Patriot Coal Corporation Equity Underwriting Agreement Standard Provisions
Exhibit
1.1
Patriot
Coal Corporation
Equity Underwriting
Agreement Standard Provisions
From time to time, Patriot Coal
Corporation, a Delaware corporation (the “Company”), may enter into one or more
underwriting agreements in the Form of Annex A hereto that incorporate by
reference these Standard Provisions (collectively with these Standard
Provisions, an “Underwriting Agreement”) and that provide for the sale of its
Common Stock, par value $0.01 per share, (the “Underwritten Securities”) to the
several Underwriters (the “Underwriters”) named in the Underwriting Agreement,
for whom the Underwriter(s) named therein shall act as representative (the
“Representative”). The Company also proposes to grant to the Underwriters an
option to purchase up to the number of additional shares of Common Stock set
forth in Schedule I to the Underwriting Agreement to cover over-allotments,
if any (the “Option Securities”; the Option Securities, together with the
Underwritten Securities, being hereinafter called the
“Securities”). The Underwriting Agreement, including these Standard
Provisions, is sometimes referred to herein as this “Agreement”.
1. Representations and
Warranties. The Company represents and warrants to, and agrees
with, each Underwriter as set forth below in this Section 1.
(a) The
Company meets the requirements for use of Form S-3 under the Act and has
prepared and filed with the Commission a registration statement (the file number
of which will be set forth in Schedule I to the Underwriting Agreement) on
Form S-3, including a related Base Prospectus, for registration under the
Act of the offering and sale of the Securities. Such Registration
Statement, including any amendments thereto filed prior to the Execution Time,
have become effective. The Company may have filed with the Commission, as part
of an amendment to the Registration Statement or pursuant to Rule 424(b), one or
more preliminary prospectus supplements relating to the Securities, each of
which has previously been furnished to you. The Company will file
with the Commission a final prospectus supplement relating to the Securities in
accordance with Rule 424(b). As filed, such final prospectus
supplement shall contain all information required by the Act and the rules
thereunder, and, except to the extent the Representative shall agree in writing
to a modification, shall be in all substantive respects in the form furnished to
you prior to the Execution Time or, to the extent not completed at the Execution
Time, shall contain only such specific additional information and other changes
(beyond that contained in the Base Prospectus and any Preliminary Prospectus) as
the Company has advised you, prior to the Execution Time, will be included or
made therein. The Registration Statement, at the Execution Time,
meets the requirements set forth in Rule 415(a)(1)(x). The
initial Effective Date of the Registration Statement was not earlier than the
date three years before the Execution Time.
Any reference herein to the
Registration Statement, the Base Prospectus, any Preliminary Prospectus or the
Final Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Exchange Act on or before the Effective Date of the
Registration Statement or the issue date of the Base Prospectus, any Preliminary
Prospectus or the Final Prospectus, as the case
may be;
and any reference herein to the terms “amend,” “amendment” or “supplement” with
respect to the Registration Statement, the Base Prospectus, any Preliminary
Prospectus or the Final Prospectus shall be deemed to refer to and include the
filing of any document under the Exchange Act after the Effective Date of the
Registration Statement or the issue date of the Base Prospectus, any Preliminary
Prospectus or the Final Prospectus, as the case may be, deemed to be
incorporated therein by reference. Certain terms used herein are
defined in Section 20 hereof.
(b) On each
Effective Date, the Registration Statement did, and when the Final Prospectus is
first filed in accordance with Rule 424(b) and on the Closing Date (as
defined herein) and on any date on which Option Securities are purchased, if
such date is not the Closing Date (a “settlement date”), the Final Prospectus
(and any supplement thereto) will, comply in all material respects with the
applicable requirements of the Act, the Exchange Act and the respective rules
thereunder; on each Effective Date and at the Execution Time, the Registration
Statement did not and will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and on the date of any
filing pursuant to Rule 424(b) and on the Closing Date and any settlement
date, the Final Prospectus (together with any supplement thereto) will not
include any 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; provided, however, that the
Company makes no representations or warranties as to the information
contained in or omitted from the Registration Statement or the Final Prospectus
(or any supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter through
the Representative specifically for inclusion in the Registration Statement or
the Final Prospectus (or any supplement thereto), it being understood and agreed
that the only such information furnished by or on behalf of any Underwriter
consists of the information described as such in Section 8 hereof.
(c) The Disclosure Package and the price to the public, the number
of Underwritten Securities and the number of Option Securities to be included on
the cover page of the Final Prospectus, when taken together as a whole, does not
contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. The
preceding sentence does not apply to statements in or omissions from the
Disclosure Package based upon and in conformity with written information
furnished to the Company by any Underwriter through the Representative
specifically for use therein, it being understood and agreed that the only such
information furnished by or on behalf of any Underwriter consists of the
information described as such in Section 8 hereof.
(d) At the
earliest time after the filing of the Registration Statement that the Company or
another offering participant made a bona fide offer (within the
meaning of Rule 164(h)(2)) of the Securities, the Company was not and is not an
Ineligible Issuer (as defined in Rule 405), without taking account of any
determination by the Commission pursuant to Rule 405 that it is not necessary
that the Company be considered an Ineligible Issuer.
(e) Each
Issuer Free Writing Prospectus does not include any information that conflicts
with the information contained in the Registration Statement, including any
document incorporated therein by reference and any prospectus supplement deemed
to be a part thereof that has not been superseded or modified. The
foregoing sentence does not apply to statements in or omissions from any Issuer
Free Writing Prospectus based upon and in conformity with written information
furnished to the Company by any Underwriter through the Representative
specifically for use therein, it being understood and agreed that the only such
information furnished by or on behalf of any Underwriter consists of the
information described as such in Section 8 hereof.
(f) 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 Prospectus will not be, an “investment company”
as defined in the Investment Company Act.
(g) The
Company is subject to and in compliance in all material respects with the
reporting requirements of Section 13 or Section 15(d) of the Exchange
Act.
(h) The
Company has not paid or agreed to pay to any person any compensation for
soliciting another to purchase any securities of the Company (except as
contemplated in this Agreement).
(i) The
Company has not taken, directly or indirectly, any action designed to or that
has constituted or that might reasonably be expected to cause or result, under
the Exchange Act or otherwise, in stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of the
Securities.
(j) Each of
the Company and its subsidiaries has been duly incorporated or organized and is
validly existing as a corporation, limited liability company or other entity in
good standing under the laws of the jurisdiction in which it is formed with full
corporate power and authority to own or lease, as the case may be, and to
operate its properties and conduct its business as described in the Disclosure
Package and the Final Prospectus, and is duly qualified to do business as a
foreign corporation and is in good standing under the laws of each jurisdiction
that requires such qualification, except for such jurisdictions where the
failure to so qualify or to be in good standing would not result in a Material
Adverse Effect.
(k) All the
outstanding shares of capital stock or other equity or ownership interests of
each Significant Subsidiary have been duly authorized and validly issued and are
fully paid and nonassessable, and, except as otherwise set forth in the
Disclosure Package and the Final Prospectus, all outstanding shares of capital
stock or other equity or ownership interests of the Significant Subsidiaries are
owned by the Company either directly or through a subsidiary that is, except as
otherwise set forth in the Disclosure Package and the Final Prospectus,
wholly-owned by the Company, free and clear of any security interest, claim,
lien or encumbrance, except in each case as set forth in the Disclosure Package
and the Final Prospectus.
(l) The
Company’s authorized equity capitalization is as set forth in the Disclosure
Package and the Final Prospectus; the capital stock of the Company conforms to
the description thereof contained in the Disclosure Package and the Final
Prospectus; the outstanding shares of Common Stock have been duly authorized and
validly issued and are fully paid and nonassessable; the Securities
have been duly authorized and, when issued and delivered to and paid for by the
Underwriters pursuant to this Agreement, will be fully paid and nonassessable;
the holders of outstanding shares of capital stock of the Company are not
entitled to preemptive or other rights to subscribe for the Securities or the
shares of Common Stock issuable upon conversion thereof; and, except as set
forth in the Disclosure Package and the Final Prospectus, no options, warrants
or other rights to purchase, agreements or other obligations to issue, or rights
to convert any obligations into or exchange any securities for, shares of
capital stock of or ownership interests in the Company are outstanding, other
than issuances pursuant to employee benefit plans or upon exercise of
outstanding options as described in the Disclosure Package and the Final
Prospectus.
(m) The
statements in the Preliminary Prospectus and the Final Prospectus listed in the
Underwriting Agreement fairly summarize the matters therein described in all
material respects.
(n) This
Agreement has been duly authorized, executed and delivered by the
Company.
(o) No
consent, approval, authorization, filing with or order of any court or
governmental agency or body is required in connection with the transactions
contemplated herein, except such as may be required under the blue sky laws of
any jurisdiction in which the Securities are offered and sold.
