Common use of Mandatory Offer Clause in Contracts

Mandatory Offer. Each FH Shareholder, individually or in concert with any other Person (including the Company), shall not, and shall cause its Affiliates (including the Company) and any Group of which any FH Shareholder is a member not to, directly or indirectly, acquire, offer to acquire or agree to acquire (including from the Company) Beneficial Ownership of any share of Common Stock (including as a result of any share repurchase by the Company) if, following the consummation of such transaction, the FH Shareholders together with such other Person would Beneficially Own, in the aggregate, more than 66.7% of the Common Stock, except (x) in accordance with the following provisions of this Section 2.02 or (y) for acquisitions of any shares of Common Stock pursuant to a share repurchase program so long as such share repurchase program was entered into by the Company with the prior approval of the Conflicts Committee. If any Person (an “Acquiring Stockholder”) proposes to acquire Beneficial Ownership of any share of Common Stock in a manner that would otherwise violate the immediately preceding sentence (the “Proposed Acquisition”), the consummation of such Proposed Acquisition will not violate the immediately preceding sentence if, and only if, (a) the Acquiring Stockholder offers to acquire all of the then-outstanding Common Stock at the same price, in the same form and on the same terms and conditions as the Proposed Acquisition (the “Proposed Purchase Offer”) and (b) such Proposed Acquisition is adopted and recommended by the Conflicts Committee and the Board of Directors; provided, that, notwithstanding the foregoing clause (b), if the Proposed Acquisition is presented to and rejected by the Conflicts Committee, the Proposed Acquisition may, at the discretion of the Board of Directors, be submitted for acceptance or approval by holders of a majority of the Common Stock held by Public Shareholders in lieu of adoption and recommendation by the Conflicts Committee so long as, simultaneously with the Board of Directors’ submission, the Company publicly discloses, in form and substance acceptable to the Conflicts Committee, the decision of the Conflicts Committee to reject such Proposed Acquisition and the Conflicts Committee’s reasons therefor; provided, further, that, if there is a choice as to the form of consideration, then each Public Shareholder shall have the same choice as the FH Shareholders and any other member of any Group of which any FH Shareholder is a member; provided, further, that, in the event that any securities are part of the consideration payable, any Public Shareholder that is not an “accredited investor” within the meaning of Rule 501 under the Securities Act, may, in the sole discretion of the Board of Directors, receive, in lieu of securities, cash consideration with the equivalent value of such securities that is approved by the Conflicts Committee. For the avoidance of doubt, the provisions of this Section 2.02 shall apply irrespective of whether the Proposed Purchase Offer is effected pursuant to a merger, consolidation, tender offer followed by a merger, or any other business combination or transaction that could permit the acquisition of all of the then-outstanding Common Stock. For purposes of this Section 2.02, any shares of Common Stock Beneficially Owned by FH, any of its Affiliates or any member of any Group of which FH or any of its Affiliates is a member shall not be aggregated with any shares of Common Stock Beneficially Owned by any transferee that has become a party to this Agreement pursuant to Section 2.01(b) so long as such transferee is not a member of any Group of which FH or any of its Affiliates is also a member.

