Brigham Exploration Company Senior Notes due 2018 PURCHASE AGREEMENT
Exhibit 10.49
Execution version
$300,000,000
Xxxxxxx Exploration Company
Senior Notes due 2018
September 16, 2010
Credit Suisse Securities (USA) LLC,
Banc of America Securities LLC,
As Representatives of the Several Purchasers,
c/o Credit Suisse Securities (USA) LLC (“Credit Suisse”),
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Banc of America Securities LLC,
As Representatives of the Several Purchasers,
c/o Credit Suisse Securities (USA) LLC (“Credit Suisse”),
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. Xxxxxxx Exploration Company, a Delaware corporation (the “Company”), agrees
with Credit Suisse Securities (USA) LLC and Banc of America Securities LLC as representatives (the
“Representatives”) of the several initial purchasers named on Schedule A hereto (the initial
“Purchasers”) subject to the terms and conditions stated herein, to issue and sell to the
Purchasers U.S. $300,000,000 principal amount of its Senior Notes due 2018 (“Offered Securities”)
to be issued under an indenture, dated as of September 27, 2010 and as supplemented through the
Closing Date (the “Indenture”), between the Company and Xxxxx Fargo Bank, N.A., as Trustee. The
Offered Securities will be unconditionally guaranteed as to the payment of principal and interest
(the “Guarantees”) by Xxxxxxx, Inc., a Nevada corporation, and Xxxxxxx Oil and Gas, L.P., a
Delaware limited partnership (each, a “Guarantors” and together, the “Guarantors”).
The holders of the Offered Securities will be entitled to the benefits of a Registration
Rights Agreement dated as of the Closing Date among the Company, the Guarantors and the Purchasers
(the “Registration Rights Agreement”), pursuant to which the Company and the Guarantors will agree
to file with the Commission (a) a registration statement under the Securities Act relating to a new
series of notes and related guarantees (the “Exchange Securities”), which shall be substantially
identical to the Offered Securities and the Guarantees (except that the Exchange Securities shall
have been registered pursuant to such registration statement, will not be subject to restrictions
on transfer or contain additional interest provisions), to be offered in exchange for the Offered
Securities and the Guarantees (such offer to exchange being referred to as the “Exchange Offer”),
and/or (b) under certain circumstances, a shelf registration statement pursuant to Rule 415 under
the Securities Act (the “Shelf Registration Statement”) relating to the resale by certain holders
of the Offered Securities. If the Company or the Guarantors fail to satisfy their obligations
under the Registration Rights Agreement, they will be required to pay additional interest to the
holders of the Offered Securities under certain circumstances.
Each of the Company and the Guarantors hereby agrees with the Purchasers as follows:
2. Representations and Warranties of the Company and the Guarantors. Each of the Company and
the Guarantors represents and warrants to, and agrees with, the Purchasers that:
(a) Offering Circulars; Certain Defined Terms. The Company has prepared or will
prepare a Preliminary Offering Circular and a Final Offering Circular.
For purposes of this Agreement:
“Applicable Time” means 10:30 a.m. (New York time) on the date of this Agreement.
“Closing Date” has the meaning set forth in Section 3 hereof.
“Commission” means the United States Securities and Exchange Commission.
“Exchange Act” means the United States Securities Exchange Act of 1934.
“Final Offering Circular” means the final offering circular relating to the Offered
Securities to be offered by the Purchasers that discloses the offering price and other final terms
of the Offered Securities and is dated as of the date of this Agreement (even if finalized and
issued subsequent to the date of this Agreement).
“Free Writing Communication” means a written communication (as such term is defined in
Rule 405) that constitutes an offer to sell or a solicitation of an offer to buy the Offered
Securities and is made by means other than the Preliminary Offering Circular or the Final Offering
Circular.
“General Disclosure Package” means the Preliminary Offering Circular together with any Issuer
Free Writing Communication existing at the Applicable Time and the information in which is intended
for general distribution to prospective investors, as evidenced by its being specified in Schedule
B hereto.
