Exhibit 7
"[ ]" indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed separately with
the Securities and Exchange Commission.
EXECUTION VERSION
16,622,932 SHARES OF COMMON STOCK
PLACEMENT AGREEMENT
February 13, 2004
[ ]
[ ]
[ ]
[ ]
Ladies and Gentlemen:
RWE Power AG, a stock corporation organized under the laws of the
Federal Republic of Germany (formerly known as RWE Rheinbraun AG) (the
"Seller") and a wholly-owned subsidiary of RWE AG, confirms its agreement with
[ ] ("[ ]"), whereby [ ] shall act as placement agent for the Seller with
respect to the offering and sale of an aggregate of 16,622,932 shares (the
"Shares") of common stock, par value $0.01 per share, of CONSOL Energy Inc., a
Delaware corporation (the "Company"). The Company confirms its agreement with
[ ] and the Seller as to the matters set forth herein. This placement
agreement is referred to herein as this "Agreement."
The Shares are being offered in a private placement (the "Private
Placement") without being registered under the Securities Act of 1933, as
amended, and the rules and regulations thereunder (the "Securities Act"), in
reliance upon an exemption from the registration requirements of the
Securities Act, to "qualified institutional buyers" (as that term is defined
in Rule 144A under the Securities Act). The Shares are being sold to those
offerees listed on Schedule 1 hereto (the "Purchasers"), each of whom has
entered into the agreements, and made the representations, set forth in the
form of Purchaser Letter attached as Exhibit A hereto (the "Purchaser
Letter"). The Purchaser Letter of each Purchaser has been delivered to each of
the Company and the Seller on the date hereof.
In connection with the offer and sale of the Shares, the Company has
prepared a preliminary private placement memorandum, subject to completion,
dated February 6, 2004 (the "Preliminary Private Placement Memorandum"), and a
final private placement memorandum, dated February 13, 2004 (the "Final
Private Placement Memorandum" and, together with the Preliminary Private
Placement Memorandum, the "Private Placement Memorandum"). The Private
Placement Memorandum sets forth certain information concerning the Company,
the Seller and the Shares. The Company hereby confirms that it has authorized
the use of the Preliminary Private Placement Memorandum and the Final Private
Placement Memorandum in connection with the offering and sale of the Shares.
Any references herein to the Preliminary Private Placement Memorandum and the
Final Private Placement Memorandum shall be deemed to include all annexes and
exhibits thereto and all documents or filings incorporated by reference
therein.
The Purchasers of the Shares will be entitled to the benefits of a
Registration Rights Agreement dated September 23, 2003, between the Company,
on the one hand, and [ ] for the benefit of the Purchasers and others, on the
other hand (the "Registration Rights Agreement"), in the form attached as
Exhibit B hereto.
Each of the Seller, the Company and [ ] agree as follows:
1. Purchase, Sale and Delivery of the Shares:
(a) THE SHARES. On the basis of the agreements herein, but subject
to the conditions herein set forth, the Seller agrees to offer and sell to
each Purchaser, upon the terms herein set forth, the number of Shares set
forth opposite such Purchaser's name on Schedule 1 hereto. The Shares will be
sold by the Seller at a purchase price of $21.75 per share. The purchase price
for the Shares shall be collected by [ ] and held in an [ ] bank account
pending the Closing Date (hereinafter defined). The Seller shall pay [ ] a
placement fee of $0.50 per share for each Share sold by the Seller (the
"Placement Fee").
(b) THE CLOSING DATE. Delivery of the Shares and payment therefor
shall be made at the offices of Cravath, Swaine & ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or such other place as may be agreed to by
the Company, the Seller and [ ], at 11:00 a.m. Eastern time, on February 20,
2004, or such other time and date as the Company, the Seller and [ ] shall
agree (the time and date of such closing are called the "Closing Date").
(c) PAYMENT AND DELIVERY. At the Closing Date, subject to the
satisfaction of the closing conditions set forth herein, [ ] shall pay, or
cause to be paid, to the Seller, by wire transfer of United States Dollars in
immediately available funds, the aggregate purchase price for the Shares, to
the extent such price has been received by [ ] from the Purchasers on or prior
to the Closing Date (net of (i) the Placement Fee, (ii) any applicable
withholding taxes held in escrow as described in paragraph (d) of this Section
and (iii) the Option Excess (as defined below)), against the delivery, to the
extent such net purchase price therefor is paid by [ ] to the Seller, of the
certificates for the Shares to [ ] for each such Purchaser's account. The
certificates for Shares shall be in the names and amounts identified in
Schedule 1 hereto and shall bear legends in accordance with the Private
Placement Memorandum and Purchaser Letters. The parties hereto agree that the
Seller is selling the Shares directly to the Purchasers, and [ ] (i) shall not
purchase any Shares, (ii) shall not use its own funds with respect to the
purchase of the Shares by Purchasers and (iii) assumes no obligation,
responsibility or liability with respect to any failure of any Purchaser to
deliver sufficient funds or otherwise satisfy such Purchaser's obligations.
For purposes hereof, the term "Option Excess" shall mean the amount of the
excess of the purchase price per Share sold hereunder over $17.82, multiplied
by the number of Shares sold hereunder.
(d) WITHHOLDING TAX ESCROW. Pursuant to the terms of the Escrow
Agreement attached hereto as Exhibit C, the escrow agent named therein (the
"Escrow Agent") shall hold in escrow 10% of the aggregate applicable gross
purchase price for the Shares being sold by the Seller (the "Escrow Amount")
until such date (the "Determination Date") as the United States Internal
Revenue Service (the "IRS") issues a final determination (the "Determination")
with respect to the Seller's application for a withholding certificate
allowing for the reduction or
2
elimination of U.S. withholding tax on the sale of the Shares. By five
business days following receipt by the Escrow Agent of a copy of the
Determination from Seller, the Escrow Agent shall, on behalf of the
Purchasers, pay to the IRS that portion of the Escrow Amount equal to the
amount of withholding set forth in the Determination, if any, and shall pay
the remainder of the Escrow Amount, if any, to the Seller by wire transfer of
United States dollars in immediately available funds.
2. REPRESENTATIONS AND WARRANTIES OF THE SELLER: The Seller
represents and warrants to [ ] and the Company that, as of the date of this
Agreement:
(a) To the extent that any statements or omissions made in the
Preliminary Private Placement Memorandum are made in reliance upon and in
conformity with written information furnished to the Company by the Seller
expressly for use therein, the Preliminary Private Placement Memorandum, on
the date thereof, did not contain any untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading. To
the extent that any statements or omissions made in the Final Private
Placement Memorandum are made in reliance upon and in conformity with written
information furnished to the Company by the Seller expressly for use therein,
on the date hereof, the Final Private Placement Memorandum does not (and any
amendment or supplement thereto, at the date thereof, will not), contain any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The Company, [ ] and the Seller
hereby confirm and agree that the only information furnished to the Company by
the Seller expressly for use in the Private Placement Memorandum is (i) the
statement that the Shares constitute all of the Common Stock owned by the
Seller set forth in the first sentence in the first paragraph of the cover
page and in the first sentence of "Private Placement Memorandum Summary -- The
Offering -- Securities Offered" and (ii) the information under the caption
"Escrow of Withholding Taxes."