(p) None of
the execution and delivery of this Agreement, the issuance and sale of the
Securities, or the consummation of any other of the transactions herein, or the
fulfillment of the terms hereof will conflict with, result in a breach or
violation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or its subsidiaries pursuant to (i) the charter or by-laws
or comparable constituting documents of the Company or its subsidiaries; (ii)
the terms of any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation, condition, covenant or
instrument to which the Company or its subsidiaries is a party or bound or to
which its or their property is subject; or (iii) any statute, law, rule,
regulation, judgment, order or decree of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or its subsidiaries, or any of its or their
properties, except in the case of clause (ii) and (iii) for any such conflict,
breach, violation or imposition as would not result in a Material Adverse Effect
on the condition (financial or otherwise), prospects, 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 Effect”).
(q) The
consolidated historical financial statements and schedules of the Company and
its consolidated subsidiaries included or incorporated by reference in the
Disclosure Package and the Final Prospectus present fairly in all material
respects the financial condition, results of operations and cash flows of the
Company, as the case may be, as of the dates and for the periods indicated,
comply as to form with the applicable accounting requirements of Regulation S-X
and have been prepared in conformity with generally accepted accounting
principles in the United States applied on a consistent basis throughout the
periods involved (except as otherwise noted therein); and the selected financial
data set forth in the captions listed in the Underwriting Agreement in the
Preliminary Prospectus and the Final Prospectus fairly present, on the basis
stated in the Preliminary Prospectus and the Final Prospectus, the information
included or incorporated by reference therein.
(r) No
action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or its subsidiaries or
its property is pending or, to the knowledge of the Company, threatened that (i)
could reasonably be expected to have a Material Adverse Effect on the
performance of this Agreement or the consummation of any of the transactions
contemplated hereby or (ii) could reasonably be expected to have a Material
Adverse Effect, except as set forth in or contemplated in the Disclosure Package
and the Final Prospectus (exclusive of any amendment or supplement
thereto).
(s) Each of
the Company and its subsidiaries owns or leases all such properties as are
necessary to the conduct of its operations as presently conducted except where
the failure to so own or lease properties would not have a Material Adverse
Effect and except as set forth or contemplated in the Disclosure Package and the
Final Prospectus (exclusive of any amendment or supplement
thereto).
(t) None of
the Company or its subsidiaries is in violation or default of (i) any provision
of its charter or bylaws or comparable constituting documents; (ii) the terms of
any indenture, contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or instrument to
which it is a party or bound or to which its property is subject; or (iii) any
statute, law, rule, regulation, judgment, order, decree or requirement
applicable to the Company or its subsidiaries, of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or such subsidiary or any of its properties, as
applicable, except, with respect to clauses (ii) and (iii), as would not result
in a Material Adverse Effect.
(u) Ernst
& Young LLP and PricewaterhouseCoopers LLP, who have certified certain
financial statements of the Company and/or its consolidated subsidiaries and
delivered its reports with respect to the audited consolidated financial
statements and schedules included, incorporated by reference and/or reflected in
the Disclosure Package and the Final Prospectus, are independent public
accountants with respect to the Company within the meaning of the
Act.
(v) There are
no stamp or other issuance or transfer taxes or duties or other similar fees or
charges required to be paid in connection with the execution and delivery of
this Agreement or the issuance or sale of the Securities.
(w) The
Company (i) has timely filed all applicable tax returns that are required to be
filed or has requested extensions thereof (except in any case in which the
failure so to file would not have a Material Adverse Effect and except as set
forth in or contemplated in the Disclosure Package and the Final Prospectus
(exclusive of any amendment or supplement thereto)) and all such tax returns are
correct and complete in all material respects, and (ii) has timely paid all
taxes required to be paid by it and any other assessment, fine or penalty levied
against it, to the extent that any of the foregoing is due and payable, except
for any such tax or assessment, fine or penalty that is currently being
contested in good faith or as would not have a Material Adverse Effect and
except as set forth in or contemplated in the Disclosure Package and the Final
Prospectus (exclusive of any amendment or supplement thereto).
(x) No labor
problem or dispute with the employees of the Company or its subsidiaries exists
or to the Company’s knowledge is threatened or imminent, and the Company is not
aware of any existing or imminent labor disturbance by the employees of any of
its or its subsidiaries’ principal suppliers, contractors or customers, except
as would not have a Material Adverse Effect, and except as set forth in or
contemplated in the Disclosure Package and the Final Prospectus (exclusive of
any amendment or supplement thereto).
(y) Each of
the Company and its subsidiaries is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are prudent
and customary in the businesses in which they are engaged; all policies of
insurance and fidelity or surety bonds insuring the Company and its subsidiaries
or their respective businesses, assets, employees, officers and directors are in
full force and effect in all material respects; the Company and its subsidiaries
are in compliance in all material respects with the terms of such policies and
instruments; there are no material claims by the Company or its subsidiaries
under any such policy or instrument as to which any insurance company is denying
liability or defending under a reservation of rights clause; none of the Company
or its subsidiaries has been refused any insurance coverage sought or applied
for; and none of the Company or its subsidiaries has any reason to believe that
it will not be able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar insurers as may be
necessary to continue its business at a cost that would not have a Material
Adverse Effect except as set forth in or contemplated in the Disclosure Package
and the Final Prospectus (exclusive of any amendment or supplement
thereto).
(z) No
subsidiary of the Company is currently prohibited, directly or indirectly, from
paying any dividends to the Company, from making any other distribution on such
subsidiary’s capital stock, from repaying to the Company any loans or advances
to such subsidiary from the Company or from transferring any of such
subsidiary’s property or assets to the Company or any other subsidiary of the
Company,
except as
described in or contemplated in the Disclosure Package and the Final Prospectus
(exclusive of any amendment or supplement thereto).
(aa) Except as
set forth in the Disclosure Package and the Final Prospectus (exclusive of any
amendment or supplement thereto), the Company and its subsidiaries have such
permits, licenses, franchises, certificates, consents, orders and other
approvals or authorizations of any governmental or regulatory authority
(“Permits”), including, without limitation, any permits or approvals required by
the United States Environmental Protection Agency, the United States Office of
Surface Mining Reclamation and Enforcement and corresponding state agencies, as
are necessary under applicable law to own their properties and to conduct their
respective businesses in the manner described in the Disclosure Package and the
Final Prospectus, except to the extent that the failure to have such Permits
would not reasonably be expected to have a Material Adverse Effect. Except as
described in or contemplated in the Disclosure Package and the Final Prospectus
(exclusive of any amendment or supplement thereto), (i) the Company and their
respective subsidiaries have performed all their material obligations with
respect to the Permits, (ii) to the best knowledge of the Company, no event has
occurred that allows, or after notice or lapse of time would reasonably be
expected to result in, the revocation or termination thereof or in any other
material impairment of the rights of the holder of any such Permit, and (iii)
none of the Company or any of its subsidiaries has received any written notice
of proceedings or potential proceedings relating to the revocation or
termination of the Permits, except to the extent that any such failure to
perform, revocation, termination, impairment or proceedings would not have a
Material Adverse Effect.
(bb) The
Company and its consolidated subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management’s general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles in the United States and to maintain asset accountability;
(iii) access to assets is permitted only in accordance with management’s general
or specific authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences. The Company and its
consolidated subsidiaries’ internal controls over financial reporting were
effective as of the December 31st prior
to the date of the Underwriting Agreement and are effective as of the date
hereof. The Company is not aware of any material weakness in its or
its consolidated subsidiaries’ internal control over financial
reporting.
(cc) The
Company and its subsidiaries maintain “disclosure controls and procedures” (as
such term is defined in Rule 13a-15(e) under the Exchange Act); such disclosure
controls and procedures are effective.
(dd) The Company and its subsidiaries (i) are
in compliance with any and all applicable statutes, laws, rules, regulations,
judgments, orders, decrees or requirements 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 required of them under applicable Environmental Laws to conduct their
respective businesses; (iii) have not received notice of any actual or potential
liability under any Environmental Law and have not been named as a “potentially
responsible party” under the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as amended; and (iv) are not aware of the presence,
spill, discharge, disposal or release of or exposure to hazardous or toxic
substances, materials or wastes relating to their properties or operations that
would require investigation or remediation pursuant to Environmental Laws,
except, for each of clause (i), (ii), (iii) and (iv) above, as would not,
individually or in the aggregate, have a Material Adverse Effect, or as set
forth in or contemplated in the Disclosure Package and the Final Prospectus
(exclusive of any amendment or supplement thereto).
(ee) The
subsidiaries listed on Schedule 5 to the Underwriting Agreement attached hereto
are the only “significant subsidiaries” of the Company as defined in Rule 1-02
of Regulation S-X (the “Significant Subsidiaries”).