Mandatory Offer. Each FH Shareholder(a) If a single Financier (the "Purchaser") together with its Affiliates, individually or Related Funds and persons acting in concert with such Purchaser acquires, or makes an offer to any other Person Financier(s) to acquire, more than fifty percent (50%) of the Total Commitments (including for the Companyavoidance of doubt pursuant to a sub- participation agreement or similar arrangement) (the "Control Trigger"), the Purchaser must (subject to clause 11(g)) make an offer to all other Financiers under the HoldCo Facilities to acquire the remaining Total Commitments in full within thirty (30) Business Days of the date of the Control Trigger or as soon as reasonably practicable thereafter if there is a requirement to appoint an Independent Expert in accordance with clause 11(c) (a "Mandatory Offer"). (b) The consideration payable under the Mandatory Offer shall not, be: (i) an amount equal to the highest consideration offered by the Purchaser to any Financier during the twelve (12) month period ending on the date of the Control Trigger (the "Best Prior Offer"); and (ii) in the same form and shall cause its Affiliates subject to the same payment terms as the Best Prior Offer. (c) If it is not possible to establish the Best Prior Offer for any reason (including because the Company) and any Group of which any FH Shareholder is a member not to, directly or indirectly, acquire, Purchaser made no previous offer to acquire Commitments and the Control Trigger occurred only because it began acting in concert with one or agree to acquire (including from the Company) Beneficial Ownership of any share of Common Stock (including as a result of any share repurchase by the Company) if, following the consummation of such transactionmore Financiers), the FH Shareholders together with such other Person would Beneficially Ownconsideration payable under the Mandatory Offer shall be an amount in cash determined by an independent investment bank or accounting firm, in either case, of international repute, appointed in accordance with this clause 11(c) the aggregate, more than 66.7% "Independent Expert" to be the Fair Value of the Common Stock, except (x) relevant Commitments in accordance with the following provisions procedure: (i) the Purchaser shall, as soon as reasonably practicable after the Control Trigger, propose an independent investment bank or accounting firm, in either case, of this Section 2.02 international repute, to be the Independent Expert and provided that such bank or accounting firm: (yA) for acquisitions confirms in writing to HoldCo its willingness to be the Independent Expert and that it has no conflict of any shares of Common Stock pursuant interest; and (B) is acceptable to a share repurchase program so long as such share repurchase program was entered into simple majority by value of the Financiers (excluding for these purposes the Commitments held by the Company with Purchaser); it shall be appointed as the prior approval Independent Expert; (ii) the Purchaser shall request that the Independent Expert determines the Fair Value of the Conflicts Committee. If any Person relevant Commitments as soon as reasonably practicable on the following basis: 10211744743-v2 - 41 - 70-40746146 (an “Acquiring Stockholder”A) proposes that the determination be addressed to acquire Beneficial Ownership of any share of Common Stock in a manner that would otherwise violate the immediately preceding sentence (Purchaser, XxxxXx and the “Proposed Acquisition”), the consummation of such Proposed Acquisition will not violate the immediately preceding sentence ifGlobal Agent, and only if, may be disclosed to the Financiers on a hold harmless basis; (aB) that the Acquiring Stockholder offers to acquire all relevant Commitments are being sold on the basis of arm's ' length sale between a willing buyer and a willing seller; (C) on the basis of the then-outstanding Common Stock at historical, current and forecast financial performance of the same price, in HoldCo Group; (D) not attributing any discount or premium for control of the same form and HoldCo Group; (E) on the same terms and conditions assumption that the HoldCo Group will continue to carry on business as the Proposed Acquisition (the “Proposed Purchase Offer”) and (b) such Proposed Acquisition is adopted and recommended by the Conflicts Committee and the Board of Directors; provided, that, notwithstanding the foregoing clause (b), if the Proposed Acquisition is presented to and rejected by the Conflicts Committee, the Proposed Acquisition may, at the discretion of the Board of Directors, be submitted for acceptance or approval by holders of a majority of the Common Stock held by Public Shareholders in lieu of adoption and recommendation by the Conflicts Committee so long as, simultaneously with the Board of Directors’ submission, the Company publicly discloses, in form and substance acceptable to the Conflicts Committee, the decision of the Conflicts Committee to reject such Proposed