(b) The Seller has been duly formed and is validly existing and in
good standing under the laws of its jurisdiction of formation.
(c) The Seller has full corporate power and authority to enter into
and perform this Agreement and to consummate the transactions contemplated
herein.
(d) Neither the Seller nor any of its affiliates ("Affiliates") (as
that term is defined in Regulation D under the Securities Act ("Regulation
D")) (other than the Company and its subsidiaries as to whom no
representations or warranties are made hereby) nor any person acting on their
behalf (other than [ ] as to whom no representations or warranties are made
hereby) (i) has, directly or indirectly, made offers or sales of any security,
or solicited offers to buy any security, under circumstances that would
require the registration of the Shares under the Securities Act; or (ii) has
engaged or will engage in any form of general solicitation or general
advertising (within the meaning of Regulation D) in connection with any offer
or sale of the Shares in the United States.
(e) The Seller is the record and beneficial owner of the Shares
being sold by it, free and clear of any encumbrance or claim.
3
(f) The Option Agreement, dated September 23, 2003, among the
Seller, the Company and [ ] (the "Option Agreement"), the Escrow Agreement and
this Agreement have been duly authorized by the Seller. This Agreement and the
Option Agreement have been duly executed and delivered by the Seller, and at
the Closing Date the Escrow Agreement will have been duly executed and
delivered by the Seller. The Option Agreement, constitutes, and at the Closing
Date, the Escrow Agreement will constitute, legal, valid and binding
obligations of the Seller, enforceable in accordance with their respective
terms, except as may be limited or otherwise affected by (a) bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other laws
relating to or affecting the rights of creditors generally, (b) principles of
equity, whether considered at law or equity.
(g) The sale of the Shares and the compliance by the Seller with all
of the provisions of this Agreement, the Option Agreement and the Escrow
Agreement (all such agreements being referred to collectively as the "Seller
Transaction Documents") and the consummation of the transactions herein and
therein contemplated, will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under,
(i) any indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Seller is a party or by which the Seller is bound,
(ii) result in any violation of the provisions of the organizational documents
of the Seller, or (iii) result in any violation of any statute or any order,
rule or regulation of any court or governmental agency or body, domestic or
foreign, having jurisdiction over the Seller, except in the case of clauses
(i), (ii) and (iii), for any such conflict, breach, violation or default which
would not reasonably be expected to have a material adverse effect on the
Seller's ability to consummate the transactions contemplated hereby or on the
enforceability of any documents entered into by the Seller in connection
therewith.
(h) No consent, approval, authorization or order of, or filing,
registration or qualification by the Seller with, any court or governmental
agency or body, domestic or foreign, having jurisdiction over the Seller is
required for the offering and sale of the Shares being sold by the Seller or
the consummation by the Seller of the other transactions contemplated by this
Agreement or the Option Agreement, except such filings as may be required by
the Securities Exchange Act of 1934, as amended (the "Exchange Act").
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY: The Company
represents and warrants to [ ] and the Seller that, as of the date of this
Agreement (except as otherwise stated herein):
(a) The Preliminary Private Placement Memorandum, on the date
thereof, did not contain any untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading. On the date
hereof and on the Closing Date, the Final Private Placement Memorandum did
not, and will not (and any amendment or supplement thereto, at the date
thereof and at the Closing Date, will not), contain any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Company does not make any
representation or warranty as to the information contained in or omitted from
the Preliminary Private Placement Memorandum or the Final Private Placement
Memorandum, or any amendment or supplement
4
thereto, in reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of [ ] or the Seller specifically for
inclusion therein.
(b) The documents annexed to and deemed to be a part of the
Preliminary Private Placement Memorandum and the Final Private Placement
Memorandum, to the extent they were filed with the Securities and Exchange
Commission (the "Commission"), conformed in all material respects to the
requirements of the Exchange Act and the rules and regulations of the
Commission thereunder, when they were filed with the Commission, and when read
together with the other information in the Preliminary Private Placement
Memorandum or the Final Private Placement Memorandum, as the case may be, at
the time issued do not, and as of the Closing Date will not, contain any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(c) Neither the Company nor any of its subsidiaries has sustained,
since the date of the latest financial statements of the Company incorporated
by reference in the Final Private Placement Memorandum or the documents
annexed thereto and deemed to be a part thereof, any material loss or
interference with its business that is material to the business of the Company
and its subsidiaries taken as a whole from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth or
contemplated in the Final Private Placement Memorandum, including any
documents incorporated by reference therein, and, since the respective dates
as of which information is given in the Final Private Placement Memorandum,
there has not been any material change in the capital stock or any material
increase in the consolidated short-term or long-term debt of the Company
(provided, however, that short-term indebtedness has increased from $68,760,000
at December 31, 2003 to approximately $139,812,500 at February 12, 2004, such
increase primarily reflecting previously anticipated, ordinary course of
business fluctuations in the Company's working capital requirements) or
any material adverse change, or any development involving a prospective
material adverse change, in or affecting the business, properties, prospects,
financial condition or results of operations of the Company and its
subsidiaries taken as a whole, or any material transaction entered into by the
Company or any of its subsidiaries, in each case whether or not in the
ordinary course of business, otherwise than as set forth or contemplated in
the Final Private Placement Memorandum.
(d) The Company has been duly incorporated, is validly existing and
is in good standing under the laws of State of Delaware, with corporate power
and authority to own, lease and operate its properties and conduct its
business as described in the Private Placement Memorandum and to enter into
and perform this Agreement and to consummate the transactions contemplated
herein; the Company is duly qualified as a foreign corporation to transact
business and is in good standing in each other jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to qualify or to
be in good standing would not reasonably be expected to have a material
adverse effect on the business, properties, financial condition or earnings of
the Company and its subsidiaries taken as a whole (a "Material Adverse
Effect"); each subsidiary of the Company, other than those subsidiaries which
would not constitute a "significant subsidiary" as defined in Item 1-02(w) of
Regulation S-X (each a "Subsidiary"), is a corporation, partnership, limited
liability company or business trust duly incorporated or organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation or organization, with the requisite
5
entity power and authority to own, lease and operate its properties. Each
Subsidiary is duly qualified as a foreign corporation, partnership, limited
liability company, business trust or other organization to transact business
and is in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to qualify or to be in good
standing would not reasonably be expected to result in a Material Adverse
Effect.
(e) The Company has outstanding equity capitalization as set forth
in "Capitalization and Short-Term Debt" in the Final Private Placement
Memorandum (except for subsequent issuances, if any, pursuant to employee
benefit plans or pursuant to the exercise of convertible securities or
options), and all of the issued shares of capital stock of the Company,
including without limitation the Shares being sold by the Seller, have been
duly and validly authorized and issued and are fully paid and nonassessable;
except as otherwise disclosed in the Final Private Placement Memorandum, all
of the issued and outstanding capital stock or other ownership interests of
each Subsidiary of the Company (i) have been duly authorized and validly
issued, (ii) are fully paid and nonassessable and (iii) except for shares
necessary to qualify directors or to maintain any minimum number of
shareholders required by law, are owned by the Company directly or through
subsidiaries, free and clear of any encumbrance or claim except as described
in the Final Private Placement Memorandum and except for such security
interests, mortgages, pledges, liens, encumbrances, claims or equities that
would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(f) [Intentionally left blank]
(g) The Option Agreement, Registration Rights Agreement and this
Agreement have been duly authorized, executed and delivered by the Company.