(ff) None of
the following events has occurred or exists: (i) a failure to fulfill
the obligations, if any, under the minimum funding standards of ▇▇▇▇▇▇▇ ▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Employee Retirement Income Security Act of 1974, as amended
(“ERISA”), and the regulations and published interpretations thereunder with
respect to a Plan, determined without regard to any waiver of such obligations
or extension of any amortization period; (ii) an audit or investigation by the
Internal Revenue Service, the U.S. Department of Labor, the Pension Benefit
Guaranty Corporation or any other U.S. federal or state governmental agency or
any foreign regulatory agency with respect to the employment or compensation of
employees by any of the Company or its subsidiaries that could have a Material
Adverse Effect; (iii) any breach of any contractual obligation, or any violation
of law or applicable qualification standards, with respect to the employment or
compensation of employees by the Company or its subsidiaries that could have a
Material Adverse Effect. None of the following events has occurred or
is reasonably likely to occur: (i) a material increase in the
aggregate amount of contributions required to be made to all Plans in the
current fiscal year of the Company and its subsidiaries compared to the amount
of such contributions made in the most recently completed fiscal year of the
Company and its subsidiaries; (ii) a material increase in the “accumulated
post-retirement benefit obligations” (within the meaning of Statement of
Financial Accounting Standards 106) for the current fiscal year of the Company
and its subsidiaries compared to the amount of such obligations in the most
recently completed fiscal year of the Company and its subsidiaries; (iii) any
event or condition giving rise to a liability under Title IV of ERISA that could
have a Material Adverse Effect; or (iv) the filing of a claim by one or more
employees or former employees of the Company or its subsidiaries, related to
their employment that could have a Material Adverse Effect. For
purposes of this paragraph, the term “Plan” means a plan (within the meaning of
Section 3(3) of ERISA) subject to Title IV of ERISA with respect to which the
Company or its subsidiaries may have any liability.
(gg) None of
the Company or its subsidiaries, or to the knowledge of the Company, any
director, officer, agent, employee or Affiliate of the Company or its
subsidiaries is aware of or has
taken any action, directly or indirectly, that would result in a
violation by such persons of the
Foreign Corrupt Practices Act of 1977, as amended, and the rules and
regulations thereunder (the
“FCPA”), including, without limitation, making use of the mails or any means or
instrumentality of interstate commerce corruptly in furtherance of an offer,
payment, promise to pay or authorization of the payment of any money, or other
property, gift, promise to give, or authorization of the giving of anything of
value to any “foreign official” (as such term is defined in the FCPA) or any
foreign political party or official thereof or any candidate for foreign
political office, in contravention of the FCPA; and the Company and its
subsidiaries and, to the knowledge of the Company, its Affiliates have conducted their businesses in
compliance with the FCPA and have instituted and maintain policies and
procedures designed to ensure, and which are reasonably expected to continue to
ensure, continued compliance therewith.
(hh) The
operations of the Company and its subsidiaries are and have been conducted at
all times in compliance with applicable financial recordkeeping and reporting
requirements and money laundering statutes and the rules and regulations
thereunder and any related or similar rules, regulations or guidelines, issued,
administered or enforced by any governmental agency (collectively, the “Money
Laundering Laws”) and no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Company
and its subsidiaries with respect to the Money Laundering Laws is pending or, to
the knowledge of the Company, threatened.
(ii) None of
the Company or its subsidiaries, or, to the knowledge of the Company, any
director, officer, agent, employee or Affiliate of the Company or any of its
subsidiaries is currently subject to any sanctions administered by the Office of
Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”); and the
Company will not directly or indirectly use the proceeds of the offering of the
Securities hereunder, or lend, contribute or otherwise make available such
proceeds to any subsidiary, joint venture partner or other person or entity, for
the purpose of financing the activities of any person currently subject to any
U.S. sanctions administered by OFAC.
(jj) There is and has been no failure on the
part of the Company and any of the Company’s directors or officers, in their
capacities as such, to comply with any provision of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of
2002 and the rules and regulations promulgated in connection therewith,
including Section 402 related to loans and Sections 302 and 906 related to
certifications.
(kk) The
qualitative and quantitative data regarding proven and probable coal reserves of
the Company included or incorporated by reference in the Disclosure Package and
the Final Prospectus (x) were derived in accordance with the procedures
described in the Disclosure Package and the Final Prospectus and all applicable
industry standards, including Industry Guide 7 under the Exchange Act, and (y)
have been reviewed by the professionals set forth in the Underwriting
Agreement.
(ll) Prior to
the date hereof, the Company has furnished to the Representatives letters, each
substantially in the form of Exhibit A to the Underwriting Agreement, duly
executed
by each officer and director of the Company listed on Exhibit B to the
Underwriting Agreement and addressed to the Representatives.
Any
certificate signed by any officer of the Company and delivered to the
Representative or counsel for the Underwriters in connection with the offering
of the Securities shall be deemed a representation and warranty by the Company,
as to matters covered thereby, to each Underwriter.
2. Purchase and
Sale. (a) Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at the purchase price
set forth in Schedule I to the Underwriting Agreement the number of
Underwritten Securities set forth opposite such Underwriter’s name in
Schedule II to the Underwriting Agreement.
(b) Subject
to the terms and conditions and in reliance upon the representations and
warranties herein set forth, the Company hereby grants an option to the several
Underwriters to purchase, severally and not jointly, up to the number of Option
Securities set forth in Schedule I to the Underwriting Agreement at the same
purchase price per share as the Underwriters shall pay for the Underwritten
Securities. Said option may be exercised only to cover
over-allotments in the sale of the Underwritten Securities by the
Underwriters. Said option may be exercised in whole or in part at any
time on or before the 30th day after the date of the Final Prospectus upon
written or telegraphic notice by the Representatives to the Company setting
forth the number of Option Securities as to which the several Underwriters are
exercising the option and the settlement date. The number of Option
Securities to be purchased by each Underwriter shall be the same percentage of
the total number of Option Securities to be purchased by the several
Underwriters as such Underwriter is purchasing of the Underwritten Securities,
subject to such adjustments as you in your absolute discretion shall make to
eliminate any fractional shares.
3. Delivery and
Payment. Delivery of and payment for the Underwritten
Securities and the Option Securities (if the option provided for in
Section 2(b) hereof shall have been exercised on or before the third
Business Day immediately preceding the Closing Date) shall be made on the date
and at the time specified in Schedule I to the Underwriting Agreement or at
such time on such later date not more than three Business Days after the
foregoing date as the Representative shall designate, which date and time may be
postponed by agreement between the Representative and the Company or as provided
in Section 9 hereof (such date and time of delivery and payment for
the Securities being herein called the “Closing Date”). Delivery of
the Securities shall be made to the Representative for the respective accounts
of the several Underwriters against payment by the several Underwriters through
the Representative of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same-day funds to an account specified by
the Company. Delivery of the Underwritten Securities and the Option
shall be made through the facilities of The Depository Trust Company unless the
Representative shall otherwise instruct.
If the
option provided for in Section 2(b) hereof is exercised after the third Business
Day immediately preceding the Closing Date, the Company will deliver the Option
Securities (at the expense of the Company) to the Representatives on the date
specified by the Representatives
(which
shall be within three Business Days after exercise of said option) for the
respective accounts of the several Underwriters, against payment by the several
Underwriters through the Representatives of the purchase price thereof to or
upon the order of the Company by wire transfer payable in same-day funds to an
account specified by the Company. If settlement for the Option
Securities occurs after the Closing Date, the Company will deliver to the
Representatives on the settlement date for the Option Securities, and the
obligation of the Underwriters to purchase the Option Securities shall be
conditioned upon receipt of, supplemental opinions, certificates and letters
confirming as of such date the opinions, certificates and letters delivered on
the Closing Date pursuant to Section 6 hereof.
4. Offering by
Underwriters. It is understood that the several Underwriters
propose to offer the Securities for sale to the public as set forth in the Final
Prospectus.
5. Agreements. The
Company agrees with the several Underwriters that:
(a) Prior to
the termination of the offering of the Securities, the Company will not file any
amendment of the Registration Statement or supplement (including the Final
Prospectus or any Preliminary Prospectus) to the Base Prospectus or any
Rule 462(b) Registration Statement unless the Company has furnished you a
copy for your review prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object. The Company
will cause the Final Prospectus, properly completed, and any supplement thereto
to be filed in a form approved by the Representative with the Commission
pursuant to Rule 424(b) within the time period prescribed and will provide
evidence satisfactory to the Representative of such timely
filing. The Company will promptly advise the Representative (i) when
the Final Prospectus, and any supplement thereto, shall have been filed (if
required) with the Commission pursuant to Rule 424(b) or when any
Rule 462(b) Registration Statement shall have been filed with the
Commission, (ii) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall have been filed or
become effective, (iii) of any request by the Commission or its staff for
any amendment of the Registration Statement, or any Rule 462(b)
Registration Statement, or for any supplement to the Final Prospectus or for any
additional information, (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or of any
notice objecting to its use or the institution or threatening of any proceeding
for that purpose and (v) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Securities for sale
in any jurisdiction or the institution or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the
issuance of any such stop order or the occurrence of any such suspension or
objection to the use of the Registration Statement and, upon such issuance,
occurrence or notice of objection, to obtain as soon as possible the withdrawal
of such stop order or relief from such occurrence or objection, including, if
necessary, by filing an amendment to the Registration Statement or a new
registration statement and using its best efforts to have such amendment or new
registration statement declared effective as soon as practicable.
