Memorandum and this Agreement and that to their knowledge:
(i) the representations and warranties of the Company in this Agreement are true and
correct in all material respects on and as of the Closing Time with the same effect as if
made on the Closing Time and the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at or prior to the Closing Time;
and
(ii) since the date of the most recent financial statements included or incorporated by
reference in the Disclosure Package and the Final Offering Memorandum (exclusive of any
supplement thereto), there has been no Material Adverse Change, except
as set forth or contemplated in the Disclosure Package and the Final Offering Memorandum
(exclusive of any supplement thereto).
(d) Accountants’ Comfort Letter. At the time of the execution of this Agreement, the
Representatives shall have received from Ernst & Young LLP a letter dated such date, in form and
substance satisfactory to the Representatives, together with signed or reproduced copies of such
letter for each of the other Initial Purchasers containing statements and information of the type
ordinarily included in accountants’ “comfort letters” to Initial Purchasers with respect to the
financial statements and certain financial information contained in the Offering Memorandum.
(e) Bring-down Comfort Letter. At Closing Time, the Representatives shall have received from
Ernst & Young LLP a letter, dated as of Closing Time, to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (d) of this Section, except that the
specified date referred to shall be a date not more than three business days prior to Closing Time.
(f) Maintenance of Rating. At Closing Time, the Securities shall be rated at least A2 by
Moody’s and A by S&P, and the Company shall have delivered to the Representatives a letter dated
Closing Time, from each such rating agency, or other evidence satisfactory to the Representatives,
confirming that the Securities have such ratings; and subsequent to the Applicable Time, there
shall not have been any decrease in the rating of any of the Company’s debt securities by any
“nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g)
under the 1933 Act) and no such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of any of the Company’s
debt securities.
(g) Approval of Listing. At Closing Time, the Common Stock issuable on conversion thereof
shall have been approved for listing on the New York Stock Exchange, subject only to official
notice of issuance.
(h) Lock-up Agreements. At the date of this Agreement, the Representatives shall have
received an agreement substantially in the form of Exhibit B hereto signed by the persons listed on
Schedule D hereto.
(j) Additional Documents. At Closing Time, counsel for the Initial Purchasers shall have been
furnished with such documents and opinions as they may reasonably request for the purpose of
enabling them to pass upon the issuance and sale of the Securities as herein contemplated, or in
order to evidence the accuracy of any of the representations or warranties, or the fulfillment of
any of the conditions, herein contained; and all proceedings taken by the Company in connection
with the issuance and sale of the Securities as herein contemplated shall be satisfactory in form
and substance to the Representatives and counsel for the Initial Purchasers.
(k) Termination of Agreement. If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement, the obligations of the several
Initial Purchasers to purchase the relevant Securities, may be terminated by the Representatives
by notice to the Company at any time at or prior to Closing Time, and such termination shall be
without liability of any party to any other party except as provided in Section 4 and except
that Sections 1, 7, 8 and 9 shall survive any such termination and remain in full force and effect.
SECTION 6. Subsequent Offers and Resales of the Securities.
(a) Offer and Sale Procedures. Each of the Initial Purchasers and the Company hereby
establish and agree to observe the following procedures in connection with the offer and sale of
the Securities:
(i) Offers and Sales. Offers and sales of the Securities shall be made to such
persons and in such manner as is contemplated by the Offering Memorandum.
(ii) No General Solicitation. No general solicitation or general advertising
(within the meaning of Rule 502(c) under the 1933 Act) will be used in the United States in
connection with the offering or sale of the Securities.
(iii) Purchases by Non-Bank Fiduciaries. In the case of a non-bank Subsequent
Purchaser of a Security acting as a fiduciary for one or more third parties, each third
party shall, in the judgment of the applicable Initial Purchaser, be an Institutional
Accredited Investor or a “qualified institutional buyer” within the meaning of Rule 144A
under the 1933 Act (a “Qualified Institutional Buyer”) or a non-U.S. person outside the
United States.
(iv) Subsequent Purchaser Notification. Each Initial Purchaser will take
reasonable steps to inform, and cause each of its Affiliates to take reasonable steps to
inform, persons acquiring Securities from such Initial Purchaser or affiliate, as the case
may be, that the Securities (A) have not been and will not be registered under the 1933 Act,
(B) are being sold to them without registration under the 1933 Act in reliance on Rule 144A
and (C) may not be reoffered, resold or otherwise transferred except (1) to the Company, (2)
outside the United States in accordance with Regulation S, or (3) inside the United States
in accordance with (x) Rule 144A to a person whom the seller reasonably believes is a
Qualified Institutional Buyer that is purchasing such Securities for its own account or for
the account of a Qualified Institutional Buyer to whom notice is given that the offer, sale
or transfer is being made in reliance on Rule 144A or (y) pursuant to another available
exemption from registration under the 1933 Act.
(v) Minimum Principal Amount. No sale of the Securities to any one Subsequent
Purchaser will be for less than U.S. $100,000 principal amount and no Security will be
issued in a smaller principal amount. If the Subsequent Purchaser is a non-bank fiduciary
acting on behalf of others, each person for whom it is acting must purchase at least U.S.