This Agreement, the Option Agreement and the Registration Rights Agreement
constitute, legal, valid and binding obligations of the Company, enforceable
in accordance with their respective terms, except as may be limited or
otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other laws relating to or affecting the rights
of creditors generally, (ii) principles of equity, whether considered at law
or equity and (iii) principles of public policy limiting the right to
indemnification.
(h) The Registration Rights Agreement, the Option Agreement and the
Shares conform in all material respects to the descriptions thereof contained
in the Final Private Placement Memorandum.
(i) Assuming the truth and accuracy of the representations and warranties of
the Seller, the Company and [ ] in Sections 2(d), 3(x) and 4(b) of this
Agreement, and compliance by the Company and the Seller with their respective
covenants set forth in Sections 5(a)(iv), 5(a)(v), 5(b)(i) and 5(b)(ii), the
sale of the Shares, and the compliance by the Company, [ ] and the Seller with
all of the provisions of this Agreement and the Registration Rights Agreement
(all such agreements being referred to collectively as the "Transaction
Documents") and the consummation of the transactions herein and therein
contemplated, will not conflict with or result in a breach or violation of any
of the terms or provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any of the
property or assets of the Company or any of its subsidiaries pursuant to the
terms of, (i) any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound or to which
any of the
6
property or assets of the Company or any of its subsidiaries is subject, which
would reasonably be expected to have a Material Adverse Effect or affect the
validity of the Shares or the legal authority of the Company to comply with
the terms of the Transaction Documents; (ii) result in any violation of the
provisions of the organizational documents of the Company or any of its
subsidiaries; or (iii) result in any violation of any statute or any order,
rule or regulation of any court or governmental agency or body, domestic or
foreign, having jurisdiction over the Company or any of its subsidiaries or
any of their respective properties which would reasonably be expected to have
a Material Adverse Effect or affect the validity of the Shares or the legal
authority of the Company to comply with the Transaction Documents.
(j) The sale of the Shares, and the compliance by the Company with
all of the provisions of the Transaction Documents and the consummation of the
transactions contemplated therein, will not result in a "change of control" of
the Company under (i) any statute or any order, rule or regulation of any
court or governmental agency or body, or regulatory authority, foreign or
domestic, having jurisdiction over the Company or (ii) any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company is a party or by which it is bound. For purposes hereof,
"change of control" and similar terms shall have the meaning given thereto in
the applicable statute, order, rule, regulation, indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument.
(k) No consent, approval, authorization or order of, or filing,
registration or qualification by the Company with, any court or governmental
agency or body, domestic or foreign, having jurisdiction over the Company is
required for the offering and sale of the Shares or the consummation by the
Company of the other transactions contemplated by this Agreement or the
Registration Rights Agreement, except such filings as may be required by the
Securities Act or the Exchange Act.
(l) Other than as set forth in the Final Private Placement
Memorandum, there are no legal or governmental proceedings pending to which
the Company or any of its subsidiaries is a party or of which any property of
the Company or any of its subsidiaries is the subject which if determined
adversely to the Company, or such subsidiary, 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 under this Agreement, the
Registration Rights Agreement, or the performance by the Company of its
respective obligations hereunder or thereunder; and, to the Company's
knowledge, no such proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(m) PricewaterhouseCoopers LLP and Ernst & Young, who have audited
the financial statements of the Company and its consolidated subsidiaries
included in or annexed to the Final Private Placement Memorandum, are
independent public accountants with respect to the Company as required by the
Securities Act.
(n) The audited financial statements, and the related notes thereto,
included in the documents annexed to or incorporated by reference into the
Private Placement Memorandum present fairly in all material respects the
consolidated financial position of the Company and its consolidated
subsidiaries and the consolidated results of its operations and the changes in
its consolidated cash flows, as of the dates and for the periods indicated,
and said financial statements
7
have been prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved, except as
otherwise stated therein; the unaudited consolidated financial statements and
the related notes thereto included in the documents annexed to the Private
Placement Memorandum present fairly in all material respects the consolidated
financial position of the Company and its consolidated subsidiaries as of the
dates and for the periods indicated and the results of its operations and the
changes in its consolidated cash flows, subject to year-end audit adjustments,
have been prepared in accordance with generally accepted accounting principles
applied on a consistent basis throughout the periods involved, except for the
absence of notes thereto and as otherwise stated therein and have been
prepared on a basis substantially consistent with that of the audited
financial statements referred to above except as otherwise stated therein.
(o) All information related to the Company's coal reserves (in the
aggregate and by resource group) included in its Annual Report on Form 10-K/A
for the year ended December 31, 2002, as amended through the date of the
Private Placement Memorandum, at the time the last of such amended Annual
Reports on Form 10-K/A was filed with the Commission (collectively, the
"Company Coal Reserve Information") (i) was accurate in all material respects
and (ii) complied in all material respects with the requirements of the
Exchange Act and the rules and regulations of the Commission thereunder; all
assumptions used in the calculation of the Company Coal Reserve Information
were reasonable.
(p) The Company and each of its subsidiaries owns and possesses all
such patents, patent rights, trademarks, trademark rights, trade names, trade
name rights, service ▇▇▇▇ rights and copyrights as the Company considers
necessary for the conduct of the businesses of the Company or such
subsidiaries as now conducted without any infringement upon rights of others
which, individually or in the aggregate, would have a Material Adverse Effect.
There is no individual patent or patent license used by the Company or any
subsidiary in the conduct of its business the loss of which would have a
Material Adverse Effect.
(q) Neither the Company, nor any of its subsidiaries (i) is in
violation of its certificate or articles of incorporation or bylaws or
comparable governing instruments or (ii) is in breach or violation of any of
the terms or provisions of, or with the giving of notice or lapse of time, or
both, would be in default under, any contract, indenture, mortgage, deed of
trust, loan agreement, note, lease, partnership agreement, or other agreement
or instrument to which it is a party or by which it is bound or to which its
properties or assets may be subject, except for such violations or defaults
that would not, individually or in the aggregate, be reasonably expected to
have a Material Adverse Effect.
(r) Except as set forth or contemplated in the Final Private
Placement Memorandum, the Company and each of its subsidiaries possess all
licenses, certificates, permits and other authorizations issued by the
appropriate federal, state or foreign regulatory authorities, necessary to
conduct their respective businesses, except for any such license, certificate,
permit or authorization the absence of which, individually or in the
aggregate, would not reasonably be expected to result in a Material Adverse
Effect, and neither the Company nor any such subsidiary has received any
notice of proceedings relating to the revocation or modification of any such
certificate, authorization or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would reasonably be
expected to have a Material
8
Adverse Effect, whether or not arising from transactions in the ordinary
course of business; and the Company and each of its subsidiaries is in
material compliance with all laws and regulations relating to the conduct of
its respective businesses as conducted as of the date hereof, except
where noncompliance with such laws or regulations would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect.
(s) The Company and each of its subsidiaries own or lease all such
properties as are necessary to the conduct of their respective operations as
presently conducted, except where the failure to own or lease such properties
would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(t) No labor problem or dispute with the employees of the Company or
any of its subsidiaries exists or to the knowledge of the Company is
threatened, and the Company is not aware of any existing or threatened labor
disturbance by the employees of any of its, or its respective subsidiaries',
principal suppliers, contractors or customers, any of which would reasonably
be expected to have a Material Adverse Effect, except as set forth or
contemplated in the Final Private Placement Memorandum.