(b) If, at
any time prior to the filing of the Final Prospectus pursuant to Rule 424(b),
any event occurs as a result of which the Disclosure Package would include any
untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein in the light of the circumstances under which they
were made or the circumstances then prevailing not misleading, the Company will
(i) notify promptly the Representative so that any use of the Disclosure Package
may cease until it is amended or supplemented; (ii) amend or supplement the
Disclosure Package to correct such statement or omission; and (iii) supply any
amendment or supplement to you in such quantities as you may reasonably
request.
(c) If, at
any time when a prospectus relating to the Securities is required to be
delivered under the Act (including in circumstances where such requirement may
be satisfied pursuant to Rule 172), any event occurs as a result of which the
Final Prospectus as then supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they were made
at such time not misleading, or if it shall be necessary to amend the
Registration Statement, file a new registration statement or supplement the
Final Prospectus to comply with the Act or the Exchange Act or the respective
rules thereunder, including in connection with use or delivery of the Final
Prospectus, the Company promptly will (i) notify the Representative of any
such event, (ii) prepare and file with the Commission, subject to the
second sentence of paragraph (a) of this Section 5, an amendment or
supplement or new registration statement which will correct such statement or
omission or effect such compliance, (iii) use its best efforts to have any
amendment to the Registration Statement or new registration statement declared
effective as soon as practicable in order to avoid any disruption in use of the
Final Prospectus and (iv) supply any supplemented Final Prospectus to you
in such quantities as you may reasonably request.
(d) As soon
as practicable, the Company will make generally available to its security
holders and to the Representative an earnings statement or statements of the
Company and its subsidiaries which will satisfy the provisions of
Section 11(a) of the Act and Rule 158.
(e) The
Company will furnish to the Representative and counsel for the Underwriters,
without charge, signed copies of the Registration Statement (including exhibits
thereto) and to each other Underwriter a copy of the Registration Statement
(without exhibits thereto) and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act (including in circumstances
where such requirement may be satisfied pursuant to Rule 172), as many copies of
each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing
Prospectus and any supplement thereto as the Representative may reasonably
request. The Company will pay the expenses of printing or other
production of all documents relating to the offering.
(f) The
Company will arrange, if necessary, for the qualification of the Securities for
sale by the Representative under the laws of such jurisdictions as the
Representative may designate and will maintain such qualifications in effect so
long as required for the distribution of the Securities; provided that in no
event shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action that would
subject it to service of process in suits, other
than
those arising out of the offering or sale of the Securities, in any jurisdiction
where it is not now so subject.
(g) The
Company agrees that, unless it has or shall have obtained the prior written
consent of the Representative, and each Underwriter, severally and not jointly,
agrees with the Company that, unless it has or shall have obtained, as the case
may be, the prior written consent of the Company, it has not made and will not
make any offer relating to the Securities that would constitute an Issuer Free
Writing Prospectus or that would otherwise constitute a “free writing
prospectus” (as defined in Rule 405) required to be filed by the Company with
the Commission or retained by the Company under Rule 433; provided that the
prior written consent of the parties hereto shall be deemed to have been given
in respect of the Free Writing Prospectuses included in Schedule III to the
Underwriting Agreement and any electronic road show. Any such free
writing prospectus consented to by the Representative or the Company is
hereinafter referred to as a “Permitted Free Writing Prospectus.” The
Company agrees that (x) it has treated and will treat, as the case may be, each
Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y)
it has complied and will comply, as the case may be, with the requirements of
Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including
in respect of timely filing with the Commission, legending and record
keeping.
(h) The
Company will not for a period of 90 days following the Execution Time, without
the prior written consent of the Representatives, directly or indirectly, (i)
offer, sell, contract to sell, pledge or otherwise dispose of, (ii) 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 Affiliate
of the Company or any person in privity with the Company or any Affiliate of the
Company of, (iii) file (or participate in the filing of) a registration
statement with the Commission in respect of, or (iv) establish or increase a put
equivalent position or liquidate or decrease a call equivalent position within
the meaning of Section 16 of the Exchange Act in respect of, any shares of
capital stock of the Company or any securities convertible into, or exercisable
or exchangeable for, shares of capital stock of the Company, or publicly
announce an intention to effect any such transaction; provided, however, that
the Company may issue and sell Common Stock or securities convertible into or
exchangeable for Common Stock pursuant to any employee stock option or benefit
plan, stock ownership plan or dividend reinvestment plan of the Company
described in the Disclosure Package and the Final Prospectus and in effect at
the Execution Time and the Company may issue Common Stock issuable upon the
conversion of securities or the exercise of warrants outstanding at the
Execution Time as described in the Disclosure Package and the Final
Prospectus.
(i) The
Company will not take, directly or indirectly, any action designed to or that
would constitute or that might reasonably be expected to cause or result, under
the Exchange Act or otherwise, in stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of the
Securities.
(j) The
Company agrees to pay the costs and expenses relating to the following
matters: (i) the preparation, printing or reproduction and
filing with the
Commission
of the Registration Statement (including financial statements and exhibits
thereto), each Preliminary Prospectus, the Final Prospectus and each Issuer Free
Writing Prospectus, and each amendment or supplement to any of them;
(ii) the printing (or reproduction) and delivery (including postage, air
freight charges and charges for counting and packaging) of such copies of the
Registration Statement, each Preliminary Prospectus, the Final Prospectus and
each Issuer Free Writing Prospectus, and all amendments or supplements to any of
them, as may, in each case, be reasonably requested for use in connection with
the offering and sale of the Securities; (iii) the preparation, printing,
authentication, issuance and delivery of certificates for the Securities,
including any stamp or transfer taxes in connection with the original issuance
and sale of the Securities; (iv) the printing (or reproduction) and
delivery of this Agreement, any blue sky memorandum and all other agreements or
documents printed (or reproduced) and delivered in connection with the offering
of the Securities; (v) the registration of the Securities under the
Exchange Act and the listing of the Securities on the New York Stock Exchange,
if any; (vi) any registration or qualification of the Securities for offer
and sale under the securities or blue sky laws of the several states (including
filing fees and the reasonable fees and expenses of counsel for the Underwriters
relating to such registration and qualification); (vii) any filings
required to be made with the NASD, Inc. (including filing fees and the
reasonable fees and expenses of counsel for the Underwriters relating to such
filings); (viii) the transportation and other expenses incurred by or on
behalf of Company representatives in connection with presentations to
prospective purchasers of the Securities; (ix) the fees and expenses of the
Company’s accountants and the fees and expenses of counsel (including local and
special counsel) for the Company; and (x) all other costs and expenses
incident to the performance by the Company of its obligations
hereunder.
6. Conditions to the
Obligations of the Underwriters. The obligations of the
Underwriters to purchase the Underwritten Securities and the Option Securities,
as the case may be, shall be subject to the accuracy of the representations and
warranties on the part of the Company contained herein as of the Execution Time
and the Closing Date and any settlement date pursuant to Section 3 hereof,
to the accuracy of the statements of the Company made in any certificates
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions:
(a) The Final
Prospectus, and any supplement thereto, have been filed in the manner and within
the time period required by Rule 424(b); any other material required to be
filed by the Company pursuant to Rule 433(d) under the Act, shall have been
filed with the Commission within the applicable time periods prescribed for such
filings by Rule 433; and no stop order suspending the effectiveness of the
Registration Statement or any notice objecting to its use shall have been issued
and no proceedings for that purpose shall have been instituted or
threatened.
(b) The
Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for
the Company, to furnish to the Representative its opinion and 10b-5 statement,
dated the Closing Date and addressed to the Representative, in substantially the
form of Annex B hereto.
(c) The
Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇, in-house counsel for the
Company, to furnish to the Representative his opinion, dated the Closing Date
and addressed to the Representative, in substantially the form of Annex C
hereto.
(d) The
Representative shall have received from the firm listed in the underwriting
agreement as counsel for the Underwriters, such opinion or opinions, dated the
Closing Date and addressed to the Representative, with respect to the issuance
and sale of the Securities, the Registration Statement, the Disclosure Package,
the Final Prospectus (together with any supplement thereto) and other related
matters as the Representative may reasonably require, and the Company shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(e) The
Company shall have furnished to the Representative a certificate of the Company,
signed by (x) the Chief Executive Officer and (y) the Chief Financial Officer of
the Company, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the Disclosure
Package, the Final Prospectus and any supplements or amendments thereto, and
this Agreement and that to the best of their knowledge:
(i) the
representations and warranties of the Company in this Agreement are true and
correct on and as of the Closing Date with the same effect as if made on the
Closing Date, and the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied hereunder at or
prior to the Closing Date;
(ii) no stop
order suspending the effectiveness of the Registration Statement or any notice
objecting to its use has been issued and no proceedings for that purpose have
been instituted or, to the Company’s knowledge, threatened; and
(iii) since the
date of the most recent financial statements included in the Disclosure Package
and the Final Prospectus (exclusive of any supplement thereto), there has been
no Material Adverse Effect on the condition (financial or otherwise), prospects,
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, except as set forth in or contemplated in the Disclosure Package and
the Final Prospectus (exclusive of any supplement thereto).