$100,000 principal amount of the Securities.
(b) Covenants of the Company. The Company covenants with each Initial Purchaser as follows:
(i) Integration. The Company agrees that it will not and will cause its
Affiliates not to, directly or indirectly, solicit any offer to buy, sell or make any offer
or sale of, or otherwise negotiate in respect of, securities of the Company of any class if,
as
a result of the doctrine of “integration” referred to in Rule 502 under the 1933 Act,
such offer or sale would render invalid (for the purpose of (i) the sale of the offered
Securities by the Company to the Initial Purchasers, (ii) the resale of the offered
Securities by the Initial Purchasers to Subsequent Purchasers or (iii) the resale of the
offered Securities by such Subsequent Purchasers to others) the exemption from the
registration requirements of the 1933 Act provided by Section 4(2) thereof or by Rule 144A
thereunder or otherwise.
(ii) Rule 144A Information. The Company agrees that, in order to render the
offered Securities eligible for resale pursuant to Rule 144A under the 1933 Act, while any
of the offered Securities remain outstanding, it will make available, upon request, to any
holder of offered Securities or prospective purchasers of Securities the information
specified in Rule 144A(d)(4) under the 1933 Act, unless the Company furnishes information to
the Commission pursuant to Section 13 or 15(d) of the 1934 Act.
(iii) Restriction on Repurchases. Until the expiration of two years after the
original issuance of the offered Securities, the Company will not, and will cause its
Affiliates not to, resell any offered Securities which are “restricted securities” (as such
term is defined in Rule 144(a)(3) under the 1933 Act), whether as beneficial owner or
otherwise (except as agent acting as a securities broker on behalf of and for the account of
customers in the ordinary course of business in unsolicited broker’s transactions).
(c) Qualified Institutional Buyer. Each Initial Purchaser severally and not jointly
represents and warrants to, and agrees with, the Company that it is a Qualified Institutional Buyer
and an “accredited investor” within the meaning of Rule 501(a) under the 1933 Act (an “Accredited
Investor”).
SECTION 7. Indemnification.
(a) Indemnification of Initial Purchasers. The Company agrees to indemnify and hold harmless
each Initial Purchaser, its Affiliates, its selling agents and each person, if any, who controls
any Initial Purchaser within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act as follows:
(i) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, arising out of any untrue statement or alleged untrue statement of a material fact
contained in any preliminary offering memorandum, the Disclosure Package, the Final Offering
Memorandum (or any amendment or supplement thereto) or any Supplemental Offering Materials,
or the omission or alleged omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or threatened, or
of any claim whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to
Section 7(d) below) any such settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including the fees and
disbursements of counsel chosen by the Representatives), reasonably incurred in
investigating, preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid under (i) or (ii)
above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue statement or omission
or alleged untrue statement or omission made in reliance upon and in conformity with written
information furnished to the Company by any Initial Purchaser through the Representatives expressly
for use in any preliminary offering memorandum, the Disclosure Package, the Final Offering
Memorandum (or any amendment or supplement thereto) or in any Supplemental Offering Materials.
(b) Indemnification of Company. Each Initial Purchaser severally agrees to indemnify and hold
harmless the Company and each person, if any, who controls the Company within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a) of this Section,
as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements
or omissions, made in any preliminary offering memorandum, the Disclosure Package, the Final
Offering Memorandum or any Supplemental Offering Materials in reliance upon and in conformity with
written information furnished to the Company by such Initial Purchaser through the Representatives
expressly for use therein. The Company acknowledges that the following statements set forth under
the heading “Plan of Distribution” in the Disclosure Package and the Final Offering Memorandum
constitute the only information furnished in writing by or on behalf of the several Initial
Purchasers for inclusion in any preliminary offering memorandum, the Disclosure Package, the Final
Offering Memorandum or any Supplemental Offering Materials: (i) the list of Initial Purchasers and
their respective participation in the sale of the Securities, (ii) the second and third sentence of
the second paragraph; (iii) the third sentence under the subsection entitled “—New Issue of Notes”
related to market making and (iv) the two paragraphs under the subcaption “—Price Stabilization
and Short Positions.”