(u) The Company and its subsidiaries are (i) in compliance with any
and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"); (ii) have received and are in compliance with all
permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses; and (iii) have not
received notice of any actual or potential liability for the investigation or
remediation of any disposal or release of hazardous or toxic substances or
wastes, pollutants or contaminants, except, in the cases of each of clauses
(i) through (iii), as would not, individually or in the aggregate, have a
Material Adverse Effect, whether or not arising from transactions in the
ordinary course of business, and except as set forth or contemplated in the
Final Private Placement Memorandum.
(v) The Company is not, and upon the offering and sale of the Shares
as herein contemplated will not be, an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
(w) There is and has been no material failure on the part of the
Company or any of the Company's directors or officers, in their capacities as
such, to comply with any provision of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002.
(x) Neither the Company, nor any of its Affiliates (other than the
Seller and any Affiliates of the Seller that control the Company, as to whom
no representations or warranties are made hereby) nor any person acting on
their behalf (other than [ ] as to whom no representations or warranties are
made hereby) (i) has directly or indirectly made offers or sales of any
security, or solicited offers to buy any security, under circumstances that
would require the registration of the Shares under the Securities Act; or (ii)
has engaged or will engage in any form of general solicitation or general
advertising (within the meaning of Regulation D) in connection with any offer
or sale of the Shares in the United States.
9
(y) It is not necessary, in connection with the offer, sale and
delivery of the Shares to the Purchasers under this Agreement and the Final
Private Placement Memorandum, to register the Shares under the Securities Act,
assuming that
(i) the representations and warranties of the Seller and [ ] in
Sections 2 and 4, respectively, of the Placement Agreement, dated as
of September 18, 2003, by and among the Company, the Seller and [ ],
as amended by Amendment No. 1, dated as of September 23, 2003 (the
"Initial Placement Agreement"), and the representations and
warranties of the purchasers set forth in the purchaser
letters/subscription agreements delivered in connection with the
sale on September 23 and September 24, 2003 by the Company and the
Seller of 11,000,000 and 14,100,000 shares, respectively, of common
stock of the Company (the "Initial Offering") were true and [ ] and
the purchasers in the Initial Offering have not breached and will
not breach their respective representations and warranties set forth
in the Initial Placement Agreement and purchaser
letters/subscription agreements, respectively, delivered in
connection with the Initial Offering,
(ii) the representations and warranties of the Seller and [ ]
in Sections 2 and 4, respectively, of the Placement Agreement, dated
as of October 2, 2003, by and among the Company, the Seller and [ ]
(the "Second Placement Agreement"), and the representations and
warranties of the purchasers set forth in the purchaser letters
delivered in connection with the sale on October 9, 2003 by the
Seller of 27,274,425 shares of common stock of the Company (the
"Second Offering") were true and [ ] and the purchasers in the
Second Offering have not breached and will not breach their
respective representations and warranties set forth in the Second
Placement Agreement and purchaser letters, respectively, delivered
in connection with the Second Offering, and
(iii) the representations and warranties of the Seller and [ ]
in Sections 2 and 4 hereof, respectively, and the representations
and warranties of the Purchasers set forth in the Purchaser Letters
are true and the Seller, [ ] and each Purchaser have not breached
and will not breach their respective representations and warranties
in Sections 2 and 4 of this Agreement or, in the case of the
Purchasers, in the Purchaser Letters.
(z) The Company has not taken, directly or indirectly, any action
designed to cause or which has constituted or which might reasonably be
expected to cause or result, under the Exchange Act or otherwise, in the
stabilization or manipulation of the price of any security of the Company to
facilitate the offering and sale of the Shares.
Any certificate signed by any officer of the Company and delivered to
[ ] or counsel for [ ] in connection with the offering of the Shares shall be
deemed a representation and warranty by the Company as to matters covered
thereby to [ ].
4. REPRESENTATIONS AND WARRANTIES OF [ ]: [ ] represents and
warrants to the Seller and the Company, and hereby agrees, as follows:
(a) [ ] has not made any offers of the Shares to any person prior to
the date hereof not in conformity with the terms hereof, and on and after the
date hereof will make no offer of
10
the Shares not in conformity with the terms hereof. In particular, [ ] has not
made any offers of Shares to, or solicited offers to buy the Shares from, any
person other than "qualified institutional buyers," as defined in Rule 144A
under the Securities Act, prior to the date hereof, and on and after the date
hereof [ ] will make no offer of the Shares to, or solicit offers to buy the
Shares from, any person other than "qualified institutional buyers," as
defined in Rule 144A under the Securities Act. The offer of the Shares by [ ]
will be made only in those jurisdictions designated by [ ] for which there is
an effective qualification or exemption from registration of the offering of
Shares in such jurisdictions by a broker-dealer registered under the laws of
such jurisdictions.
(b) [ ] has not solicited, and will not solicit, offers to buy the
Shares by any form of general solicitation or general advertising, including
but not limited to the methods described in Rule 502(c) under the Securities
Act, or in any manner involving a public offering within the meaning of
Section 4(2) of the Securities Act.
(c) [ ] and its representatives who have participated and will
participate in the offer of the Shares were, and will continue to be,
throughout the offering, registered as broker-dealers or salesmen, as
required, or are exempt from such registration, in each jurisdiction in which
[ ] offers the Shares.
(d) [ ] has complied and will comply with all requirements imposed
upon it by the Securities Act, and by all applicable state securities laws and
regulations, to permit the continuance of offers of the Shares, in accordance
with the provisions hereof, the Preliminary Private Placement Memorandum, the
Final Private Placement Memorandum and such laws and regulations.
(e) [ ] is (i) duly registered as a broker dealer under the Exchange
Act and (ii) a member in good standing of the National Association of
Securities Dealers, Inc.
(f) In soliciting purchasers for the Shares, [ ] and its
representatives have utilized and will utilize only the Private Placement
Memorandum and [ ] and its representatives have not used and will not use any
other solicitation material or advertisement without the prior written
approval of the Seller and the Company. [ ] and its representatives have not
and will not make any representations or furnish any information in connection
with this Agreement or the offering of the Shares other than that contained in
the Private Placement Memorandum.
(g) If requested by the Company, [ ] shall use its commercially
reasonable efforts to obtain from prospective purchasers a confidentiality
agreement in form and substance reasonably satisfactory to the Company.
[ ] understands that the Company and the Seller and, for the
purposes of the opinions to be delivered to [ ] pursuant to Section 6 hereof,
counsel to the Company, counsel to the Seller and counsel to [ ] will rely
upon the accuracy and the truth of the forgoing representations and [ ] hereby
consents to such reliance.