Acquisition and the Conflicts Committee’s reasons therefor; provided, further, that, if there is a choice as to the form of consideration, then each Public Shareholder shall have the same choice as the FH Shareholders and any other member of any Group of which any FH Shareholder is a member; provided, further, that, in the event that any securities are part of the consideration payable, any Public Shareholder that is not an “accredited investor” within the meaning of Rule 501 under the Securities Act, may, in the sole discretion of the Board of Directors, receive, in lieu of securities, cash consideration with the equivalent value of such securities that is approved by the Conflicts Committee. For the avoidance of doubt, the provisions of this Section 2.02 shall apply irrespective of whether the Proposed Purchase Offer is effected pursuant to a merger, consolidation, tender offer followed by a merger, or any other business combination or transaction that could permit the acquisition of all of the then-outstanding Common Stock. For purposes of this Section 2.02, any shares of Common Stock Beneficially Owned by FH, any of its Affiliates or any member of any Group of which FH or any of its Affiliates is a member shall not be aggregated with any shares of Common Stock Beneficially Owned by any transferee that has become a party to this Agreement pursuant to Section 2.01(b) so long as such transferee is not a member of any Group of which FH or any of its Affiliates is also a member.going concern;

Mandatory Offer. Each FH Shareholder‌ (a) If a single Financier (the "Purchase r") together with its Affiliates, individually or Related Funds and persons acting in concert with such Purchaser acquires, or makes an offer to any other Person Financier(s) to acquire, more than fifty percent (50%) of the Total Commitments (including for the Companyavoidance of doubt pursuant to a sub- participation agreement or similar arrangement) (the "Control Trigger"), the Purchaser must (subject to clause 11(g)) make an offer to all other Financiers under the HoldCo Facilities to acquire the remaining Total Commitments in full within thirty (30) Business Days of the date of the Control Trigger or as soon as reasonably practicable thereafter if there is a requirement to appoint an Independent Expert in accordance with clause 11(c) (a "Mandatory Offer").‌ (b) The consideration payable under the Mandatory Offer shall not, be: (i) an amount equal to the highest consideration offered by the Purchaser to any Financier during the 12 month period ending on the date of the Control Trigger (the "Best Prior Offe r"); and‌ (ii) in the same form and shall cause its Affiliates subject to the same payment terms as the Best Prior Offer. (c) If it is not possible to establish the Best Prior Offer for any reason (including because the Company) and any Group of which any FH Shareholder is a member not to, directly or indirectly, acquire, Purchaser made no previous offer to acquire Commitments and the Control Trigger occurred only because it began acting in concert with one or agree to acquire (including from the Company) Beneficial Ownership of any share of Common Stock (including as a result of any share repurchase by the Company) if, following the consummation of such transactionmore Financiers), the FH Shareholders together with such other Person would Beneficially Ownconsideration payable under the Mandatory Offer shall be an amount in cash determined by an independent investment bank or accounting firm, in either case, of international repute, appointed in accordance with this clause 11(c) the aggregate, more than 66.7% "Inde pe nde nt Expe rt" to be the Fair Value of the Common Stock, except (x) relevant Commitments in accordance with the following provisions procedure: (i) the Purchaser shall, as soon as reasonably practicable after the Control Trigger, propose an independent investment bank or accounting firm, in either case, of this Section 2.02 international repute, to be the Independent Expert and provided that such bank or accounting firm: (yA) for acquisitions confirms in writing to HoldCo its willingness to be the Independent Expert and that it has no conflict of any shares of Common Stock pursuant interest; and (B) is acceptable to a share repurchase program so long as such share repurchase program was entered into majority by value of the Financiers (excluding for these purposes the Commitments held by the Company with Purchaser); (ii) the prior approval Purchaser shall request that the Independent Expert determines the Fair Value of the Conflicts Committee. If any Person relevant Commitments as soon as reasonably practicable on the following basis: (an “Acquiring Stockholder”A) proposes that the determination be addressed to acquire Beneficial Ownership of any share of Common Stock in a manner that would otherwise violate the immediately preceding sentence (Purchaser, HoldCo and the “Proposed Acquisition”), the consummation of such Proposed Acquisition will not violate the immediately