(c) Actions against Parties; Notification. Each indemnified party shall give notice as
promptly as reasonably practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party
shall not relieve such indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement. In the case of parties
indemnified pursuant to Section 7(a) above, counsel to the indemnified parties shall be selected by
the Representatives, and, in the case of parties indemnified pursuant to Section 7(b) above,
counsel to the indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not (except
with the consent of the indemnified party) also be counsel to the indemnified party. In no event
shall the indemnifying parties be liable for fees and expenses of more than one counsel (in
addition to any local counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. No indemnifying party shall, without
the prior written consent of the indemnified parties, settle or compromise or consent to the entry
of any judgment with respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section or Section 8 hereof (whether or
not the indemnified parties are actual or potential parties thereto), unless such settlement,
compromise or consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to act by or on behalf
of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature
contemplated by Section 7(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the aforesaid request,
(ii) such indemnifying party shall have received notice of the terms of such settlement at least 30
days prior to such settlement being entered into and (iii) such indemnifying party shall not have
reimbursed such indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 8. Contribution. If the indemnification provided for in Section 7 hereof is
for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of
any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying
party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and
expenses incurred by such indemnified party, as incurred, (i) in such proportion as is appropriate
to reflect the relative benefits received by the Company on the one hand and the Initial Purchasers
on the other hand from the offering of the Securities pursuant to this Agreement or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and of the Initial Purchasers on the other hand in
connection with the statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the Initial Purchasers on
the other hand in connection with the offering of the Securities pursuant to this Agreement shall
be deemed to be in the same respective proportions as the total net proceeds from the offering of
the Securities pursuant to this Agreement (before deducting expenses) received by the Company and
the total underwriting discount received by the Initial Purchasers, bear to the aggregate initial
offering price of the Securities.
The relative fault of the Company on the one hand and the Initial Purchasers on the other hand
shall be determined by reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Initial Purchasers and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Company and the Initial Purchasers agree that it would not be just and equitable if
contribution pursuant to this Section were determined by pro rata allocation (even if the Initial
Purchasers were treated as one entity for such purpose) or by any other method of allocation which
does not take account of the equitable considerations referred to above in this Section. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified
party and referred to above in this Section shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or
omission or alleged omission.
Notwithstanding the provisions of this Section, no Initial Purchaser shall be required to
contribute any amount in excess of the amount by which the total price at which the Securities
purchased and sold by it hereunder exceeds the amount of any damages which such Initial Purchaser
has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
1933 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section, each person, if any, who controls an Initial Purchaser within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and each Initial
Purchaser’s Affiliates and selling agents shall have the same rights to contribution as such
Initial Purchaser, and each person, if any, who controls the Company within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as the
Company. The Initial Purchasers’ respective obligations to contribute pursuant to this Section are
several in proportion to the principal amount of Securities set forth opposite their respective
names in Schedule A hereto and not joint.
SECTION 9. Representations, Warranties and Agreements to Survive. All
representations, warranties and agreements contained in this Agreement or in certificates of
officers of the Company or any of its subsidiaries submitted pursuant hereto shall remain operative
and in full force and effect, regardless of (i) any investigation made by or on behalf of any
Initial Purchaser or its Affiliates or selling agents, any person controlling any Initial
Purchaser, its officers or directors or any person controlling the Company and (ii) delivery of and
payment for the Securities.
SECTION 10. Termination of Agreement.
(a) Termination; General. The Representatives may terminate this Agreement, by notice to the
Company, at any time at or prior to Closing Time (i) if there has been, since the time of execution
of this Agreement or since the date as of which information is given in the Preliminary Offering
Memorandum, the Disclosure Package or the Final Offering Memorandum (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement), any Material Adverse Change, or (ii)
if there has occurred any material adverse change in the financial markets in the United States or
the international financial markets, any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the effect of which is such
as to make it, in the judgment of the Representatives, impracticable or inadvisable to market the
Securities or to enforce contracts for the sale of the Securities, or (iii) if trading in any
securities of the Company has been suspended or materially limited by the Commission or the New
York Stock Exchange, or if trading generally on the American Stock Exchange or the New York Stock
Exchange or in the NASDAQ System has been suspended or materially limited, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices have been required, by any of said
exchanges or by such system or by order of the Commission, the National Association of Securities
Dealers, Inc. or any other governmental authority, or (iv) a material disruption has occurred in
commercial banking or securities settlement or clearance services in the United States or (v) if a
banking moratorium has been declared by either Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section, such termination
shall be without liability of any party to any other party except as provided in Section 4 hereof,
and provided further that Sections 1, 7, 8 and 9 shall survive such termination and remain in full
force and effect.
SECTION 11. Default by One or More of the Initial Purchasers. If one or more of the
Initial Purchasers shall fail at Closing Time to purchase the Securities which it or they are
obligated to purchase under this Agreement (the “Defaulted Securities”), the Representatives shall
have the right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Initial Purchasers, or any other initial purchasers, to purchase all, but not less
than all, of the Defaulted Securities in such amounts as may be agreed upon and upon the terms
herein set forth; if, however, the Representatives shall not have completed such arrangements
within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the aggregate
principal amount of the Securities to be purchased hereunder, each of the
non-defaulting Initial Purchasers shall be obligated, severally and not jointly, to
purchase the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations of all
non-defaulting Initial Purchasers, or
(b) if the number of Defaulted Securities exceeds 10% of the aggregate
principal amount of the Securities to be purchased hereunder, this
Agreement shall terminate without liability on the part of any non-defaulting
Initial Purchaser.
No action taken pursuant to this Section shall relieve any defaulting Initial Purchaser from
liability in respect of its default.
In the event of any such default which does not result in a termination of this Agreement,
either the Representatives or the Company shall have the right to postpone Closing Time for a
period not exceeding seven days in order to effect any required changes in the Offering Memorandum
or in any other documents or arrangements. As used herein, the term “Initial Purchaser” includes
any person substituted for an Initial Purchaser under this Section.