5. CERTAIN AGREEMENTS:
(a) The Company hereby agrees with [ ] and the Seller, as follows:
11
(i) to prepare the Final Private Placement Memorandum in a form
reasonably approved by [ ] and to furnish promptly (and with respect
to the initial delivery of such Final Private Placement Memorandum,
not later than 10:00 a.m. (New York City time) on the second day
following the execution and delivery of this Agreement) to [ ] as
many copies of the Final Private Placement Memorandum (and any
amendments or supplements thereto) as [ ] may reasonably request for
the purposes contemplated by this Agreement;
(ii) to advise [ ] and the Seller promptly, confirming the
general nature of such advice in writing, of (A) the happening of
any event known to the Company at any time prior to the Closing
Date, which, in the reasonable judgment of the Company, would
require the making of any change in the Final Private Placement
Memorandum then being used so that the Final Private Placement
Memorandum would not include an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they are made, not misleading and to
prepare and furnish, at the Company's expense, to [ ] (and to any
persons reasonably designated by [ ]) promptly any proposed
amendments or supplements to the Final Private Placement Memorandum
as may be necessary so that the Final Private Placement Memorandum
does not include or omit to state such material fact, and (B) the
receipt of any notification with respect to the modification,
rescission, withdrawal or suspension of the qualification of the
Shares, or of any exemption from such qualification or from
registration of the Shares, for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings
for any of such purposes and, if any government agency or authority
should issue any such order, to make every reasonable effort to
obtain the lifting or removal of such order as soon as possible;
(iii) not to amend or supplement the Preliminary Private
Placement Memorandum or the Final Private Placement Memorandum for a
period of 30 days from the date hereof unless [ ] shall previously
have been advised thereof and shall have consented thereto (which
consent shall not be unreasonably withheld or delayed); provided
that consent of [ ] shall not be required for the filing by the
Company with the Commission, at the request of the Commission, of
any amendment to any previously filed Company report;
(iv) that neither the Company nor any of its Affiliates (other
than the Seller and any Affiliates of the Seller) will solicit any
offer to buy or offer or sell the Shares by means of any form of
general solicitation or general advertising (within the meaning of
Regulation D);
(v) that neither the Company nor any of its Affiliates (other
than the Seller and any Affiliates of the Seller that control the
Company) will sell, offer for sale or solicit offers to buy or
otherwise negotiate in respect of any security (as defined in the
Securities Act) the offering of which security will be integrated
with the Private Placement in a manner which would require the
registration under the Securities Act of the sale of the Shares to
the Purchasers;
(vi) that the Company will not take, and will use all
commercially reasonable efforts to cause its Affiliates (other than
the Seller and any Affiliates of the Seller not to take,
12
directly or indirectly, any action designed to, or that might be
reasonably expected to, cause or result in stabilization or
manipulation of the price of the Shares;
(vii) that, except as permitted by the Securities Act, neither
the Company nor any of its Affiliates (other than the Seller and any
Affiliates of the Seller will distribute any offering materials in
connection with the offering and sale of the Shares as contemplated
hereby, other than the Preliminary Private Placement Memorandum, the
Final Private Placement Memorandum and any related marketing
materials developed jointly and approved by the Seller, the Company
and [ ];
(viii) to pay all expenses, fees and taxes in connection with
(A) the costs and expenses of the Company incurred in connection
with the marketing of the Shares, including "road show" costs and
expenses, and (B) the performance of the Company's other obligations
hereunder; provided, however, that the Company shall not pay the
fees or expenses (including without limitation legal expenses)
incurred by [ ].
(ix) that, until the board of directors of the Company has
determined otherwise, the Company will conduct its affairs in such a
manner so as to ensure that the Company will not be an "investment
company" within the meaning of the Investment Company Act.
(b) The Seller hereby agrees with [ ] and the Company as follows:
(i) the Seller will not solicit any offer to buy or offer or
sell the Shares by means of any form of general solicitation or
general advertising (within the meaning of Regulation D);
(ii) the Seller will not sell, offer for sale or solicit offers
to buy or otherwise negotiate in respect of any security (as defined
in the Securities Act) the offering of which security will be
integrated with the Private Placement in a manner which would
require the registration under the Securities Act of the offer and
sale of the Shares to the Purchasers;
(iii) the Seller will not take, directly or indirectly, any
action designed to, or that might be reasonably expected to, cause
or result in stabilization or manipulation of the price of the
Shares;
(iv) that, except as permitted by the Securities Act, the
Seller will not distribute any offering materials in connection with
the offering and sale of the Shares as contemplated hereby, other
than the Preliminary Private Placement Memorandum, the Final Private
Placement Memorandum and any related marketing materials developed
jointly and approved by the Seller, the Company and [ ]; and
(v) the Seller will pay all expenses, fees and taxes in
connection with (A) the printing of the Preliminary Private
Placement Memorandum and the Final Private Placement Memorandum, and
any amendments or supplements thereto, and the furnishing of copies
of each thereof to [ ] (including costs of mailing and shipment)
and, (B) the fees and expenses of any transfer agent or registrar
for the Shares; provided, however, that the Seller shall not pay the
fees or expenses (including without limitation legal expenses)
incurred by [ ].
13
(c) The Company reaffirms its agreement contained in Section
5(c) of the Initial Placement Agreement, which is hereby
incorporated herein by reference.
(d) The Seller agrees as follows:
(i) The Seller reaffirms its agreement contained in Section
5(d)(i) of the Initial Placement Agreement, which is hereby
incorporated herein by reference.
(ii) The Seller shall pay all stock or other transfer taxes or
duties payable upon the sale of the Shares to the Purchasers.
6. CONDITIONS OF PURCHASERS' OBLIGATIONS: The obligation of the
Purchasers to purchase the Shares in accordance with the terms hereof shall be
subject to (A) (i) the accuracy in all respects of those representations and
warranties of the Seller and the Company contained herein that are qualified
by terms such as "material," "materially," "Material Adverse Effect" and
similar qualifications as to materiality and (ii) the accuracy in all material
respects of those representations and warranties of the Seller and the Company
contained herein that are not so qualified by terms such as "material,"
"materially," "Material Adverse Effect" and similar qualifications as to
materiality, in each case as of the date and time that this Agreement is
executed and delivered by the parties hereto (the "Execution Time") and as of
the Closing Date as though made on and as of such date and time, (B) to the
accuracy of the statements of the Company's and Seller's officers contained in
any certificates delivered pursuant to the provisions hereof, (C) to the
performance by the Seller and the Company of their respective covenants and
agreements hereunder and (D) to the following additional conditions:
(a) The Company shall furnish to [ ] on the Closing Date an opinion
of ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Company, addressed to [ ] and dated the
Closing Date and in form reasonably satisfactory to [ ], substantially as set
forth on Exhibit D hereto.
(b) The Seller shall furnish to [ ] on the Closing Date an opinion
of Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Seller, addressed to [ ] and
dated the Closing Date and in form satisfactory to [ ], substantially as set
forth in Exhibit E hereto.
(c) The Seller shall furnish to [ ] on the Closing Date an opinion
of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq., Senior Counsel, International Legal Affairs, of the
Seller, addressed to [ ] and dated the Closing Date and in form satisfactory
to [ ] substantially as set forth in Exhibit F hereto.