“Issuer Free Writing Communication” means a Free Writing Communication prepared by or on
behalf of the Company, used or referred to by the Company or containing a description of the final
terms of the Offered Securities or of their offering, in the form retained in the Company’s
records.
“Preliminary Offering Circular” means the preliminary offering circular, dated
September 13, 2010, relating to the Offered Securities to be offered by the Purchasers.
“Rules and Regulations” means the rules and regulations of the Commission.
“Securities Act” means the United States Securities Act of 1933.
“Securities Laws” means, collectively, the Xxxxxxxx-Xxxxx Act of 2002 (“Xxxxxxxx-Xxxxx”), the
Securities Act, the Exchange Act, the Rules and Regulations, the auditing principles, rules,
standards and practices applicable to auditors of “issuers” (as defined in Xxxxxxxx-Xxxxx)
promulgated or approved by the Public Company Accounting Oversight Board and, as applicable, the
rules of the New York Stock Exchange and the NASDAQ Stock Market (“Exchange Rules”).
“Supplemental Marketing Material” means any Issuer Free Writing Communication other than any
Issuer Free Writing Communication specified in Schedule B hereto. Supplemental
Marketing Materials include, but are not limited to, the electronic Bloomberg roadshow slides and
the accompanying audio recording.
Unless otherwise specified, a reference to a “rule” is to the indicated rule under the
Securities Act.
(b) Disclosure. As of the date of this Agreement, the Final Offering Circular does
not, and as of the Closing Date, the Final Offering Circular will not include 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. At the Applicable Time, and as of the Closing Date, neither (i) the General
Disclosure Package, nor (ii) any individual Supplemental Marketing Material, when
considered together with the General Disclosure Package, included, or will include, any
untrue statement of a material fact or omitted, or will 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 two
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sentences do not apply to statements in or omissions from the Preliminary or Final Offering
Circular, the General Disclosure Package or any Supplemental Marketing Material based upon
written information furnished to the Company by the Purchasers specifically for use
therein, it being understood and agreed that the only such information is that described as
such in Section 8(b) hereof. Except as disclosed in the General Disclosure Package, on the
date of this Agreement, the Company’s Annual Report on Form 10-K most recently filed with
the Commission and all subsequent reports (collectively, the “Exchange Act Reports”) which
have been filed by the Company with the Commission or sent to stockholders pursuant to the
Exchange Act and incorporated by reference in the Preliminary or Final Offering Circular do
not 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, not misleading. Such documents, when they were filed with the Commission,
conformed in all material respects to the requirements of the Exchange Act and the Rules
and Regulations.
(c) Good Standing of the Company. The Company has been duly incorporated and is
existing and in good standing under the laws of the State of Delaware, with power and
authority (corporate and other) to own its properties and conduct its business as described
in the General Disclosure Package; and the Company is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such qualification, except for
any jurisdiction where the failure to be so qualified would not, individually or in the
aggregate, have a material adverse effect on the condition (financial or other), business,
properties, prospects or results of operations of the Company and its subsidiaries taken as
a whole (“Material Adverse Effect”).
(d) Subsidiaries. Each subsidiary of the Company has been duly incorporated or
organized and is existing and in good standing under the laws of the jurisdiction of its
incorporation or formation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the General Disclosure Package; and
each subsidiary of the Company is duly qualified to do business as a foreign corporation or
limited partnership in good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such qualification, except for
any such jurisdiction where the failure to be so qualified would not have a Material
Adverse Effect; all of the issued and outstanding equity interests of each subsidiary of
the Company have been duly authorized and validly issued and are fully paid and
nonassessable; and the capital stock or other equity securities of each subsidiary owned by
the Company, directly or through subsidiaries, is owned free from liens, encumbrances and
defects, except as disclosed in the General Disclosure Package or pledged in connection
with the Company’s senior credit agreement. The Company has no subsidiaries other than the
Guarantors.