(f) At the
Execution Time and at the Closing Date, the Company shall have requested and
caused Ernst & Young LLP to furnish to the Representative letters, dated
respectively as of the Execution Time and as of the Closing Date in form and
substance satisfactory to the Representative.
(g) Subsequent
to the Execution Time or, if earlier, the dates as of which information is given
in the Disclosure Package (exclusive of any amendment thereof) and
the Final
Prospectus (exclusive of any amendment or supplement thereto), there shall not
have been (i) any adverse change or decrease specified in the letter or
letters referred to in paragraph (f) of this Section 6 or
(ii) any change, or any development involving a prospective change, in or
affecting the condition (financial or otherwise), 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, except as set
forth in or contemplated in the Disclosure Package and the Final Prospectus
(exclusive of any amendment or supplement thereto), the effect of which, in any
case referred to in clause (i) or (ii) above, is, in the sole judgment of
the Representative, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Registration Statement (exclusive of any amendment thereof),
the Disclosure Package and the Final Prospectus (exclusive of any amendment or
supplement thereto).
(h) Subsequent
to the Execution 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 Act)
or any notice given of any intended or potential decrease in any such rating or
of a possible change in any such rating that does not indicate the direction of
the possible change.
(i) Prior to
the Closing Date, the Company shall have furnished to the Representative such
further information, certificates and documents as the Representative may
reasonably request.
If any of
the conditions specified in this Section 6 shall not have been fulfilled
when and as provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall not be
reasonably satisfactory in form and substance to the Representative and counsel
for the Underwriters, this Agreement and all obligations of the Underwriters
hereunder may be canceled at, or at any time prior to, the Closing Date by the
Representative. Notice of such cancellation shall be given to the
Company in writing or by telephone or facsimile confirmed in
writing.
The
documents required to be delivered by this Section 6 shall be delivered at
the office of the underwriters’ counsel set forth in the Underwriting
Agreement, on the Closing Date.
7. Reimbursement of
Underwriters’ Expenses. If the sale of the Securities provided
for herein is not consummated because any condition to the obligations of the
Underwriters set forth in Section 6 hereof is not satisfied, because of any
termination pursuant to Section 10 hereof or because of any refusal,
inability or failure on the part of the Company to perform any agreement herein
or comply with any provision hereof other than by reason of a default by any of
the Underwriters, the Company will reimburse the Underwriters severally through
the Representative on demand for all expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Securities.
8. Indemnification and
Contribution. (a) The Company agrees to indemnify
and hold harmless each Underwriter, the directors, officers, employees and
agents of each
Underwriter
and each person who controls any Underwriter within the meaning of either the
Act or the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject
under the Act, the Exchange Act or other U.S. federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact contained in
the registration statement for the registration of the Securities as originally
filed or in any amendment thereof, or in the Base Prospectus, any Preliminary
Prospectus or any other preliminary prospectus supplement relating to the
Securities, the Final Prospectus, any Issuer Free Writing Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by it in connection with investigating or defending
any such loss, claim, damage, liability or action; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any Underwriter through the Representative
specifically for inclusion therein. This indemnity agreement will be
in addition to any liability which the Company may otherwise have.
(b) Each
Underwriter, severally and not jointly, agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers, and each person who
controls the Company within the meaning of either the Act or the Exchange Act,
to the same extent as the foregoing indemnity from the Company to each
Underwriter, but only with reference to written information relating to such
Underwriter furnished to the Company by or on behalf of such Underwriter through
the Representative specifically for inclusion in the documents referred to in
the foregoing indemnity. This indemnity agreement will be in addition
to any liability which any Underwriter may otherwise have. The
Company acknowledges that the statements set forth in the Underwriting Agreement
constitute the only information furnished in writing by or on behalf of the
several Underwriters for inclusion in any Preliminary Prospectus, the Final
Prospectus or any Issuer Free Writing Prospectus.
(c) Promptly
after receipt by an indemnified party under this Section 8 of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 8,
notify the indemnifying party in writing of the commencement thereof; but the
failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it
did not otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from
any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel
of the
indemnifying party’s choice at the indemnifying party’s expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such
counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party’s election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the indemnifying
party to represent the indemnified party would present such counsel with a
conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of the institution of such action or
(iv) the indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(d) In
the event that the indemnity provided in paragraph (a) or (b) of this
Section 8 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, the Company and the Underwriters severally agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending the same) (collectively “Losses”) to which the Company and one or more
of the Underwriters may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and by the
Underwriters on the other from the offering of the Securities; provided, however, that in no
case shall any Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Securities) be responsible for any
amount in excess of the underwriting discount or commission applicable to the
Securities purchased by such Underwriter hereunder. If the allocation
provided by the immediately preceding sentence is unavailable for any reason,
the Company and the Underwriters severally shall contribute in such proportion
as is appropriate to reflect not only such relative benefits but also the
relative fault of the Company on the one hand and of the Underwriters on the
other in connection with the statements or omissions which resulted in such
Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to
be equal to the total net proceeds from the offering (before deducting expenses)
received by it, and benefits received by the Underwriters shall be deemed to be
equal to the total underwriting discounts and commissions, in each case as set
forth on the cover page of
the Final
Prospectus. Relative fault shall be determined by reference to, among
other things, whether any untrue or any alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information provided by the Company on the one hand or the Underwriters on the
other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The Company and the Underwriters agree that it would not be
just and equitable if contribution were determined by pro rata allocation or any
other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of
this paragraph (d), no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person
who controls an Underwriter within the meaning of either the Act or the Exchange
Act and each director, officer, employee and agent of an Underwriter shall have
the same rights to contribution as such Underwriter, and each person who
controls the Company within the meaning of either the Act or the Exchange Act
and each officer and director of the Company shall have the same rights to
contribution as the Company, subject in each case to the applicable terms and
conditions of this paragraph (d).
9. Default by an
Underwriter. If any one or more Underwriters shall fail to
purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule II to the Underwriting Agreement
bears to the aggregate amount of Securities set forth opposite the names of all
the remaining Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the
event that the aggregate amount of Securities which the defaulting Underwriter
or Underwriters agreed but failed to purchase shall exceed 10% of the aggregate
amount of Securities set forth in Schedule II to the Underwriting
Agreement, the remaining Underwriters shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the Securities, and if
such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Company. In the event of a default by any Underwriter as set
forth in this Section 9, the Closing Date shall be postponed for such period,
not exceeding five Business Days, as the Representative shall determine in order
that the required changes in the Registration Statement and the Final Prospectus
or in any other documents or arrangements may be effected. Nothing
contained in this Agreement shall relieve any defaulting Underwriter of its
liability, if any, to the Company and any nondefaulting Underwriter for damages
occasioned by its default hereunder.
10. Termination. This
Agreement shall be subject to termination in the absolute discretion of the
Representative, by notice given to the Company prior to delivery of, and payment
for, the Securities, if at any time prior to such delivery and payment
(i) trading in the Company’s Common Stock shall have been suspended by the
Commission or the New York Stock Exchange or trading in securities generally on
the New York Stock Exchange shall have been
suspended or limited or minimum prices shall have been established on such
exchange, (ii) a banking moratorium shall have been declared either by U.S.
federal or New York State
authorities
or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war, or
other calamity or crisis the effect of which on financial markets is such as to
make it, in the sole judgment of the Representative, impractical or inadvisable
to proceed with the offering or delivery of the Securities as contemplated by
any Preliminary Prospectus or the Final Prospectus (exclusive of any amendment
or supplement thereto).
11. Representations and
Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and of the Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of the officers,
directors, employees, agents or controlling persons referred to in Section 8
hereof, and will survive delivery of and payment for the
Securities. The provisions of Sections 7 and 8 hereof shall survive
the termination or cancellation of this Agreement.
12. Notices. All
communications hereunder will be in writing and effective only on receipt, and,
if sent to the Representative, will be mailed, delivered or telefaxed to (a) the
Representative at the address and fax details set forth in the Underwriting
Agreement and (b) Underwriter’s counsel at the address and fax details set forth
in the Underwriting Agreement; or, if sent to the Company, will be mailed,
delivered or telefaxed to Patriot Coal Corporation (fax no.: (▇▇▇) ▇▇▇-▇▇▇▇) and
confirmed to it at Patriot Coal Corporation, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, with a copy to ▇▇▇▇▇ ▇▇▇▇
& ▇▇▇▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. (fax no.: (▇▇▇) ▇▇▇-▇▇▇▇) and
confirmed to ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇.