(d) [ ] shall have received certificates, addressed to [ ] dated the
Closing Date, of duly authorized officers of the Company on behalf of the
Company, to the effect that:
(i) the Final Private Placement Memorandum and all amendments
or supplements thereto, or modifications thereof, if any, do not
contain an untrue statement of material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which
they are made, not misleading;
(ii) between the time of execution of this Agreement and the
Closing Date,
14
(A) except as set forth or contemplated in the Final
Private Placement Memorandum, no event constituting a Material
Adverse Effect on the Company shall have occurred,
(B) except as set forth or contemplated in the Final
Private Placement Memorandum, no transaction which is material
to the Company and its subsidiaries taken as a whole shall have
been entered into by the Company or any subsidiary and
(C) the Commission shall not have issued any order, decree
or stop order preventing the use of the Final Private Placement
Memorandum or any amendment or supplement thereto, or any order
asserting that the offer and sale of the Shares to the
Purchasers contemplated by this Agreement are subject to the
registration requirements of the Securities Act; and
(iii) the representations and warranties of the Company set
forth in this Agreement that are qualified by terms such as
"material," "materially," "Material Adverse Effect" and similar
qualifications as to materiality are true and correct in all
respects, and those that are not so qualified are true and correct
in all material respects, as of the Closing Date, as though made on
and as of such time (except to the extent that such representations
and warranties speak as of another time, in which case such
representations and warranties that are qualified by terms such as
"material," "materially," "Material Adverse Effect" and similar
qualifications as to materiality shall be true and correct in all
respects, and those that are not so qualified shall be true and
correct in all material respects, in each case as of such other
time).
(e) [ ] shall have received certificates, dated the Closing Date, of
two officers of the Seller, on behalf of the Seller, to the effect that the
representations and warranties of the Seller set forth in this Agreement that
are qualified by terms such as "material," "materially," "Material Adverse
Effect" and similar qualifications as to materiality are true and correct in
all respects, and those that are not so qualified are true and correct in all
material respects, as of the Closing Date, as though made on and as of such
time (except to the extent that such representations and warranties speak as
of another time, in which case such representations and warranties that are
qualified by terms such as "material," "materially," "Material Adverse Effect"
and similar qualifications as to materiality shall be true and correct in all
respects, and those that are not so qualified shall be true and correct in all
material respects, in each case as of such other time).
(f) On or before the Closing Date, the Seller shall have executed
and delivered to [ ] and the escrow agent the Escrow Agreement.
(g) The Seller and the Company shall have furnished to [ ] such
other documents and certificates as [ ] may reasonably request.
(h) [ ] shall have received a certificate of the Secretary of the
Company certifying (i) the Certificate of Incorporation and any amendments
thereto, (ii) the Bylaws and any amendments thereto, (iii) that all corporate
action has been taken on the part of the Company necessary to authorize the
execution and delivery of this Agreement, the Registration Rights Agreement
and the other offering documents and the transactions contemplated herein and
15
therein, (iv) resolutions of the Board of Directors of the Company approving
the original issuance and sale of the Shares to the Seller, and (v) a specimen
Common Stock certificate.
All opinions, certificates, letters and documents delivered pursuant
to this Agreement will comply with the provisions hereof only if they are
reasonably satisfactory in all material respects to [ ] and counsel for [ ].
The Company and the Seller, as the case may be, shall furnish to [ ] such
copies of such opinions, certificates, letters and documents in such
quantities as [ ] and counsel for [ ] shall reasonably request.
7. TERMINATION:
(a) This Agreement may be terminated at the option of the Purchasers
of a majority of the Shares by giving notice to the Company and the Seller
prior to the Closing Date if, in the sole discretion of the Purchasers of a
majority of the Shares, any of the following makes it inadvisable to proceed
with the purchase of the Shares to be delivered at the Closing Date:
(i) the Company shall have, in the reasonable judgment of the
Purchasers of a majority of the Shares, sustained any Material
Adverse Effect;
(ii) trading generally in securities on the New York Stock
Exchange or Nasdaq National Market shall have been suspended or
minimum or maximum prices shall generally have been established on
either such exchange or market system;
(iii) a banking moratorium shall have been declared by New York
or United States authorities; or
(iv) there shall have been any outbreak or escalation of
national or international hostilities or any other calamity or
crisis, including without limitation any terrorist attack or similar
attack, in each case resulting in a material adverse change in
United States financial markets.
(b) Termination of this Agreement pursuant to this Section 7 shall
be without liability of any party to any other party except for the expenses
to be paid by the Company and Seller pursuant to Section 5 and except as
provided in Section 8 hereof.
8. INDEMNIFICATION AND CONTRIBUTION:
(a) The Company agrees to indemnify, defend and hold harmless [ ],
the Seller and any person who controls [ ] or the Seller within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act from and
against any loss, expense, liability, damage or claim (including the
reasonable cost of investigation) which, jointly or severally, [ ], the Seller
or such controlling person may incur under the Securities Act, the Exchange
Act or otherwise, insofar as such loss, expense, liability, damage or claim
arises out of or is based upon (i) any breach of any representation, warranty
or covenant of the Company contained in Sections 3(x), 3(y), 5(a)(iv) and
5(a)(v) hereof or (ii) any untrue statement or alleged untrue statement of a
material fact contained in the Preliminary Private Placement Memorandum, or
the Final Private Placement Memorandum or any other offering materials
approved in writing by the Company
16
prior to the use thereof, or arises out of or is based upon any omission or
alleged omission to state a material fact required to be stated in either such
Preliminary Private Placement Memorandum or the Final Private Placement
Memorandum or necessary to make the statements made therein, in the light of
the circumstances under which they were made, not misleading, except insofar
as any such loss, expense, liability, damage or claim arises out of or is
based upon any untrue statement or alleged untrue statement or omission or
alleged omission of a material fact contained in and in conformity with
information furnished in writing by [ ] or the Seller to the Company expressly
for use in such Preliminary Private Placement Memorandum or Final Private
Placement Memorandum; provided, however, that the indemnity agreement
contained in this subsection (a) with respect to the Preliminary Private
Placement Memorandum or the Final Private Placement Memorandum shall not inure
to the benefit of [ ] (or to the benefit of any person controlling [ ]) with
respect to any person asserting any such loss, expense, liability, damage or
claim which is the subject thereof if the Preliminary Private Placement
Memorandum or the Final Private Placement Memorandum or any amendment or
supplement thereto prepared with the consent of [ ] and furnished to [ ] prior
to the Closing Date corrected any such alleged untrue statement or omission
and if [ ] failed to send or give a copy of the corrected Preliminary Private
Placement Memorandum or Final Private Placement Memorandum or amendment or
supplement thereto to such person at or prior to the written confirmation of
the sale of Shares to such person, unless such failure resulted from
noncompliance by the Company or the Seller with their obligations under this
Agreement.