(e) Indenture; Security Interests. The Indenture has been duly authorized; the
Offered Securities have been duly authorized; and when the Offered Securities are delivered
and paid for pursuant to this Agreement on the Closing Date, the Indenture will have been
duly executed and delivered, such Offered Securities will have been duly executed,
authenticated, issued and delivered, will conform to the information in the General
Disclosure Package and will conform to the description of such Offered Securities contained
in the Final Offering Circular and the Indenture and such Offered Securities
will constitute valid and legally binding obligations of the Company, enforceable in
accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to or
affecting creditors’ rights and to general equity principles and entitled to the benefits
and security provided by the Indenture.
(f) Trust Indenture Act. On the Closing Date, the Indenture will conform in all
material respects to the requirements of the Trust Indenture Act, and the rules and
regulations of the Commission applicable to an indenture which is qualified thereunder.
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(g) No Finder’s Fee. Except as disclosed in the General Disclosure Package, there
are no contracts, agreements or understandings between the Company and any person that
would give rise to a valid claim against the Company or any Purchaser for a brokerage
commission, finder’s fee or other like payment.
(h) Registration Rights Agreement. The Registration Rights Agreement has been duly
authorized by the Company and the Guarantors; and, when the Offered Securities are
delivered and paid for pursuant to this Agreement on the Closing Date, the Registration
Rights Agreement will have been duly executed and delivered and will be the valid and
legally binding obligations of the Company and the Guarantors, enforceable in accordance
with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting creditors’
rights and to general equity principles.
(i) Exchange Securities. On the Closing Date, the Exchange Securities will have been
duly authorized by the Company and the Guarantors; and when the Exchange Securities are
issued, executed and authenticated in accordance with the terms of the Exchange Offer and
the Indenture, the Exchange Securities will be entitled to the benefits of the Indenture
and will be the valid and legally binding obligations of the Company and the Guarantors,
enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors’ rights and to general equity principles.
(j) Guarantee. The Guarantee to be endorsed on the Offered Securities by each
Guarantor has been duly authorized by such Guarantor; and, when the Offered Securities are
delivered and paid for pursuant to this Agreement on the Closing Date and issued, executed
and authenticated in accordance with the terms of the Indenture, the Guarantee of each
Guarantor endorsed thereon will have been duly executed and delivered by each such
Guarantor, will conform to the description thereof contained in the Final Offering Circular
and will constitute valid and legally binding obligations of such Guarantor, enforceable in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to or
affecting creditors’ rights and to general equity principles. The Guarantee to be endorsed
on the Exchange Securities by each Guarantor has been duly authorized by such Guarantor;
and, when issued, will have been duly executed and delivered by each such Guarantor and
will conform to the description thereof contained in the Final Offering Circular. When the
Exchange Securities have been issued, executed and authenticated in accordance with the
terms of the Exchange Offer and the Indenture, the Guarantee of each Guarantor endorsed
thereon will constitute valid and legally binding obligations of such Guarantor,
enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors’ rights and to general equity principles.
(k) No Registration Rights. Other than the Registration Rights Agreement, there are
no contracts, agreements or understandings between the Company or any Guarantor and any
person granting such person the right to require the Company or such Guarantor to file a
registration statement under the Securities Act with respect to any securities of the
Company or such Guarantor or to require the Company or such Guarantor to include such
securities with the Securities and Guarantees registered pursuant to any Registration
Statement (collectively, “registration rights”).
(l) Absence of Further Requirements. No consent, approval, authorization, or order
of, or filing or registration with, any person (including any governmental agency or body
or any court) is required for the consummation of the transactions contemplated by this
Agreement, the Indenture and the Registration Rights Agreement in connection with the
offering, issuance and sale of the Offered Securities and the Guarantees by the Company and
the Guarantors except for (i) such as have been obtained, (ii) the effective registration
required under the Exchange Offer Registration Statement or, if required, the Shelf
Registration Statement, or (iii) the qualification of
the Indenture under the Trust Indenture Act of 1939, as amended (the “Trust Indenture
Act”), in connection with any registered issuance of the Exchange Notes.