13. Successors. This
Agreement will inure to the benefit of and be binding upon the parties hereto
and their respective successors and the officers, directors, employees, agents
and controlling persons referred to in Section 8 hereof, and no other person
will have any right or obligation hereunder.
14. No fiduciary duty.
The Company hereby acknowledges that (a) the purchase and sale of the Securities
pursuant to this Agreement is an arm’s-length commercial transaction between the
Company, on the one hand, and the Underwriters and any Affiliate through which
it may be acting, on the other, (b) the Underwriters are acting as principals
and not as agents or fiduciaries of the Company and (c) the Company’s engagement
of the Underwriters in connection with the offering and the
process leading up to the offering is as independent contractors and not in any
other capacity. Furthermore, the Company agrees that it is solely responsible
for making its own judgments in connection with the offering (irrespective of
whether any of the Underwriters has advised or is currently advising the Company
on related or other matters). The Company agrees that it will not
claim that the Underwriters have rendered advisory services of any nature or
respect, or owe an agency, fiduciary or similar duty to the Company, in
connection with such transaction or the process leading thereto.
15. Integration. This
Agreement supersedes all prior agreements and understandings (whether written or
oral) between the Company and the Underwriters, or any of them, with respect to
the subject matter hereof.
16. Applicable
Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts
made and to be performed within the State of New York.
17. Waiver of Jury
Trial. The Company hereby irrevocably waives, to the fullest
extent permitted by applicable law, any and all right to trial by jury in any
legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
18. Counterparts. This
Agreement may be signed in one or more counterparts, each of which shall
constitute an original and all of which together shall constitute one and the
same agreement.
19. Headings. The
section headings used herein are for convenience only and shall not affect the
construction hereof.
20. Definitions. The
terms that follow, when used in this Agreement, shall have the meanings
indicated.
“Act”
shall mean the U.S. Securities Act of 1933, as amended and the rules and
regulations of the Commission promulgated thereunder.
“Affiliate”
shall have the meaning specified in Rule 501(b) of Regulation D.
“Base
Prospectus” shall mean the base prospectus referred to in paragraph 1(a) above
contained in the Registration Statement at the Execution Time.
“Business
Day” shall mean any day other than a Saturday, a Sunday or a legal holiday
or a day on which banking institutions or trust companies are authorized or
obligated by law to close in New York City.
“Commission”
shall mean the Securities and Exchange Commission.
“Disclosure
Package” shall mean (i) the Base Prospectus, (ii) the Preliminary Prospectus
used most recently prior to the Execution Time, (iii) the Issuer Free Writing
Prospectuses, if any, identified in Schedule III to the Underwriting Agreement
and (iv) any other Free Writing Prospectus that the parties hereto shall
hereafter expressly agree in writing to treat as part of the Disclosure
Package.
“Effective
Date” shall mean each date and time that the Registration Statement, and any
post-effective amendment or amendments thereto and any Rule 462(b)
Registration Statement became or becomes effective.
“Exchange
Act” shall mean the U.S. Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission promulgated thereunder.
“Execution
Time” shall mean the date and time that the Underwriting Agreement is executed
and delivered by the parties hereto.
“Final
Prospectus” shall mean the prospectus supplement relating to the Securities that
was first filed pursuant to Rule 424(b) after the Execution Time, together
with the Base Prospectus.
“Free
Writing Prospectus” shall mean a free writing prospectus, as defined in Rule
405.
“Investment
Company Act” shall mean the U.S. Investment Company Act of 1940, as amended, and
the rules and regulations of the Commission promulgated thereunder.
“Issuer
Free Writing Prospectus” shall mean an issuer free writing prospectus, as
defined in Rule 433.
“Preliminary
Prospectus” shall mean any preliminary prospectus supplement to the Base
Prospectus referred to in paragraph 1(a) above which is used prior to the filing
of the Final Prospectus, together with the Base Prospectus.
“Registration
Statement” shall mean the registration statement referred to in
paragraph 1(a) above, including exhibits and financial statements and any
prospectus supplement relating to the Securities that is filed with the
Commission pursuant to Rule 424(b) and deemed part of such registration
statement pursuant to Rule 430B, as amended on each Effective Date and, in the
event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Registration
Statement, as the case may be.
“Regulation D”
shall mean Regulation D under the Act.
“Regulation
S-X” shall mean Regulation S-X under the Act.
“Rule
158”, “Rule 163”, “Rule 164”, “Rule 172”, “Rule 405”, “Rule 415”,
“Rule 424”, “Rule 430B” , “Rule 433” and “Rule 462” refer to such
rules under the Act.
“Rule 462(b)
Registration Statement” shall mean a registration statement and any amendments
thereto filed pursuant to Rule 462(b) relating to the offering covered by
the registration statement referred to in Section 1(a) hereof.
ANNEX
A
[FORM OF
UNDERWRITING AGREEMENT]
Underwriting
Agreement
[__________],
20[__]
To the
Representative named in
Schedule I
hereto of the several
Underwriters
named in
Schedule II
hereto
Ladies
and Gentlemen:
Patriot
Coal Corporation, a corporation organized under the laws of Delaware (the
“Company”), proposes to sell (such sale, the “Offering”) to the several
underwriters named in Schedule II hereto (the “Underwriters”), for whom you
(the “Representative”) are acting as representative, the number of shares of
common stock, $0.01 par value (“Common Stock”), of the Company set forth in
Schedule I hereto (the “Underwritten Securities”). The Company also
proposes to grant to the Underwriters an option to purchase up to the number of
additional shares of Common Stock set forth in Schedule I hereto to cover over
allotments, if any (the “Option Securities”; the Option Securities, together
with the Underwritten Securities, being hereinafter called the
“Securities”).
To the
extent there are no additional Underwriters listed on Schedule I other than
you, the term Representative as used herein shall mean you, as Underwriter, and
the terms Representative and Underwriter shall mean either the singular or
plural as the context requires.
Subject
to the terms and conditions and in reliance upon the representations and
warranties set forth herein and in the Company’s Equity Underwriting Agreement
Standard Provisions filed as Exhibit 1.1 to the Company’s Form S-3 dated
April 17, 2009 (the “Standard Provisions”), the Company agrees to sell to
each Underwriter, and each Underwriter agrees, severally and not jointly, to
purchase from the Company, at the purchase price set forth in Schedule I to
the Underwriting Agreement the number of Underwritten Securities set forth
opposite such Underwriter’s name in Schedule II hereto.
Subject
to the terms and conditions and in reliance upon the representations and
warranties herein set forth and in the Standard Provisions, the Company hereby
grants an option to the several Underwriters to purchase, severally and not
jointly, up to the number of Option Securities set forth in Schedule I to the
Underwriting Agreement at the same purchase price per share as the Underwriters
shall pay for the Underwritten Securities. Said option may be
exercised only to cover over-allotments in the sale of the Underwritten
Securities by the Underwriters. Said option may be exercised in whole
or in part at any time on or before the 30th
day after
the date of the Final Prospectus upon written or telegraphic notice by the
Representatives to the Company setting forth the number of Option Securities as
to which the several Underwriters are exercising the option and the settlement
date. The number of Option Securities to be purchased by each
Underwriter shall be the same percentage of the total number of Option
Securities to be purchased by the several Underwriters as such Underwriter is
purchasing of the Underwritten Securities, subject to such adjustments as you in
your absolute discretion shall make to eliminate any fractional
shares.
Schedule
III hereto contains the Free Writing Prospectuses, if any, that shall be
included in the Disclosure Package and to which the parties hereto have provided
their consent for use pursuant to Section 5(g) of the Standard
Provisions.
Schedule
IV hereto contains a list of the Company’s Significant
Subsidiaries.
[LIST OF
PROVISIONS AND DETAILS SPECIFIC TO THE OFFERING INCLUDING DETAILS WITH RESPECT
TO LANGUAGE REQUIRED BY THE STANDARD PROVISIONS]
All
provisions contained in the Standard Provisions are incorporated by reference
herein in their entirety, except as explicitly amended by this Underwriting
Agreement (including if any term defined in such Standard Provisions is
otherwise defined herein), and shall be deemed to be a part of this Underwriting
Agreement to the same extent as if such provisions had been set forth in full
herein.
This Agreement may be signed in one or
more counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
If the
foregoing is in accordance with your understanding of our agreement, please sign
and return to us the enclosed duplicate hereof, whereupon this letter
and your acceptance shall represent a binding agreement among the Company and
the several Underwriters.
|
Very
truly yours,
|
||
|
Patriot
Coal Corporation
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
The
foregoing Underwriting Agreement is
hereby
confirmed and accepted
as of the
date specified in
Schedule I
hereto.
[Representative]
By:[Representative]
By:
|
|
Name:
|
|
|
Title:
|
For
themselves and the other
several
Underwriters, if any,
named in
Schedule II to the
foregoing
Underwriting Agreement.
SCHEDULE I
Underwriting
Agreement dated
Registration
Statement No.