If any claim or action is brought against, or any loss, expense,
liability or damage (including the reasonable cost of investigation) is
incurred by, [ ], the Seller or any controlling person in respect of which
indemnity may be sought against the Company pursuant to the preceding
paragraph, [ ] or the Seller, as the case may be, shall promptly notify the
Company in writing of the institution of such claim or action or the
incurrence of such loss, expense, liability or damage, and the Company shall
assume the defense of such claim or action or the response to such loss,
expense, liability or damage, including the employment of counsel and payment
of reasonable fees and expenses associated therewith; provided, however, that
any failure or delay to so notify the Company will not relieve the Company of
any obligation hereunder, except to the extent that its ability to defend such
claim or action or mitigate such loss, expense, liability or damage is
materially prejudiced by such failure or delay. [ ], the Seller or any
controlling person shall have the right to employ its or their own counsel in
any such case, but the fees and expenses of such counsel shall be at the
expense of [ ], the Seller or such controlling person unless the employment of
such counsel shall have been authorized in writing by the Company or the
Company shall not have employed counsel to have charge of the defense of or
response to such claim, action, loss, expense, liability or damage, within a
reasonable time or such indemnified party or parties shall have reasonably
concluded (based on the advice of counsel) that there may be defenses
available to it or them which are different from or additional to those
available to the Company (in which case the Company shall not have the right
to direct the defense of such claim or action on behalf of the indemnified
party or parties), in any of which events such reasonable fees and expenses
shall be borne by the Company and paid as incurred (it being understood,
however, that the Company shall not be liable for the expenses of more than
one separate firm of attorneys for each of [ ], the Seller or their respective
controlling persons in any one action or series of related actions in the same
jurisdiction representing the indemnified parties who are parties to such
action). Anything in this
17
paragraph to the contrary notwithstanding, the Company shall not be liable for
any settlement of any such claim or action effected without its written
consent.
(b) The Seller agrees to indemnify, defend and hold harmless [ ],
the Company and any person who controls [ ] or the Company (other than the
Seller) within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act from and against (i) any loss, expense, liability, damage
or claim (including the reasonable cost of investigation) which, jointly or
severally, the Company, [ ] or any such person may incur under the Securities
Act, the Exchange Act or otherwise, insofar as such loss, expense, liability,
damage or claim arises out of or is based upon any breach of any
representation, warranty or covenant of the Seller contained in Section 2(d),
Section 5(b)(i) and Section 5(b)(ii) or (ii) any loss, expense, liability,
damage or claim (including the reasonable cost of investigation) which,
jointly or severally, [ ], the Company or such controlling person may incur
under the Securities Act, the Exchange Act or otherwise, insofar as such loss,
expense, liability, damage or claim arises out of or is based upon any untrue
statement of a material fact contained in the Preliminary Private Placement
Memorandum or the Final Private Placement Memorandum (or such as amended or
supplemented by the Company), or arise out of or are based upon the omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the extent, but
only to the extent, that such untrue statement or omission was made in the
Preliminary Private Placement Memorandum or the Final Private Placement
Memorandum (or such as amended or supplemented by the Company) in reliance
upon and in conformity with written information furnished to the Company by
the Seller expressly for use therein. The statements specified in the final
sentence of Section 2(a) constitute the only information furnished by or on
behalf of the Seller to the Company for purposes of Section 2(a) and this
Section 8.
If any claim or action is brought against [ ] or the Company or any
such person in respect of which indemnity may be sought against the Seller
pursuant to the foregoing paragraph, [ ], the Company or such person shall
promptly notify the Seller in writing of the institution of such action and
the Seller shall assume the defense of such action, including the employment
of counsel and payment of reasonable fees and expenses associated therewith. [
], the Company or such person shall have the right to employ its own counsel
in any such case, but the fees and expenses of such counsel shall be at the
expense of [ ], the Company or such person unless the employment of such
counsel shall have been authorized in writing by the Seller in connection with
the defense of such action or the Seller shall not have employed counsel to
have charge of the defense of such action within a reasonable time or such
indemnified party or parties shall have reasonably concluded (based on the
advice of counsel) that there may be defenses available to it or them which
are different from or additional to those available to the Seller (in which
case the Seller shall not have the right to direct the defense of such action
on behalf of the indemnified party or parties), in any of which events such
reasonable fees and expenses shall be borne by the Seller and paid as incurred
(it being understood, however, that the Seller shall not be liable for the
expenses of more than one separate firm of attorneys in any one action or
series of related actions in the same jurisdiction representing the
indemnified parties who are parties to such action). Anything in this
paragraph to the contrary notwithstanding, the Seller shall not be liable for
any settlement of any such claim or action effected without the written
consent of the Seller.
18
(c) [ ] agrees to indemnify, defend and hold harmless the Company,
the Seller, each of their directors and any person who controls the Company or
the Seller within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act from and against (i) any loss, expense, liability,
damage or claim (including the reasonable cost of investigation) which,
jointly or severally, the Company, the Seller or any such person may incur
under the Securities Act, the Exchange Act or otherwise, insofar as such loss,
expense, liability, damage or claim arises out of or is based upon any breach
of any representation, warranty or covenant of [ ] contained in the first and
second sentences of Section 4(a) and in Section 4(b) or (ii) any loss,
expense, liability, damage or claim (including the reasonable cost of
investigation) which jointly or severally, the Company, the Seller or any such
person may incur under the Securities Act, the Exchange Act or otherwise
insofar as such loss, expense, liability, damage or claim arises out of or is
based on any untrue statement or alleged untrue statement of a material fact
contained in and in conformity with information furnished in writing by [ ] to
the Company expressly for use in the Preliminary Private Placement Memorandum
or the Final Private Placement Memorandum (or such as amended or supplemented
by the Company), or arises out of or is based upon any omission or alleged
omission to state a material fact in connection with such information or
necessary to make such information, in the light of the circumstances under
which they were made, not misleading. The statements set forth under Section
20 hereinbelow constitute the only information furnished by or on behalf of [
] to the Company for purposes of Section 3(a) above and this Section 8.
If any claim or action is brought against the Company, the Seller or
any such person in respect of which indemnity may be sought against [ ]
pursuant to the foregoing paragraph, the Company, the Seller or such person
shall promptly notify [ ] in writing of the institution of such action and [ ]
shall assume the defense of such action, including the employment of counsel
and payment of reasonable fees and expenses associated therewith. The Company,
the Seller or such person shall have the right to employ its own counsel in
any such case, but the fees and expenses of such counsel shall be at the
expense of the Company, the Seller or such person unless the employment of
such counsel shall have been authorized in writing by [ ] in connection with
the defense of such action or [ ] shall not have employed counsel to have
charge of the defense of such action within a reasonable time or such
indemnified party or parties shall have reasonably concluded (based on the
advice of counsel) that there may be defenses available to it or them which
are different from or additional to those available to [ ] (in which case [ ]
shall not have the right to direct the defense of such action on behalf of the
indemnified party or parties), in any of which events such fees and expenses
shall be borne by [ ] and paid as incurred (it being understood, however, that
[ ] shall not be liable for the expenses of more than one separate firm of
attorneys for each of the Company, the Seller or their respective controlling
persons in any one action or series of related actions in the same
jurisdiction representing the indemnified parties who are parties to such
action). Anything in this paragraph to the contrary notwithstanding, [ ] shall
not be liable for any settlement of any such claim or action effected without
the written consent of [ ].
(d) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party under subsections (a), (b) and (c) of this
Section 8 in respect of any losses, expenses, liabilities, damages or
19
claims referred to therein, then each applicable indemnifying party, in lieu
of indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, expenses,
liabilities, damages or claims (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company, the Seller and [ ] from
the offering of the Shares or (ii) if (but only if) the allocation provided by
clause (i) above 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, the Seller and [ ] in
connection with the statements or omissions which resulted in such losses,
expenses, liabilities, damages or claims, as well as any other relevant
equitable considerations. The relative benefits received by the Company, the
Seller and [ ] shall be deemed to be in the same proportion as the total
proceeds from the offering received by the Company and the Seller bear to the
Placement Fee received by [ ] provided that, as between the Company and [ ],
or the Seller and [ ], benefits received by [ ] shall be limited to the
Placement Fee received by [ ] from the sale of shares by the Company or by the
Seller, respectively, and not the aggregate Placement Fee. The relative fault
of the Company, the Seller and [ ] shall be determined by reference to, among
other things, whether the untrue statement or alleged untrue statement of a
material fact or omission or alleged omission relates to information supplied
by the Company or by the Seller or by [ ] and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a result of
the losses, claims, damages and liabilities referred to above shall be deemed
to include any legal or other fees or expenses reasonably incurred by such
party in connection with investigating or defending any claim or action.