SECTION 12. Tax Disclosure. Notwithstanding any other provision of this Agreement,
immediately upon commencement of discussions with respect to the transactions contemplated hereby,
the Company (and each employee, representative or other agent of the Company) may disclose to any
and all persons, without limitation of any kind, the tax treatment and tax structure of the
transactions contemplated by this Agreement and all materials of any kind (including opinions or
other tax analyses) that are provided to the Company relating to such tax treatment and tax
structure. For purposes of the foregoing, the term “tax treatment” is the purported or claimed
federal income tax treatment of the transactions contemplated hereby, and the term “tax structure”
includes any fact that may be relevant to understanding the purported or claimed federal income tax
treatment of the transactions contemplated hereby.
SECTION 13. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by any standard form
of telecommunication. Notices to the Initial Purchasers shall be directed to the Representatives
at 4 World Financial Center, New York, New York 10080, attention of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, notices to
the Company shall be directed to it at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇, attention of Treasurer.
SECTION 14. No Advisory or Fiduciary Relationship. The Company acknowledges and
agrees that (a) the purchase and sale of the Securities pursuant to this Agreement, including the
determination of the offering price of the Securities and any related discounts and commissions, is
an arm’s-length commercial transaction between the Company, on the one hand, and the several
Initial Purchasers, on the other hand, (b) in connection with the offering contemplated hereby and
the process leading to such transaction each Initial Purchaser is and has been acting solely as a
principal and is not the agent or fiduciary of the Company, or its stockholders, creditors,
employees or any other party, (c) no Initial Purchaser has assumed or will assume an advisory or
fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby
or the process leading thereto (irrespective of whether such Initial Purchaser has advised or is
currently advising the Company on other matters) and no Initial Purchaser has any obligation to the
Company with respect to the offering contemplated hereby except the obligations expressly set forth
in this Agreement, (d) the Initial Purchasers and their respective affiliates may be engaged in a
broad range of transactions that involve interests that differ from those of each of the Company,
and (e) the Initial Purchasers have not provided any legal, accounting, regulatory or tax advice
with respect to the offering contemplated hereby and
the Company has consulted its own legal, accounting, regulatory and tax advisors to the extent
it deemed appropriate.
SECTION 15. Integration. This Agreement supersedes all prior agreements and
understandings (whether written or oral) between the Company and the Initial Purchasers, or any of
them, with respect to the subject matter hereof.
SECTION 16. Parties. This Agreement shall inure to the benefit of and be binding upon
the Initial Purchasers and the Company and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any person, firm or
corporation, other than the Initial Purchasers and the Company and their respective successors and
the controlling persons and officers and directors referred to in Sections 7 and 8 and their heirs
and legal representatives, any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the Initial Purchasers and the
Company and their respective successors, and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from any Initial Purchaser shall be deemed to be a
successor by reason merely of such purchase.
SECTION 17. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 18. TIME. TIME SHALL BE OF THE ESSENCE OF THIS AGREEMENT. EXCEPT AS
OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 19. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same Agreement.
SECTION 20. Effect of Headings. The Section headings herein are for convenience only
and shall not affect the construction hereof.
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts,
will become a binding agreement between the Initial Purchasers and the Company in accordance with
its terms.
| Very truly yours, ▇▇▇▇▇▇-▇▇▇▇▇▇▇-MIDLAND COMPANY |
||||
| By | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||
| Title: | Vice President & Treasurer | |||
| CONFIRMED AND ACCEPTED, | ||||||
| as of the date first above written: | ||||||
| CITIGROUP GLOBAL MARKETS INC. ▇.▇. ▇▇▇▇▇▇ SECURITIES INC. ▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO. ▇▇▇▇▇▇▇ LYNCH, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED |
||||||
BY:
|
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED | |||||
By:
|
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇ | |||||
| Authorized Signatory | ||||||
| For itself and as Representatives of the other Initial Purchasers named in Schedule A hereto. | ||||||
SCHEDULE A
| Principal | ||||
| Amount of | ||||
| Name of Initial Purchaser | Securities | |||
Citigroup Global Markets Inc. |
$ | 287,500,000 | ||
▇.▇. ▇▇▇▇▇▇ Securities Inc. |
287,500,000 | |||
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated |
287,500,000 | |||
Banc of America Securities LLC |
47,917,000 | |||
Barclays Capital Inc. |
47,917,000 | |||
BNP Paribas Securities Corp. |
47,917,000 | |||
Deutsche Bank Securities Inc. |
47,917,000 | |||
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. |
47,916,000 | |||
HSBC Securities (USA) Inc. |
47,916,000 | |||
Total |
$ | 1,150,000,000 | ||
Sch A-1
SCHEDULE B
▇▇▇▇▇▇-▇▇▇▇▇▇▇-MIDLAND COMPANY
$1,150,000,000 0.875% Convertible Senior Notes due 2014
$1,150,000,000 0.875% Convertible Senior Notes due 2014
1. The initial public offering price of the Securities shall be 100.00% of the principal
amount thereof, plus accrued interest, if any, from the date of issuance.