Representative(s):
Title,
Purchase Price and Description of Securities:
Title:
Number of
Underwritten Securities to be sold by the Company:
Number of
Option Securities to be sold by the Company:
Price per
Share to Public (include accrued dividends, if any):
Price per
Share to the Underwriters – total:
Other
provisions:
Closing
Date, Time and
Location: ,
20 at 10:00 a.m. at [name and address of Underwriters’
counsel]
Type of
Offering:
Modification
of items to be covered by the letter from
Ernst
& Young LLP delivered pursuant to
Section
6(f) at the Execution Time:
SCHEDULE II
|
Underwriters
|
Number of Underwritten Securities
to
be
Purchased
|
|
$
|
|
|
Total
|
$
|
SCHEDULE III
Schedule
of Free Writing Prospectuses included in the Disclosure Package
[list all
FWPs included in the Disclosure Package]
SCHEDULE
IV
List of
Significant Subsidiaries
[list all
Significant Subsidiaries]
Exhibit
A
[Insert
Lock-up Agreement]
Exhibit
B
[Insert
each officer and director of the Company subject to the lock-up agreement in
Exhibit A]
ANNEX
B
[FORM OF
OPINION FOR OUTSIDE COUNSEL OF THE COMPANY]
[date]
[Name[s]
of managing underwriter[s]]
as
Representative of the several Underwriters named in
Schedule
II to the Underwriting Agreement referred to below
[c/o][[name
of lead manager]]
[address
of lead manager]
Ladies
and Gentlemen:
We have
acted as special counsel for Patriot Coal Corporation, a Delaware corporation
(the “Company”), in connection with the Underwriting Agreement dated _______,
20__ (the “Underwriting Agreement”) with you and the other several Underwriters
named in Schedule II thereto under which you and such other Underwriters have
severally agreed to purchase from the Company an aggregate of [number of shares]
shares (the “Shares”) of its Common Stock, par value $0.01 per
share. [The Shares include [number of shares to be purchased under
the over-allotment option] shares of Common Stock, par value $0.01 per share of
the Company to be purchased pursuant to the over-allotment option provided for
by the Underwriting Agreement].
We have
examined originals or copies, certified or otherwise identified to our
satisfaction, of such documents, corporate records, certificates of public
officials and other instruments as we have deemed necessary or advisable for the
purpose of rendering this opinion.
We have
also reviewed the Company’s registration statement on Form S-3 (File No.
333-157645) [and Amendments Nos. _____ thereto] (including the documents
incorporated by reference therein (the “Incorporated Documents”)) filed with the
Securities and Exchange Commission (the “Commission”) pursuant to the provisions
of the Securities Act of 1933, as amended (the “Act”), relating to the
registration of securities (the “Shelf Securities”) to be issued from time to
time by the Company and have participated in the preparation of the preliminary
prospectus supplement dated _______, 20__ (the “Preliminary Prospectus
Supplement”) relating to the Shares, [list free writing prospectuses, if any,
that form part of the Disclosure Package to be covered by the Opinion] and the
prospectus supplement dated _________, 20__ relating to the Shares (the
“Prospectus Supplement”). In addition, we have [examined evidence]
[been advised by the staff of the Commission] that the registration statement as
so amended was declared effective under the Act on [insert date of
effectiveness]. The registration statement as amended at the date of
the Underwriting Agreement, including the Incorporated Documents and the
information deemed to be part of the registration statement at the time of
effectiveness pursuant to Rule 430B under the Act, is hereinafter referred to as
the “Registration Statement”, and the related prospectus (including the
Incorporated Documents) dated ____________, 20__ relating to the Shelf
Securities is hereinafter referred to as the “Basic Prospectus.” The
Basic Prospectus, as supplemented by the Prospectus Supplement, in the form
first used to confirm sales of the Shares (or in the form first made available
by the Company to the Underwriters to meet requests
of
purchasers of the Shares under Rule 173 under the Act), is hereinafter referred
to as the “Prospectus”.
We have
assumed the conformity of the documents filed with the Commission via the
Electronic Data Gathering, Analysis and Retrieval System (“▇▇▇▇▇”), except for
required ▇▇▇▇▇ formatting changes, to physical copies of the documents submitted
for our examination.
Capitalized
terms used but not otherwise defined herein are used as defined in the
Underwriting Agreement.
Based
upon the foregoing, we are of the opinion that:
1. The
Shares to be sold by the Company have been duly authorized and, when issued and
delivered to and paid for by the Underwriters pursuant to the Underwriting
Agreement, will be validly issued, fully paid and non-assessable, and the
issuance of such Shares is not subject to any statutory preemptive
rights.
2. The
Underwriting Agreement has been duly authorized, executed and delivered by the
Company.
3. The
Company is not, and after giving effect to the offering and sale of the Shares
and the application of the proceeds thereof as described in the Prospectus will
not be, required to register as an “investment company” as such term is defined
in the Investment Company Act of 1940, as amended.
4. [Except
as disclosed in the Prospectus, t][T]he execution and delivery by the Company
of, and the performance by the Company of its obligations under, the
Underwriting Agreement will not contravene (i) any provision of the laws of the
State of New York or any federal law of the United States of America that in our
experience is normally applicable to general business corporations in relation
to transactions of the type contemplated by the Underwriting Agreement, or the
General Corporation Law of the State of Delaware provided that we express no
opinion as to federal or state securities laws, (ii) the certificate of
incorporation or by-laws of the Company, or (iii) any agreement that is an
exhibit to the Registration Statement.
5. No
consent, approval, authorization, or order of, or qualification with, any
governmental body or agency under the laws of the State of New York or any
federal law of the United States of America that in our experience is normally
applicable to general business corporations in relation to transactions of the
type contemplated by the Underwriting Agreement, or the General Corporation Law
of the State of Delaware is required for the execution, delivery and performance
by the Company of its obligations under the Underwriting Agreement, except such
as may be required under federal or state securities or Blue Sky laws as to
which we express no opinion.
We have
considered the statements included in the Prospectus under the caption
“Description of Capital Stock” insofar as they summarize provisions of the
certificate of incorporation and by-laws of the Company. In our
opinion, such statements fairly summarize these provisions in all material
respects.
We are
members of the Bar of the State of New York, and the foregoing opinion is
limited to the laws of the State of New York, the federal laws of the United
States of America and the General Corporation Law of the State of Delaware,
except that we express no opinion as to any law, rule or regulation that is
applicable to the Company, the Underwriting Agreement, the Shares or such
transactions solely because such law, rule or regulation is part of a regulatory
regime applicable to any party to any of the Underwriting Agreement or any of
its affiliates due to the specific assets or business of such party or such
affiliate.
This
opinion is rendered solely to you and the other several Underwriters in
connection with the Underwriting Agreement. This opinion may not be
relied upon by you for any other purpose or relied upon by any other person
(including any person acquiring Shares from the several Underwriters) or
furnished to any other person without our prior written consent.
|
Very
truly yours,
|
|
[FORM OF
10B-5 STATEMENT OF OUTSIDE COUNSEL FOR THE COMPANY]
Form
of 10b-5 Statement of Outside Counsel for the Company
[date]
[Name[s]
of managing underwriter[s]]
as
Representative of the several Underwriters named in
Schedule
II to the Underwriting Agreement referred to below
[c/o][[name
of lead manager]]
[address
of lead manager]
Ladies
and Gentlemen:
We have
acted as special counsel for Patriot Coal Corporation, a Delaware corporation
(the “Company”), in connection with the Underwriting Agreement dated _______,
20__ (the “Underwriting Agreement”) with you and the other several Underwriters
named in Schedule II thereto under which you and such other Underwriters have
severally agreed to purchase from the Company an aggregate of [number of shares]
shares (the “Shares”) of its Common Stock, par value $0.01 per
share. [The Shares include [number of shares to be purchased under
the over-allotment option] shares of Common Stock, par value $0.01 per share of
the Company to be purchased pursuant to the over-allotment option provided for
by the Underwriting Agreement].
We also
have reviewed the Company’s registration statement on Form S-3 (File No.
333-157645) [and Amendments Nos. _____ thereto] (including the documents
incorporated by reference therein (the “Incorporated Documents”)) filed with the
Securities and Exchange Commission (the “Commission”) pursuant to the provisions
of the Securities Act of 1933, as amended (the “Act”), relating to the
registration of securities (the “Shelf Securities”) to be issued from time to
time by the Company and have participated in the preparation of the preliminary
prospectus supplement dated _______, 20__ (the “Preliminary Prospectus
Supplement”) relating to the Shares, [list free writing prospectuses, if any,
that form part of the Disclosure Package to be covered by the opinion] and the
prospectus supplement dated _________, 20__ relating to the Shares (the
“Prospectus Supplement”). The registration statement as amended at
the date of the Underwriting Agreement, including the Incorporated Documents and
the information deemed to be part of the registration statement at the time of
effectiveness pursuant to Rule 430B under the Act, is hereinafter referred to as
the “Registration Statement”, and the related prospectus (including the
Incorporated Documents) dated ____________, 20__ relating to the Shelf
Securities is hereinafter referred to as the “Basic Prospectus.” The
Basic Prospectus, as supplemented by the Preliminary Prospectus Supplement,
together with the [free writing prospectus[es] set forth in Schedule III to the
Underwriting Agreement for the Shares] [information] are hereinafter called the
“Disclosure Package”. The Basic Prospectus, as supplemented by the
Prospectus Supplement, in the form first used to confirm sales of the Shares (or
in the form first made available by the Company to the Underwriters to meet
requests of purchasers of the Shares under Rule 173 under the Act), is
hereinafter referred to as the “Prospectus”.