The Company, the Seller and [ ] agree that it would not be just and
equitable if contribution pursuant to this Section 8 were determined by pro
rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in subsection (c)(i) and,
if applicable (ii), above. Notwithstanding the provisions of this Section 8, [
] shall not be required to contribute any amount in excess of the Placement
Fee applicable to the Shares purchased by the Purchasers. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
9. SURVIVAL: The respective representations, warranties, agreements,
covenants, indemnities and other statements of the Company, the Seller, their
respective officers, the Purchasers and [ ] set forth in or delivered in
connection with this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement shall remain in full force and effect, regardless
of (i) any investigation made by or on behalf of the Company, the Seller, any
of their respective officers or directors, the Purchasers, [ ] and each
person, if any, who controls the Company, the Seller or [ ] within the meaning
of the Securities Act or the Exchange Act and their respective trustees,
directors, officers, employees, agents and controlling persons referred to in
Section 8 hereof and (ii) delivery of and payment for the Shares. The
respective agreements, covenants, indemnities and other statements set forth
in Sections 5(a)(viii), 5(b)(v) and 8 hereof shall remain in full force and
effect, regardless of any termination or cancellation of this Agreement.
10. NOTICES: All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class
mail, telex, telecopier or air courier guaranteeing overnight delivery:
20
(a) if to the Company: CONSOL Energy Inc.
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Consol Plaza
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to the Seller: RWE Power AG
Attn: General Counsel,
▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇
▇-▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ of Germany
Telephone: 49 (0) 221/▇▇▇-▇▇▇▇▇
Facsimile: 49 (0) 221/480-1345
with a copy to: Cravath, Swaine & ▇▇▇▇▇ LLP
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Worldwide Plaza
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(c) if to [ ]: [ ]
Attn: [ ]
[ ]
[ ]
[ ]
Telephone: [ ]
Facsimile: [ ]
with a copy to: Hunton & ▇▇▇▇▇▇▇▇ LLP
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Riverfront Plaza, East Tower
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
21
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(d) if to the Purchasers: To each Purchaser at its address
specified in its Purchaser Letter
All such notices and communications shall be deemed to have been
duly given when received. Any party by notice to the other party may designate
additional or different addresses for subsequent notices or communications.
11. GOVERNING LAW; CONSENT TO JURISDICTION: THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES. The parties hereto agree
to be subject to, and hereby irrevocably submit to, the nonexclusive
jurisdiction of the United States District Court for the Southern District of
New York or the Supreme Court of the State of New York sitting in New York
County, in respect of any suit, action or proceeding arising out of or
relating to this Agreement or the transactions contemplated herein, and
irrevocably agree that all claims in respect of any such suit, action or
proceeding may be heard and determined in any such court. Each of the parties
hereto irrevocably waives, to the fullest extent permitted by applicable law,
any objection to the laying of the venue of any such suit, action or
proceeding brought in any such court and any claim that any such suit, action
or proceeding has been brought in an inconvenient forum.
12. WAIVER OF JURY TRIAL: TO THE EXTENT PERMITTED BY LAW, EACH OF
THE PARTIES HERETO IRREVOCABLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY OR ON BEHALF OF ANY PARTY
RELATED TO OR ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY. EACH PARTY HERETO (a) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (b) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO
HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
13. PARTIES IN INTEREST: The Agreement herein set forth has been and
is made solely for the benefit of the Purchasers, [ ], the Company, the Seller
and the controlling persons, trustees, directors and officers referred to in
Sections 8 and 9 hereof, and their respective successors, assigns, executors
and administrators. No other person, partnership, association or corporation
shall acquire or have any right under or by virtue of this Agreement. The
parties hereto agree that the Purchasers shall be third party beneficiaries to
the agreement made by the Seller in Section 1(d) of this Agreement, and each
Purchaser shall have the right to enforce such agreement directly to the
extent it deems such enforcement necessary or advisable to protect its rights
hereunder.
22
14. AMENDMENTS AND WAIVERS: Neither this Agreement nor any term
hereof may be changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by the party against whom enforcement of the
change, waiver, discharge or termination is sought.
15. SUCCESSORS: This Agreement shall inure to the benefit of and be
binding upon the successors and permitted assigns of each of the parties. The
rights and obligations of any party hereto may not be assigned by such party
without the express written consent of each other party hereto, and any
attempted assignment without such consent shall be invalid.
16. COUNTERPART AND FACSIMILE SIGNATURES: This Agreement may be in
signed counterparts, each of which shall be an original and all of which
together shall constitute one and the same agreement, and may be executed by
facsimile.
17. HEADINGS: The section headings in this Agreement have been
inserted as a matter of convenience of reference and are not a part of this
Agreement.
18. SEVERABILITY: In the event that any one or more of the
provisions contained herein is held invalid, illegal or unenforceable in any
respect for any reason, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions hereof shall
not be in any way impaired or affected thereby, but only to the extent that
giving effect to such provision and the remaining provisions hereof is in
accordance with the intent of the parties as reflected in this Agreement.
19. ENTIRE AGREEMENT: This Agreement (including the Exhibits hereto)
constitutes the entire agreement and understanding of the parties hereto with
respect to the matters and transactions contemplated hereby supersedes all
prior agreements and understanding whatsoever relating to such matters and
transactions.
20. FURNISHED INFORMATION: The Company and [ ] hereby confirm and
agree that the only information furnished to the Company by [ ] expressly for
use in the Private Placement Memorandum is the information set forth in the
last sentence of the second paragraph under the heading "Private Placement."
[SIGNATURE PAGE FOLLOWS]
23
Please acknowledge and accept the foregoing provisions hereof by
signing this Agreement in the space indicated below.
Very truly yours,
RWE POWER AG, a stock corporation organized
under the laws of the Federal Republic
of Germany
By:
------------------------------------------
Name:
Title:
By:
------------------------------------------
Name:
Title:
CONSOL Energy Inc., a Delaware corporation
By:
------------------------------------------
Name:
Title:
ACKNOWLEDGED AND ACCEPTED:
[ ]
[ ]
By:
-------------------------------------
Name:
Title:
24
SCHEDULE 1
PURCHASERS
25
EXHIBIT A
FORM OF PURCHASER'S LETTER
A-1
EXHIBIT B
REGISTRATION RIGHTS AGREEMENT
B-1
EXHIBIT C
FORM OF ESCROW AGREEMENT
C-1
EXHIBIT D
FORM OF OPINION OF COMPANY COUNSEL
D-1
EXHIBIT E
FORM OF OPINION OF CRAVATH, SWAINE & ▇▇▇▇▇ LLP
E-1
EXHIBIT F
FORM OF OPINION OF SELLER'S SENIOR COUNSEL
F-1