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(m) Title to Property. Except as disclosed in the General Disclosure Package, the
Company and its subsidiaries have (i) defensible title to all their interests in the oil
and gas properties described in the General Disclosure Package as being owned or leased by
them, title investigations having been carried out by the Company in accordance with
customary practice in the oil and gas industry, and (ii) good and marketable title to all
other real property and all personal property described in the General Disclosure Package
as being owned by them, in each case (except as encumbered under the Company’s senior
credit agreement) free and clear of any security interests, mortgages, liens, encumbrances,
equities, claims and other title defects, except such as do not materially and adversely
affect the value of such property and do not materially interfere with the use made or
proposed to be made of such property by the Company or its subsidiaries. Except as
disclosed in the General Disclosure Package, the Company and its subsidiaries do not hold
any leased real or personal property under valid and enforceable leases with terms or
provisions that would materially interfere with the use made or to be made thereof by them.
(n) Absence of Defaults and Conflicts Resulting from Transaction. The execution,
delivery and performance of the Indenture, this Agreement and the Registration Rights
Agreement, and the issuance and sale of the Offered Securities and Guarantees and
compliance with the terms and provisions thereof will not result in a breach or violation
of any of the terms and provisions of, or constitute a default or a Debt Repayment
Triggering Event (as defined below) under, or result in the imposition of any lien, charge
or encumbrance upon any property or assets of the Company or the Guarantors pursuant to (i)
the charter or by-laws of the Company or the Guarantors,(ii) any statute, any rule,
regulation or order of any governmental agency or body or any court, domestic or foreign,
having jurisdiction over the Company or the Guarantors or any of their properties, or (iii)
any agreement or instrument to which the Company or the Guarantors is a party or by which
the Company or the Guarantors is bound or to which any of the properties of the Company or
the Guarantors is subject, except (in the case of (ii) and (iii)) for breaches or
violations which would not have a Material Adverse Effect; a “Debt Repayment Triggering
Event” means any event or condition that gives, or with the giving of notice or lapse of
time would give, the holder of any note, debenture, or other evidence of indebtedness (or
any person acting on such holder’s behalf) the right to require the repurchase, redemption
or repayment of all or a portion of such indebtedness by the Company or the Guarantors.
(o) Absence of Existing Defaults and Conflicts. None of the Company or the
Guarantors is in violation of its respective charter or by-laws or in default (or with the
giving of notice or lapse of time would be in default) under any existing obligation
agreement, covenant or condition contained in any indenture, loan agreement, mortgage,
lease or other agreement or instrument to which any of them is a party or by which any of
them is bound or to which any of the properties of any of them is subject, except such
defaults that would not, individually or in the aggregate, result in a Material Adverse
Effect.
(p) Authorization of Agreement. This Agreement has been duly authorized, executed
and delivered by the Company and the Guarantors.
(q) Possession of Licenses and Permits. The Company and the Guarantors possess, and
are in compliance with the terms of, all adequate certificates, authorizations, franchises,
licenses and permits (“Licenses”) necessary or material to the conduct of the business now
conducted or proposed in the General Disclosure Package to be conducted by them and have
not received any notice of proceedings relating to the revocation or modification of any
Licenses that, if determined adversely to the Company or the Guarantors, would individually
or in the aggregate have a Material Adverse Effect.
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(r) Absence of Labor Dispute. No labor dispute with the employees of the Company or
the Guarantors exists or, to the knowledge of the Company or the Guarantors, is imminent
that could have a Material Adverse Effect.
(s) Possession of Intellectual Property. The Company and the Guarantors own, possess
or can acquire on reasonable terms, adequate trademarks, trade names and other rights to
inventions, know how, patents, copyrights, confidential information and other intellectual
property (collectively, “intellectual property rights”) necessary to conduct the business
now operated by them, or presently employed by them, and have not received any notice of
infringement of or conflict with asserted rights of others with respect to any intellectual
property rights that, if determined adversely to the Company or the Guarantors, would
individually or in the aggregate have a Material Adverse Effect.