We have
assumed the conformity of the documents filed with the Commission via the
Electronic Data Gathering, Analysis and Retrieval System (“▇▇▇▇▇”), except for
required ▇▇▇▇▇ formatting changes, to physical copies of the documents submitted
for our examination.
The primary purpose of our professional
engagement was not to establish or confirm factual matters or financial,
accounting or quantitative information (including information with
respect to proven and probable coal reserves). Furthermore,
many determinations
involved in the preparation of the Registration Statement, the Disclosure
Package and the Prospectus are of a wholly or partially non-legal character or
relate to legal matters outside the scope of our opinion separately delivered to
you today in respect of
certain matters under the laws of the State of New York, the federal laws
of the United States of America and the General Corporation Law of the State of
Delaware. As a result,
we are not passing upon,
and do not assume any responsibility for, the accuracy, completeness or fairness
of the statements contained in the Registration Statement, the
Disclosure Package and the Prospectus, and we have not ourselves checked the
accuracy, completeness or fairness of, or otherwise verified, the information
furnished in such documents
(except to the extent
expressly set forth in our opinion letter separately delivered to you
today as to statements
included in the Prospectus under the caption “Description of Capital
Stock”). However, in
the course of our acting as counsel to the Company in connection with the preparation of
the Registration Statement,
the Disclosure Package and the Prospectus, we have generally reviewed and discussed
with your representatives and your counsel and with certain officers and employees
of, and independent public accountants for, the Company the information
furnished, whether or not subject to our check and
verification. We
have also reviewed and relied upon certain corporate records and documents,
letters from counsel and accountants and oral and written statements of officers
and other representatives of the Company and others as to the existence and
consequence of certain factual and other matters.
Capitalized
terms used but not otherwise defined herein are used as defined in the
Underwriting Agreement.
On the basis of the information gained
in the course of the performance of the services rendered above, but without
independent check or verification except as stated above:
(i) the Registration Statement and the
Prospectus appear on their face to be appropriately responsive in all material
respects to the requirements of the Act and the applicable rules and regulations
of the Commission thereunder; and
(ii) nothing has come to our attention
that causes us to believe that, insofar as relevant to the offering of
the Shares:
(a) the Registration Statement or the
prospectus included therein at the time the Registration Statement became
effective and on the date of the Underwriting Agreement, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading,
(b) at the Execution Time, the Disclosure Package contained any
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, or
(c) the Prospectus as of the date of the Underwriting
Agreement or as of the date
hereof contained or contains any 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.
In providing this letter to you and the
other several Underwriters,
we have not been called to pass upon, and we express no view regarding, the financial statements or financial
schedules or other financial or accounting data or statements regarding proven and
probable coal reserves included in the Registration Statement,
the Disclosure Package
or the
Prospectus. In addition, we express no view as to the conveyance of the Disclosure
Package or the information contained therein to investors.
This
letter is delivered solely to you and the other several Underwriters in
connection with the Underwriting Agreement. This letter may not be
relied upon by you for any other purpose or relied upon by any other person
(including any person acquiring Shares from the several Underwriters) or
furnished to any other person without our prior written consent.
|
Very
truly yours,
|
|
ANNEX
C
[FORM OF
OPINION OF COMPANY COUNSEL]
[date]
[Name[s]
of managing underwriter[s]]
as
Representative of the several Underwriters named in
Schedule
II to the Underwriting Agreement referred to below
[c/o][[name
of lead manager]]
[address
of lead manager]
Ladies
and Gentlemen:
I, ▇▇▇▇▇▇
▇. ▇▇▇▇, am Senior Vice President and General Counsel of Patriot Coal
Corporation, a Delaware corporation (the “Company”). This opinion is delivered
in connection with the Underwriting Agreement dated _______, 20__ (the
“Underwriting Agreement”) with you and the other several Underwriters named in
Schedule II thereto under which you and such other Underwriters have severally
agreed to purchase from the Company an aggregate of [number of shares] shares
(the “Shares”) of its Common Stock, par value $0.01 per share. [The
Shares include [number of shares to be purchased under the over-allotment
option] shares of Common Stock, par value $0.01 per share of the Company to be
purchased pursuant to the over-allotment option provided for by the Underwriting
Agreement].
I have
examined originals or copies, certified or otherwise identified to my
satisfaction, of such documents, corporate records, certificates of public
officials and other instruments as I have deemed necessary or advisable for the
purpose of rendering this opinion.
Capitalized
terms used but not otherwise defined herein are used as defined in the
Underwriting Agreement.
Based
upon the foregoing, I am of the opinion that:
1. Each of
the Company and the Significant Subsidiaries listed on Schedule IV to the
Underwriting Agreement (individually, a “Significant Subsidiary” and
collectively, the “Significant Subsidiaries”) has been duly incorporated or
organized and is validly existing as a corporation, limited liability company or
other entity in good standing under the laws of the jurisdiction in which it is
formed, with full corporate power and authority to own or lease, as the case may
be, and to operate its properties and conduct its business as described in the
Disclosure Package and the Final Prospectus, and is duly qualified to do
business as a foreign corporation and is in good standing under the laws of each
jurisdiction which requires such qualification, except for such jurisdictions
where the failure to so qualify or to be in good standing would not result in a
Material Adverse Effect.
2. All the
outstanding shares of capital stock or other equity or ownership interests of
each Significant Subsidiary have been duly authorized and validly issued and are
fully paid and nonassessable, and, except as otherwise set forth in the
Disclosure Package and the Final
Prospectus,
all outstanding shares of capital stock or other equity or ownership interests
of the Significant Subsidiaries are owned by the Company either directly or
through a subsidiary controlled by the Company, free and clear of any perfected
security interest and, to my knowledge, any other security interest, claim, lien
or encumbrance that is material to the Company and its subsidiaries taken as a
whole.
3. The
Company’s authorized equity capitalization is as set forth in the Disclosure
Package and the Final Prospectus and the capital stock of the Company conforms
to the description thereof contained in the Disclosure Package and the Final
Prospectus in all material respects; the Shares conform to the description
thereof contained in the Disclosure Package and the Final Prospectus in all
material respects; the outstanding shares of Common Stock have been duly
authorized and validly issued and are fully paid and nonassessable; the holders
of outstanding shares of capital stock of the Company are not entitled to any
preemptive or other rights to subscribe for the Shares; and, except as set forth
in the Disclosure Package and the Final Prospectus, no options, warrants or
other rights to purchase, agreements or other obligations to issue, or rights to
convert any obligations into or exchange any securities for, shares of capital
stock of or ownership interests in the Company are outstanding, other than
issuances pursuant to employee benefit plans or upon the exercise of outstanding
options.
4. There is
no pending or, to my knowledge, threatened action, suit or proceeding by or
before any court or governmental agency, authority or body or any arbitrator
involving the Company or any of the Significant Subsidiaries or its or their
property that (a) is within the scope of Item l03 of Regulation S-K under the
Securities Act and (b) is not described in the Disclosure Package and the Final
Prospectus; and the statements in the Preliminary Prospectus and the Final
Prospectus under the headings listed in the Underwriting Agreement fairly
summarize the matters therein described in all material respects.
5. Neither
the execution and delivery of the Underwriting Agreement, the issuance and sale
of the Shares, nor the consummation of any other of the transactions therein
contemplated, nor the fulfillment of the terms thereof, will conflict with,
result in a breach or violation of, or imposition of any lien, charge or
encumbrance upon any property or asset of the Company or of any of its
Significant Subsidiaries pursuant to any statute, law, rule, regulation,
judgment, order or decree applicable to the Company or any of the Significant
Subsidiaries of any court, regulatory body, administrative agency, governmental
body, arbitrator or other authority having jurisdiction over the Company, any of
the Significant Subsidiaries or any of their respective properties (including
any mining or environmental law, rule or regulation) or the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or instrument to
which the Company or its Significant Subsidiaries is a party or bound or to
which its or their property is subject.
The
foregoing opinion is limited to the federal laws of the United States of America
and the General Corporation Law of the State of Delaware.
This
opinion is rendered solely to you in connection with the Underwriting Agreement.
This opinion may not be relied upon by you for any other purpose or relied upon
by any other person (including any person acquiring Shares from the several
Underwriters) or furnished to any other person without my prior written
consent.