preceding sentence ifGlobal Agent, and only ifmay be disclosed to the Financiers on a hold harmless basis; (B) that the relevant Commitments are being sold on the basis of arms' length sale between a willing buyer and a willing seller; (C) on the basis of the historical, current and forecast financia l performance of the HoldCo Group; (aD) not attributing any discount or premium for control of the HoldCo Group; (E) on the assumption that the HoldCo Group will continue to carry on business as a going concern; (F) the Acquiring Stockholder offers to acquire sale occurs on the date that the Control Trigger occurred; (G) the relevant Commitments are sold free of all encumbrances; (H) any other factors that the Independent Expert reasonably believes should be taken into account; and (I) the application in all other respects of the then-outstanding Common Stock at the same price, in the same form and on the same terms and conditions as the Proposed Acquisition (the “Proposed Purchase Offer”) and (b) such Proposed Acquisition is adopted and recommended by the Conflicts Committee and the Board of Directors; provided, that, notwithstanding the foregoing clause (b), if the Proposed Acquisition is presented to and rejected by the Conflicts Committee, the Proposed Acquisition may, at the discretion of the Board of Directors, be submitted for acceptance or approval by holders of a majority of the Common Stock held by Public Shareholders in lieu of adoption and recommendation by the Conflicts Committee so long as, simultaneously with the Board of Directors’ submission, the Company publicly discloses, in form and substance acceptable to the Conflicts Committee, the decision of the Conflicts Committee to reject such Proposed Acquisition and the Conflicts Committee’s reasons therefor; provided, further, that, if there is a choice as to the form of consideration, then each Public Shareholder shall have the same choice as the FH Shareholders and any other member of any Group of which any FH Shareholder is a member; provided, further, that, in the event that any securities are part of the consideration payable, any Public Shareholder that is not an “accredited investor” within the meaning of Rule 501 under the Securities Act, may, in the sole discretion of the Board of Directors, receive, in lieu of securities, cash consideration with the equivalent value of such securities that is approved by the Conflicts Committee. For the avoidance of doubt, the provisions of this Section 2.02 shall apply irrespective of whether the Proposed Purchase Offer is effected pursuant to a merger, consolidation, tender offer followed by a merger, or any other business combination or transaction that could permit the acquisition of all of the then-outstanding Common Stock. For purposes of this Section 2.02, any shares of Common Stock Beneficially Owned by FH, any of its Affiliates or any member of any Group of which FH or any of its Affiliates is a member shall not be aggregated with any shares of Common Stock Beneficially Owned by any transferee that has become a party to this Agreement pursuant to Section 2.01(b) so long as such transferee is not a member of any Group of which FH or any of its Affiliates is also a member.Accounting Principle s.

Mandatory Offer. Each FH Shareholder(a) If a single Financier (the "Purchaser") together with its Affiliates, individually or Related Funds and persons acting in concert with such Purchaser acquires, or makes an offer to any other Person Financier(s) to acquire, more than fifty percent (50%) of the Total Commitments (including for the Companyavoidance of doubt pursuant to a sub- participation agreement or similar arrangement) (the "Control Trigger"), the Purchaser must (subject to clause 11(g)) make an offer to all other Financiers under the HoldCo Facilities to acquire the remaining Total Commitments in full within thirty (30) Business Days of the date of the Control Trigger or as soon as reasonably practicable thereafter if there is a requirement to appoint an Independent Expert in accordance with clause 11(c) (a "Mandatory Offer"). (b) The consideration payable under the Mandatory Offer shall not, be: (i) an amount equal to the highest consideration offered by the Purchaser to any Financier during the twelve (12) month period ending on the date of the Control Trigger (the "Best Prior Offer"); and (ii) in the same form and shall cause its Affiliates subject to the same payment terms as the Best Prior Offer. (c) If it is not possible to establish the Best Prior Offer for any reason (including because the Company) and any Group of which any FH Shareholder is a member not to, directly or indirectly, acquire, Purchaser made no previous offer to acquire Commitments and the Control Trigger occurred only because it began acting in concert with one or agree to acquire (including from the Company) Beneficial Ownership of any share of Common Stock (including as a result of any share repurchase by the Company) if, following the consummation of such transactionmore