(t) Environmental Laws. Except as disclosed in the General Disclosure Package, none
of the Company or the Guarantors is in violation of any statute, any rule, regulation,
decision or order of any governmental agency or body or any court, domestic or foreign,
relating to the use, disposal or release of hazardous or toxic substances or relating to
the protection or restoration of the environment or human exposure to hazardous or toxic
substances (collectively, “environmental laws”), owns or operates any real property
contaminated with any substance that is subject to any environmental laws, is liable for
any off site disposal or contamination pursuant to any environmental laws, or is subject to
any claim relating to any environmental laws, which violation, contamination, liability or
claim would individually or in the aggregate have a Material Adverse Effect; and the
Company is not aware of any pending investigation which might lead to such a claim.
(u) Accurate Disclosure. The statements in the General Disclosure Package and the
Final Offering Circular under the headings “Certain United States Federal Income Tax
Considerations”, “Description of the Notes” and “Description of other Indebtedness” insofar
as such statements summarize legal matters, agreements, documents or proceedings discussed
therein, are accurate and fair summaries of such legal matters, agreements, documents or
proceedings and present the information required to be shown.
(v) Absence of Manipulation. None of the Company, the Guarantors and their respective
affiliates has, either alone or with one or more other persons, bid for or purchased for
any account in which it or any of its affiliates had a beneficial interest in any Offered
Securities or attempted to induce any person to purchase any Offered Securities.
(w) Statistical and Market-Related Data. Any third-party statistical and
market-related data included in a Preliminary Offering Circular, a Final Offering Circular,
or any Issuer Free Writing Communication are based on or derived from sources that the
Company and the Guarantors believe to be reliable and accurate.
(x) Internal Controls and Compliance with the Xxxxxxxx-Xxxxx Act. Except as set forth
in the General Disclosure Package, the Company and the Guarantors and the Company’s Board
of Directors (the “Board”) are in compliance with Xxxxxxxx-Xxxxx and all applicable
Exchange Rules. The Company and each Guarantor maintains a system of internal controls,
including, but not limited to, disclosure controls and procedures, internal controls over
accounting matters and financial reporting, and legal and regulatory compliance controls
(collectively, “Internal Controls”), that comply with the Securities Laws and are
sufficient to provide reasonable assurances 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 U.S.
Generally Accepted Accounting Principles and to maintain accountability for assets, (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 Internal Controls are, or, upon consummation of the offering of
the Offered Securities will be, overseen by the Audit Committee (the “Audit Committee”) of
the Board in accordance with Exchange Rules. Neither the Company nor the Guarantors have
publicly disclosed or reported to the Audit Committee or the Board, and within the next 90
days neither the Company nor the Guarantors reasonably expect to publicly disclose or
report to the Audit Committee or the Board, a significant deficiency, material weakness,
change in Internal Controls or fraud involving management or other employees who have a
significant role in Internal Controls (each, an “Internal Control Event”), any violation
of, or failure to comply with, the Securities Laws, or any matter which, if determined
adversely, would have a Material Adverse Effect.
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(y) Disclosure Controls and Procedures. The Company maintains disclosure controls
and procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act) that
comply with the requirements of the Exchange Act; such disclosure controls and procedures
have been designed to ensure that material information relating to the Company and its
subsidiaries is made known to the Company’s principal executive officer and principal
financial officer by others within those entities; and such disclosure controls and
procedures are effective.
(z) Absence of Accounting Issues. Except as set forth in the General Disclosure
Package, the Audit Committee is not reviewing or investigating, and neither the Company’s
independent auditors nor its internal auditors have recommended that the Audit Committee
review or investigate, (i) adding to, deleting, changing the application of, or changing
the Company’s disclosure with respect to, any of the Company’s material accounting
policies; (ii) any matter which could result in a restatement of the Company’s financial
statements for any annual or interim period during the current or prior three fiscal years;
or (iii) any Internal Control Event.