2. The purchase price to be paid by the Initial Purchasers for the Securities shall be 98.65%
of the principal amount thereof.
3. The interest rate on the Securities shall be 0.875% per annum.
4. The Securities shall be convertible on the terms set forth in the Indenture at an initial
conversion rate of 22.8343 shares per $1,000 principal amount of Securities (equivalent to a
conversion price of approximately $43.79 per share).
5. If a change in control occurs and a holder elects to convert in connection with such event,
the conversion rate will be increased by a number of shares. The number of additional shares will
be determined by reference to the following table and is based on the date on which such change in
control becomes effective and the price paid per share of common stock on the effective date:
| Stock Price on | Make-Whole Premium Upon Fundamental Change (Increase in Applicable Conversion Rate) | ||||||||||||||||||||||||||||||||
| Effective Date | 2/22/2007 | 2/15/2008 | 2/15/2009 | 2/15/2010 | 2/15/2011 | 2/15/2012 | 2/15/2013 | 2/15/2014 | |||||||||||||||||||||||||
$35.75 |
5.1377 | 5.1377 | 5.1377 | 5.1377 | 5.1377 | 5.1377 | 5.1377 | 5.1377 | |||||||||||||||||||||||||
$37.50 |
4.5937 | 4.7056 | 4.7896 | 4.8296 | 4.7941 | 4.6410 | 4.2890 | 3.8324 | |||||||||||||||||||||||||
$40.00 |
3.9353 | 4.0041 | 4.0409 | 4.0285 | 3.9335 | 3.7086 | 3.2436 | 2.1657 | |||||||||||||||||||||||||
$45.00 |
2.9373 | 2.9458 | 2.9188 | 2.8394 | 2.6743 | 2.3744 | 1.8167 | 0.0000 | |||||||||||||||||||||||||
$50.00 |
2.2349 | 2.2079 | 2.1453 | 2.0327 | 1.8402 | 1.5267 | 0.9936 | 0.0000 | |||||||||||||||||||||||||
$55.00 |
1.7291 | 1.6817 | 1.6012 | 1.4755 | 1.2806 | 0.9862 | 0.5332 | 0.0000 | |||||||||||||||||||||||||
$60.00 |
1.3575 | 1.2992 | 1.2114 | 1.0846 | 0.9003 | 0.6401 | 0.2816 | 0.0000 | |||||||||||||||||||||||||
$65.00 |
1.0795 | 1.0165 | 0.9278 | 0.8065 | 0.6392 | 0.4180 | 0.1465 | 0.0000 | |||||||||||||||||||||||||
$70.00 |
0.8683 | 0.8045 | 0.7186 | 0.6061 | 0.4579 | 0.2741 | 0.0741 | 0.0000 | |||||||||||||||||||||||||
$75.00 |
0.7061 | 0.6432 | 0.5623 | 0.4602 | 0.3307 | 0.1804 | 0.0369 | 0.0000 | |||||||||||||||||||||||||
$100.00 |
0.2838 | 0.2387 | 0.1867 | 0.1303 | 0.0701 | 0.0252 | 0.0027 | 0.0000 | |||||||||||||||||||||||||
$150.00 |
0.0736 | 0.0544 | 0.0368 | 0.0214 | 0.0096 | 0.0029 | 0.0009 | 0.0000 | |||||||||||||||||||||||||
If the price paid per share on the effective date exceeds $150.00 per share, subject to
adjustment, no adjustment to the applicable conversion rate will be made.
If the price paid per share on the effective date is less than $35.75 per share, subject to
adjustment, no adjustment to the applicable conversion rate will be made.
Sch B-1
SCHEDULE C
▇▇▇▇▇▇-▇▇▇▇▇▇▇-Midland Company
(ADM/NYSE)
(ADM/NYSE)
Offering Size: $1,150,000,000
144A
Convertible Senior Notes Due 2014 Terms:
Offering Price: $1,000.00 per note (100%)
Maturity: February 15, 2014
Interest Rate: 0.875% payable semi-annually in arrears in cash
Last Sale (2/15/07): $35.75
Conversion Price: Approximately $43.79
Conversion Premium: 22.50%
Conversion Rate: 22.8343
Conversion Rate Cap: 27.9720
Conversion Trigger Price: $61.31
Interest Payment Dates: February 15 and August 15, beginning August 15, 2007
Offering Price: $1,000.00 per note (100%)
Maturity: February 15, 2014
Interest Rate: 0.875% payable semi-annually in arrears in cash
Last Sale (2/15/07): $35.75
Conversion Price: Approximately $43.79
Conversion Premium: 22.50%
Conversion Rate: 22.8343
Conversion Rate Cap: 27.9720
Conversion Trigger Price: $61.31
Interest Payment Dates: February 15 and August 15, beginning August 15, 2007
Make Whole Premium upon a Change in Control: If a change in control occurs and a holder elects to
convert in connection with such event, the conversion rate will be increased by a number of shares.