Financiers), the FH Shareholders together with such other Person would Beneficially Ownconsideration payable under the Mandatory Offer shall be an amount in cash determined by an independent investment bank or accounting firm, in either case, of international repute, appointed in accordance with this clause 11(c) the aggregate, more than 66.7% "Independent Expert" to be the Fair Value of the Common Stock, except (x) relevant Commitments in accordance with the following provisions procedure: (i) the Purchaser shall, as soon as reasonably practicable after the Control Trigger, propose an independent investment bank or accounting firm, in either case, of this Section 2.02 international repute, to be the Independent Expert and provided that such bank or accounting firm: (yA) for acquisitions confirms in writing to HoldCo its willingness to be the Independent Expert and that it has no conflict of any shares of Common Stock pursuant interest; and (B) is acceptable to a share repurchase program so long as such share repurchase program was entered into simple majority by value of the Financiers (excluding for these purposes the Commitments held by the Company with Purchaser); it shall be appointed as the prior approval Independent Expert; (ii) the Purchaser shall request that the Independent Expert determines the Fair Value of the Conflicts Committee. If any Person relevant Commitments as soon as reasonably practicable on the following basis: 10211744743-v2 - 41 - 70-40746146 (an “Acquiring Stockholder”A) proposes that the determination be addressed to acquire Beneficial Ownership of any share of Common Stock in a manner that would otherwise violate the immediately preceding sentence (Purchaser, HoldCo and the “Proposed Acquisition”), the consummation of such Proposed Acquisition will not violate the immediately preceding sentence ifGlobal Agent, and only if, may be disclosed to the Financiers on a hold harmless basis; (aB) that the Acquiring Stockholder offers to acquire all relevant Commitments are being sold on the basis of arm's ' length sale between a willing buyer and a willing seller; (C) on the basis of the then-outstanding Common Stock at historical, current and forecast financial performance of the same price, in HoldCo Group; (D) not attributing any discount or premium for control of the same form and HoldCo Group; (E) on the same terms and conditions assumption that the HoldCo Group will continue to carry on business as the Proposed Acquisition (the “Proposed Purchase Offer”) and (b) such Proposed Acquisition is adopted and recommended by the Conflicts Committee and the Board of Directors; provided, that, notwithstanding the foregoing clause (b), if the Proposed Acquisition is presented to and rejected by the Conflicts Committee, the Proposed Acquisition may, at the discretion of the Board of Directors, be submitted for acceptance or approval by holders of a majority of the Common Stock held by Public Shareholders in lieu of adoption and recommendation by the Conflicts Committee so long as, simultaneously with the Board of Directors’ submission, the Company publicly discloses, in form and substance acceptable to the Conflicts Committee, the decision of the Conflicts Committee to reject such Proposed Acquisition and the Conflicts Committee’s reasons therefor; provided, further, that, if there is a choice as to the form of consideration, then each Public Shareholder shall have the same choice as the FH Shareholders and any other member of any Group of which any FH Shareholder is a member; provided, further, that, in the event that any securities are part of the consideration payable, any Public Shareholder that is not an “accredited investor” within the meaning of Rule 501 under the Securities Act, may, in the sole discretion of the Board of Directors, receive, in lieu of securities, cash consideration with the equivalent value of such securities that is approved by the Conflicts Committee. For the avoidance of doubt, the provisions of this Section 2.02 shall apply irrespective of whether the Proposed Purchase Offer is effected pursuant to a merger, consolidation, tender offer followed by a merger, or any other business combination or transaction that could permit the acquisition of all of the then-outstanding Common Stock. For purposes of this Section 2.02, any shares of Common Stock Beneficially Owned by FH, any of its Affiliates or any member of any Group of which FH or any of its Affiliates is a member shall not be aggregated with any shares of Common Stock Beneficially Owned by any transferee that has become a party to this Agreement pursuant to Section 2.01(b) so long as such transferee is not a member of any Group of which FH or any of its Affiliates is also a member.going concern;