(aa) Litigation. Except as disclosed in the General Disclosure Package, there are no
pending actions, suits or proceedings (including any inquiries or investigations by any
court or governmental agency or body, domestic or foreign) against or affecting the
Company, the Guarantors, or any of their respective properties that, if determined
adversely to the Company or the Guarantors, would individually or in the aggregate have a
Material Adverse Effect, or would materially and adversely affect the ability of the
Company or the Guarantors to perform their obligations under the Indenture, this Agreement,
or the Registration Rights Agreement, or which are otherwise material in the context of the
sale of the Offered Securities and the Guarantees; and no such actions, suits or
proceedings (including any inquiries or investigations by any court or governmental agency
or body, domestic or foreign) are threatened or, to the Company’s or the Guarantors’
knowledge, contemplated.
(bb) Financial Statements. The financial statements included in the General
Disclosure Package present fairly in all material respects the financial position of the
Company and its consolidated subsidiaries as of the dates shown and their results of
operations and cash flows for the periods shown, and such financial statements have been
prepared in conformity with the generally accepted accounting principles in the United
States applied on a consistent basis.
(cc) No Material Adverse Change in Business. Except as disclosed in the General
Disclosure Package, since the end of the period covered by the latest audited financial
statements included in the General Disclosure Package (i) there has been no change, nor any
development or event involving a prospective change, in the condition (financial or
otherwise), results of operations, business, properties or prospects of the Company and the
Guarantors, taken as a whole, that is material and adverse; (ii) except as
disclosed in or contemplated by the General Disclosure Package, there has been no dividend
or distribution of any kind declared, paid or made by the Company or the Guarantors on any
class of their capital stock and (iii) except as disclosed in or contemplated by the
General Disclosure Package, there has been no material adverse change in the capital stock,
short-term indebtedness, long-term indebtedness, net current assets or net assets of the
Company and the Guarantors.
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(dd) Reserve Engineers. Xxxxxx, Xxxxxxxxx & Associates, a petroleum engineering firm
from whose reserve reports information (the “Reserve Information”) is set forth in the
General Disclosure Package, are independent petroleum engineers with respect to the
Company. Other than (i) the production of reserves in the ordinary course of business (ii)
intervening price fluctuations or (iii) as described in the General Disclosure Package, the
Company is not aware of any facts or circumstances that would result in a material adverse
change in its proved reserves in the aggregate, or the aggregate present value of estimated
future net revenues of the Company or the standardized measure of discounted future net
cash flows therefrom, as described in the General Disclosure Package and reflected in the
Reserve Information as of the respective dates such information is given. Estimates of the
proved reserves and the present value of the estimated future net revenues and the
discounted future net cash flows derived therefrom as described in the General Disclosure
Package and reflected in the Reserve Information comply in all material respects to the
applicable requirements of the Act.
(ee) Solvency. All indebtedness represented by the Offered Securities is being
incurred for the purposes set forth in the General Disclosure Package under the heading
“Use of Proceeds”. On the Closing Date, the Company will be solvent. As used in this
paragraph, “solvent” means, with respect to a particular date, that on such date (i) the
present fair market value (present fair saleable value) of the assets of the Company and
each of its subsidiaries is not less than the total amount required to pay the probable
liabilities of the Company and each of such subsidiaries on its total existing debts and
liabilities (including contingent liabilities) as they become absolute and matured, (ii)
the Company and each of its subsidiaries are able to realize upon their assets and pay
their debts and other liabilities, contingent obligations and commitments as they mature
and become due in the normal course of business, (iii) assuming the sale of the Offered
Securities as contemplated by this Agreement and the General Disclosure Package, each of
the Company and the subsidiaries is not incurring debts or liabilities beyond its ability
to pay such debts and liabilities as they mature, and (iv) each of the Company and its
subsidiaries is not engaged in any business or transaction, and is not about to engage in
any business or transaction, for which its property would constitute unreasonably small
capital after giving due consideration to the prevailing practice in the industry in which
each of the Company and such subsidiaries is engaged. In computing the amount of such
contingent liabilities at any time, it is intended that such liabilities will be computed
at the amount that, in the light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an actual or matured
liability.