The number of additional shares will be determined by reference to the following table and is
based on the date on which such change in control becomes effective and the price paid per share of
common stock on the effective date:
convert in connection with such event, the conversion rate will be increased by a number of shares.
The number of additional shares will be determined by reference to the following table and is
based on the date on which such change in control becomes effective and the price paid per share of
common stock on the effective date:
| Stock Price on | Make-Whole Premium Upon Fundamental Change (Increase in Applicable Conversion Rate) | ||||||||||||||||||||||||||||||||
| Effective Date | 2/22/2007 | 2/15/2008 | 2/15/2009 | 2/15/2010 | 2/15/2011 | 2/15/2012 | 2/15/2013 | 2/15/2014 | |||||||||||||||||||||||||
$35.75 |
5.1377 | 5.1377 | 5.1377 | 5.1377 | 5.1377 | 5.1377 | 5.1377 | 5.1377 | |||||||||||||||||||||||||
$37.50 |
4.5937 | 4.7056 | 4.7896 | 4.8296 | 4.7941 | 4.6410 | 4.2890 | 3.8324 | |||||||||||||||||||||||||
$40.00 |
3.9353 | 4.0041 | 4.0409 | 4.0285 | 3.9335 | 3.7086 | 3.2436 | 2.1657 | |||||||||||||||||||||||||
$45.00 |
2.9373 | 2.9458 | 2.9188 | 2.8394 | 2.6743 | 2.3744 | 1.8167 | 0.0000 | |||||||||||||||||||||||||
$50.00 |
2.2349 | 2.2079 | 2.1453 | 2.0327 | 1.8402 | 1.5267 | 0.9936 | 0.0000 | |||||||||||||||||||||||||
$55.00 |
1.7291 | 1.6817 | 1.6012 | 1.4755 | 1.2806 | 0.9862 | 0.5332 | 0.0000 | |||||||||||||||||||||||||
$60.00 |
1.3575 | 1.2992 | 1.2114 | 1.0846 | 0.9003 | 0.6401 | 0.2816 | 0.0000 | |||||||||||||||||||||||||
$65.00 |
1.0795 | 1.0165 | 0.9278 | 0.8065 | 0.6392 | 0.4180 | 0.1465 | 0.0000 | |||||||||||||||||||||||||
$70.00 |
0.8683 | 0.8045 | 0.7186 | 0.6061 | 0.4579 | 0.2741 | 0.0741 | 0.0000 | |||||||||||||||||||||||||
$75.00 |
0.7061 | 0.6432 | 0.5623 | 0.4602 | 0.3307 | 0.1804 | 0.0369 | 0.0000 | |||||||||||||||||||||||||
$100.00 |
0.2838 | 0.2387 | 0.1867 | 0.1303 | 0.0701 | 0.0252 | 0.0027 | 0.0000 | |||||||||||||||||||||||||
$150.00 |
0.0736 | 0.0544 | 0.0368 | 0.0214 | 0.0096 | 0.0029 | 0.0009 | 0.0000 | |||||||||||||||||||||||||
If the price paid per share on the effective date exceeds $150.00 per share, subject to adjustment,
no adjustment to the applicable conversion rate will be made.
If the price paid per share on the effective date is less than $35.75 per share, subject to
adjustment, no adjustment to the applicable conversion rate will be made.
no adjustment to the applicable conversion rate will be made.
If the price paid per share on the effective date is less than $35.75 per share, subject to
adjustment, no adjustment to the applicable conversion rate will be made.
Sch C-1
Net Proceeds Before Expenses: $1.134 billion
Net Proceeds Applied for the Convertible Note Hedge and Warrant Transactions: $129 million
Shares Underlying Convertible Note Hedge and Warrant: 26,259,445
Exercise Price of Sold Warrant: $62.56
Net Proceeds Applied for the Convertible Note Hedge and Warrant Transactions: $129 million
Shares Underlying Convertible Note Hedge and Warrant: 26,259,445
Exercise Price of Sold Warrant: $62.56
Trade Date: 2/15/07
Settlement Date (T+4): 2/22/07
144A CUSIP: ▇▇▇▇▇▇▇▇▇
Settlement Date (T+4): 2/22/07
144A CUSIP: ▇▇▇▇▇▇▇▇▇
Joint-Bookrunners: Citigroup, ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Co-Managers: Banc of America/Barclays/BNP/Deutsche Bank/▇▇▇▇▇▇▇ ▇▇▇▇▇/ HSBC
Co-Managers: Banc of America/Barclays/BNP/Deutsche Bank/▇▇▇▇▇▇▇ ▇▇▇▇▇/ HSBC
Sch C-2
SCHEDULE D
| • | Chief Executive Officer | |
| • | Chief Financial Officer | |
| • | Any director of the Company beneficially owning more than 3,500,000 shares of the Company’s Common Stock |
Sch D-1
Exhibit A-1
FORM OF OPINION OF ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
TO BE DELIVERED PURSUANT TO
SECTION 5(a)
TO BE DELIVERED PURSUANT TO
SECTION 5(a)
(i) the Company has been duly organized and is validly existing and in good standing under the
laws of the State of Delaware; the Company has full corporate power and authority to conduct its
business as described in the Disclosure Package and the Final Offering Memorandum;
(ii) this Agreement has been duly authorized, executed and delivered by the Company;
(iii) the Indenture has been duly authorized, executed and delivered by the Company and
constitutes a valid and legally binding instrument, enforceable in accordance with its terms
(subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors’ rights and to general equity principles);
(iv) the Securities have been duly executed, issued and delivered by the Company and
constitute valid and legally binding obligations of the Company entitled to the benefits provided
by the Indenture and are enforceable in accordance with their terms (subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general applicability relating to or
affecting creditors’ rights and to general equity principles); and the Securities and the
Indenture conform in all material respects to the descriptions thereof in the Disclosure Package
and the Final Offering Memorandum;
(v) the Registration Rights Agreement has been duly authorized, executed and delivered by the
Company and constitutes the legal, valid, binding and enforceable instrument of the Company
(subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors’ rights generally from time to time in effect and to
general principles of equity);
(vi) the Common Stock conforms as to legal matters to all statements relating thereto
contained or incorporated by reference in the Disclosure Package and the Final Offering Memorandum
and such description conforms as to legal matters to the rights set forth in the instruments
defining the same; the shares of issued and outstanding capital stock of the Company have been duly
authorized and validly issued and are fully paid and non-assessable; upon issuance and delivery of
the Securities in accordance with this Agreement and the Indenture, the Securities will be
convertible at the option of the holder thereof for shares of Common Stock in accordance with the
terms of the Securities and the Indenture; the shares of Common Stock issuable upon conversion of
the Securities have been duly authorized and reserved for issuance upon such conversion by all
necessary corporate action and such shares, when issued upon such conversion, will be validly
issued and will be fully paid and non-assessable;
Ex A-1-1
(vii) neither the issue and sale of the Securities, the execution and delivery of the
Indenture, nor the consummation of any other of the transactions contemplated in this Agreement,
the Indenture or the Registration Rights Agreement nor the fulfillment of the terms thereof will
conflict with, result in a breach of, or constitute a default under the charter or by-laws of the
Company or the terms of any Agreement or Instrument known to such counsel, or any statute or any
order, rule or regulation known to such counsel to be applicable to the Company or any of its
subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator
having jurisdiction over the Company or any of its subsidiaries;
(viii) no consent, approval, authorization, order, registration or qualification of or with
any court or governmental agency or body is required for the due authorization, execution and
delivery by the Company of this Agreement or for the performance by the Company of the transactions
contemplated under the Disclosure Package and the Final Offering Memorandum, this Agreement, the
Registration Rights Agreement or the Indenture, except such as have already been made, obtained or
rendered, as applicable, such as may be required under state securities laws and, in the case of
the Registration Rights Agreement, such as will be obtained under the 1933 Act and the 1939 Act;
(ix) the Company is not and, after giving effect to the offering and sale of the Securities
and the application of the proceeds thereof as described in the Disclosure Package and the Final
Offering Memorandum, will not be an “investment company” as defined under the 1940 Act;
(x) subject to compliance by the Initial Purchasers with the representations and warranties of
the Initial Purchasers and the procedures set forth in Section 6 hereof, it is not necessary in
connection with the offer, sale and delivery of the offered Securities to the Initial Purchasers
and to each Subsequent Purchaser in the manner contemplated by this Agreement and the Offering
Memorandum to register the Securities under the 1933 Act or to qualify the Indenture under the 1939
Act; and
(x) the documents incorporated by reference in the Offering Memorandum (other than the
financial statements and supporting schedules and other financial and statistical data therein, as
to which no opinion need be rendered), when they were filed with the Commission complied as to form
in all material respects with the requirements of the 1934 Act and the rules and regulations of the
Commission thereunder.
In addition, such counsel shall state that nothing has come to its attention which causes such
counsel to believe that (1) as of the Applicable Time, the Disclosure Package (other than the
financial statements, financial data and supporting schedules included or incorporated by reference
therein, as to each of which such counsel need express no belief) included any untrue statement of
a material fact or omitted to state any material fact necessary in order to make the statements
therein, in the light of circumstances under which they were made, not misleading or (2) that the
Final Offering Memorandum or any amendment or supplement thereto (other than the financial
statements, financial data and supporting schedules included or incorporated by reference therein,
as to each of which such counsel need express no belief), at the time the Offering Memorandum was
issued, at the time any such amended or supplemented Offering
A-1-2
Memorandum was issued or at Closing Time, included or includes an untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading.
A-1-3
Exhibit A-2
FORM OF OPINION OF ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP
TO BE DELIVERED PURSUANT TO
SECTION 5(a)
TO BE DELIVERED PURSUANT TO
SECTION 5(a)
The information in the Disclosure Package and in the Final Offering Memorandum under “Material
United States Income Tax Considerations,” to the extent that it constitutes matters of law,
summaries of legal matters or legal conclusions, has been reviewed by us and is correct in all
material respects and the opinion of such firm set forth under “Material United States Income Tax
Considerations” is confirmed.