Mandatory Offer. Each FH ShareholderNot later than 30 days following the occurrence of a Wilpinjong Triggering Event, individually or Peabody agrees to make an offer, which offer shall remain open for 30 days following the date of notice by the Administrative Agent of such offer to the Term Lenders, to Term Lenders to exchange each Term Lender’s Loans for Peabody Exchange Term Loans in concert with any other Person an aggregate principal amount of the Term Loans (including plus accrued and unpaid interest thereon, if any, to, but excluding the Companydate of prepayment) up to the Maximum Exchange Amount (the “Wilpinjong Mandatory Offer”); provided that, prior to the Maturity Date of the Term Loans, Peabody shall not be obligated to make more than one Wilpinjong Mandatory Offer pursuant to each of clauses (i), shall not, and shall cause its Affiliates (including the Companyii)(a)(x) and any Group of which any FH Shareholder is a member not to, directly or indirectly, acquire, offer to acquire or agree to acquire (including from the Companyii)(a)(y) Beneficial Ownership of any share of Common Stock (including as a result of any share repurchase by the Company) if, following the consummation of such transaction, the FH Shareholders together with such other Person would Beneficially Own, in the aggregate, more than 66.7% of the Common Stockdefinition of Wilpinjong Triggering Event, except respectively; provided that if the principal amount of (x) the Term Loans (plus accrued and unpaid interest, if any, to, but excluding, the date of retirement) to be prepaid in accordance a Wilpinjong Mandatory Offer with the following provisions of this Section 2.02 or Peabody Exchange Term Loans and (y) for acquisitions the Priority Lien Notes to be exchanged in a Wilpinjong Mandatory Offer (as defined in the Priority Lien Notes Indenture) into Peabody 2024 Notes exceeds the Maximum Exchange Amount, Peabody will (I) select certain Priority Lien Notes to be repurchased and (II) prepay Term Loans of any shares of Common Stock pursuant to participating Lenders, on a share repurchase program so long as such share repurchase program was entered into by pro rata basis based on the Company with the prior approval outstanding aggregate principal amount of the Conflicts Committee. If any Person (an “Acquiring Stockholder”) proposes to acquire Beneficial Ownership of any share of Common Stock in a manner that would otherwise violate Term Loans and the immediately preceding sentence (the “Proposed Acquisition”), the consummation of such Proposed Acquisition will not violate the immediately preceding sentence if, and only if, (a) the Acquiring Stockholder offers to acquire all Priority Lien Notes of the then-outstanding Common Stock at Lenders and holders that have elected to participate in such Wilpinjong Mandatory Offer such that the same price, collective amount described in the same form and on the same terms and conditions as the Proposed Acquisition clauses (the “Proposed Purchase Offer”x) and (by) such Proposed Acquisition is adopted and recommended by the Conflicts Committee and the Board of Directors; provided, that, notwithstanding the foregoing clause (b), if the Proposed Acquisition is presented to and rejected by the Conflicts Committee, the Proposed Acquisition may, at the discretion of the Board of Directors, be submitted for acceptance or approval by holders of a majority of the Common Stock held by Public Shareholders in lieu of adoption and recommendation by the Conflicts Committee so long as, simultaneously with the Board of Directors’ submission, the Company publicly discloses, in form and substance acceptable to the Conflicts Committee, the decision of the Conflicts Committee to reject such Proposed Acquisition and the Conflicts Committee’s reasons therefor; provided, further, that, if there is a choice as to the form of consideration, then each Public Shareholder shall have the same choice as the FH Shareholders and any other member of any Group of which any FH Shareholder is a member; provided, further, that, in the event that any securities are part of the consideration payable, any Public Shareholder that is not an “accredited investor” within the meaning of Rule 501 under the Securities Act, may, in the sole discretion of the Board of Directors, receive, in lieu of securities, cash consideration with the equivalent value of such securities that is approved by the Conflicts Committee. For the avoidance of doubt, the provisions of this Section 2.02 shall apply irrespective of whether proviso no longer exceeds the Proposed Purchase Offer is effected pursuant to a merger, consolidation, tender offer followed by a merger, or any other business combination or transaction that could permit the acquisition of all of the then-outstanding Common Stock. For purposes of this Section 2.02, any shares of Common Stock Beneficially Owned by FH, any of its Affiliates or any member of any Group of which FH or any of its Affiliates is a member shall not be aggregated with any shares of Common Stock Beneficially Owned by any transferee that has become a party to this Agreement pursuant to Section 2.01(b) so long as such transferee is not a member of any Group of which FH or any of its Affiliates is also a memberMaximum Exchange Amount.