(ff) Investment Company Act.— Neither the Company nor any Guarantor is and, after
giving effect to the offering and sale of the Offered Securities and the application of the
proceeds thereof as described in the General Disclosure Package, will not be an “investment
company” as defined in the Investment Company Act of 1940 (the “Investment Company Act”).
(gg) Ratings. No “nationally recognized statistical rating organization” as such
term is defined for purposes of Rule 436(g)(2) (i) has imposed (or has informed the Company
or any Guarantor that it is considering imposing) any condition (financial or otherwise) on
the Company’s or any Guarantor’s retaining any rating assigned to the Company or any
Guarantor or any securities of the Company or any Guarantor or (ii) has indicated to the
Company or any Guarantor that it is considering any of the actions described in Section
7(b)(ii) hereof.
(hh) Regulations T, U, X. Neither the Company nor any Guarantor nor any agent
thereof acting on their behalf has taken, and none of them will take, any action that might
cause this Agreement or the issuance or sale of the Offered Securities to violate
Regulation T, Regulation U or Regulation X of the Board of Governors of the Federal Reserve
System.
(ii) Class of Securities Not Listed. The Offered Securities are eligible for resale
pursuant to Rule 144A under the Securities Act, and no securities of the same class (within
the meaning of Rule 144A(d)(3)) as the Offered Securities are listed on any national
securities exchange
registered under Section 6 of the Exchange Act or quoted in a U.S. automated inter-dealer
quotation system.
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(jj) No Registration. The offer and sale of the Offered Securities in the manner
contemplated by this Agreement will be exempt from the registration requirements of the
Securities Act by reason of Section 4(2) thereof, Regulation D thereunder and Regulation S
thereunder; and it is not necessary to qualify an indenture in respect of the Offered
Securities under the United States Trust Indenture Act of 1939, as amended (the “Trust
Indenture Act”).
(kk) No General Solicitation; No Directed Selling Efforts. Neither the Company, nor
any Guarantor, nor any of their respective affiliates, nor any person acting on its or
their behalf (i) has, within the six-month period prior to the date hereof, offered or sold
in the United States or to any U.S. person (as such terms are defined in Regulation S under
the Securities Act) the Offered Securities or any security of the same class or series as
the Offered Securities or (ii) has offered or will offer or sell the Offered Securities
(A) in the United States by means of any form of general solicitation or general
advertising within the meaning of Rule 502(c) or (B) with respect to any such securities
sold in reliance on Rule 903 of Regulation S (“Regulation S”) under the Securities Act, by
means of any directed selling efforts within the meaning of Rule 902(c) of Regulation S.
The Company, the Guarantors, their respective affiliates and any person acting on its or
their behalf have complied and will comply with the offering restrictions requirement of
Regulation S. Neither the Company nor any Guarantor has entered and neither the Company nor
any Guarantor will enter into any contractual arrangement with respect to the distribution
of the Offered Securities except for this Agreement.
(ll) Compliance with Anti-Bribery Laws, Anti-Money Laundering Laws and Laws and
Regulations Imposing U.S. Economic Sanctions. Each of the Company and the Guarantors and
their affiliates and their respective officers, directors, supervisors, managers, agents,
or employees, have not violated, the Company’s participation in the offering will not
violate, and the Company has instituted and maintains policies and procedures designed to
ensure continued compliance with: (i) any applicable anti-bribery laws, rules or
regulations of any locality, including, but not limited to, any law, rule, or regulation
promulgated to implement the OECD Convention on Combating Bribery of Foreign Public
Officials in International Business Transactions, signed December 17, 1997, the U.S.