Ex A-2-1
Exhibit A-3
FORM OF OPINION OF INTERNAL COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(a)
TO BE DELIVERED PURSUANT TO
SECTION 5(a)
(i) the Company has been duly organized and is validly existing and in good standing under the
laws of the State of Delaware; the Company has full corporate power and authority to conduct its
business as described in the Disclosure Package and the Final Offering Memorandum;
(ii) the Company has been duly qualified as a foreign corporation for the transaction of
business and is in good standing (or the local equivalent) under the laws of each other
jurisdiction in which it owns or leases properties or conducts any business so as to require such
qualification, except where the failure to so qualify or be in good standing would not have a
Material Adverse Effect; and
(iii) to the knowledge of such counsel, there is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency or body, domestic or foreign,
now pending, or, to the knowledge of the Company, threatened, against or affecting the Company or
any of its subsidiaries which is reasonably likely to result in a Material Adverse Effect.
In addition, such counsel shall state that nothing has come to his attention that would lead
him to believe that (1) as of the Applicable Time, the Disclosure Package (other than the financial
statements, financial data and supporting schedules included or incorporated by reference therein,
as to each of which such counsel need express no belief) included any untrue statement of a
material fact or omitted to state any material fact necessary in order to make the statements
therein, in the light of circumstances under which they were made, not misleading or (2) that the
Final Offering Memorandum or any amendment or supplement thereto (other than the financial
statements, financial data and supporting schedules included or incorporated by reference therein,
as to each of which such counsel need express no belief), at the time the Offering Memorandum was
issued, at the time any such amended or supplemented Offering Memorandum was issued or at Closing
Time, included or includes an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
Ex A-3-1
[Form of lock-up pursuant to Section 5(h)]
Exhibit B
•, 2007
Citigroup Global Markets Inc.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
as Representatives of the several Initial Purchasers
c/▇ ▇▇▇▇▇▇▇ Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
4 World Financial Center
New York, New York 10080
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
as Representatives of the several Initial Purchasers
c/▇ ▇▇▇▇▇▇▇ Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
4 World Financial Center
New York, New York 10080
Re: Proposed Offering by ▇▇▇▇▇▇-▇▇▇▇▇▇▇-Midland Company
Dear Sirs:
The undersigned, a stockholder and an officer and/or director of ▇▇▇▇▇▇-▇▇▇▇▇▇▇-Midland
Company, a Delaware corporation (the “Company”), understands that Citigroup Global Markests Inc.,
▇.▇. ▇▇▇▇▇▇ Securities Inc. and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated, as representatives of the several initial purchasers (the “Representatives”) propose
to enter into a Purchase Agreement (the “Purchase Agreement”) with the Company providing for the
offering of $• aggregate principal amount of the Company’s Convertible Senior Notes due • (the
“Securities”). In recognition of the benefit that such an offering will confer upon the
undersigned as a stockholder and an officer and/or director of the Company, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
undersigned agrees with each underwriter to be named in the Purchase Agreement that, during a
period of 60 days from the date of the Purchase Agreement, the undersigned will not, without the
prior written consent of the Representatives, directly or indirectly, (i) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant for the sale of, or otherwise dispose of or lend or transfer any
shares of the Company’s Common Stock, no par value (the “Common Stock”), or any securities
convertible into or exercisable or exchangeable for or repayable with Common Stock, whether now
owned or hereafter acquired by the undersigned or with respect to which the undersigned has or
hereafter acquires the power of disposition, or file, or cause to be filed, any registration
statement under the Securities Act of 1933, as amended, with respect to any of the foregoing
(collectively, the “Lock-Up Securities”) or (ii) enter into any swap or any other agreement or any
transaction that transfers, in whole or in part, directly or indirectly, the economic consequence
of ownership of the Lock-Up Securities or any securities convertible into or exchangeable for
Common Stock, whether any such swap or
Ex. B-1
transaction is to be settled by delivery of Common Stock or other securities, in cash or
otherwise.
Notwithstanding the foregoing, the undersigned may transfer the Lock-Up Securities without the
prior written consent of the Representatives, (i) pursuant to the terms of planned sale
arrangements implemented pursuant to Rule 10b5-1(c) under the Securities Exchange Act of 1934, as
amended, (ii) as a bona fide gift or gifts, provided that the donee or donees thereof agree to be
bound in writing by the restriction set forth herein, or (iii) to any trust for the direct or
indirect benefit of the undersigned or the immediate family of the undersigned, provided that the
trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and
provided further that any such transfer shall not involve a disposition for value and (iv) in an
amount which, together with all other shares of Common Stock sold by officers or directors of the
Company executing letters similar to this letter pursuant to an exception similar to this clause
(iv), does not exceed 3,500,000 shares of Common Stock. For purposes of this lock-up agreement,
“immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than
first cousin. The undersigned also agrees and consents to the entry of stop transfer instructions
with the Company’s transfer agent and registrar against the transfer of the Lock-Up Securities
except in compliance with the foregoing restrictions.
| Very truly yours, | ||||||||
| Signature: | ||||||||
| Print Name: | ||||||||
Ex. B-2