Foreign Corrupt Practices Act of 1977 or any other law, rule or regulation of similar
purpose and scope; (ii) applicable federal, state, international, foreign or other
anti-money laundering laws, regulations or government guidance regarding anti-money
laundering, including, but not limited to, Title 18 U.S. Code section 1956 and 1957, the
Patriot Act, the Bank Secrecy Act, and international anti-money laundering principals or
procedures by an intergovernmental group or organization, such as the Financial Action Task
Force on Money Laundering, of which the United States is a member and with which
designation the United States representative to the group or organization continues to
concur, all as amended, and any Executive Order, directive, or regulation pursuant to the
authority of any of the foregoing, or any orders or licenses issued thereunder; or (iii)
laws and regulations imposing U.S. economic sanctions measures, including, but not limited
to, the International Emergency Economic Powers Act, the Trading with the Enemy Act, the
United Nations Participation Act, and the Syria Accountability and Lebanese Sovereignty
Act, all as amended, and any Executive Order, directive, or regulation pursuant to the
authority of any of the foregoing, including the regulations of the United States Treasury
Department set forth under 31 CFR, Subtitle B, Chapter V, as amended, or any orders or
licenses issued thereunder.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the representations,
warranties and agreements and subject to the terms and conditions set forth herein, the Company
agrees to sell to the several Purchasers and each of the Purchasers agrees, severally and not
jointly, to purchase from the Company, at a purchase price of 97.9% of the principal amount
thereof, the respective principal amounts of Offered Securities set forth opposite the names of the
several Purchasers in Schedule A hereto.
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The Company will deliver against payment of the purchase price the Offered Securities to be
offered and sold by the Purchasers in reliance on Regulation S (the “Regulation S Securities”) in
the form of one or more permanent global notes in registered form without interest coupons (the
“Offered Regulation S Global securities”) which will be deposited with the Trustee as custodian for
The Depository Trust Company (“DTC”) for the respective accounts of the DTC participants for Xxxxxx
Guaranty Trust Company of New York, Brussels office, as operator of the Euroclear System
(“Euroclear”), and Clearstream Banking, société anonyme (“Clearstream, Luxembourg”) and registered
in the name of Cede & Co., as nominee for DTC. The Company will deliver against payment of the
purchase price the Offered Securities to be purchased by each Purchaser hereunder and to be offered
and sold by each Purchaser in reliance on Rule 144A (the “144A Securities”) in the form of one or
more permanent global notes in definitive form without interest coupons (the “Restricted Global
Securities”) deposited with the Trustee as custodian for DTC and registered in the name of Cede &
Co., as nominee for DTC. The Regulation S Global Securities and the Restricted Global Securities
shall be assigned separate CUSIP numbers. The Restricted Global Securities shall include the legend
regarding restrictions on transfer set forth under “Transfer Restrictions” in the Final Offering
Circular. Until the termination of the distribution compliance period (as defined in Regulation S)
with respect to the offering of the Offered Securities, interests in the Regulation S Global
Securities may only be held by the DTC participants for Euroclear and Clearstream, Luxembourg.
Interests in any permanent global notes will be held only in book-entry form through Euroclear,
Clearstream, Luxembourg or DTC, as the case may be, except in the limited circumstances described
in the Final Offering Circular.
Payment for the Regulation S Securities and the 144A Securities shall be made by the
Purchasers in Federal (same day) funds by wire transfer to the account specified in writing by the
Company two days prior to the Closing Date at the office of Xxxxxx & Xxxxxx, L.L.P., 2500 First
City Tower, 0000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxx 00000 at 10:00 A.M., (New York time), on September
27, 2010, or at such other time not later than seven full business days thereafter as the
Representatives and the Company determine, such time being herein referred to as the “Closing
Date”, against delivery to the Trustee as custodian for DTC of (i) the Regulation S Global
Securities representing all of the Regulation S Securities for the respective accounts of the DTC
participants for Euroclear and Clearstream, Luxembourg and (ii) the Restricted Global Securities
representing all of the Offered 144A Securities. The Regulation S Global Securities and the
Restricted Global Securities will be made available for checking at the above office of Xxxxxx &
Xxxxxx, LLP at least 24 hours prior to the Closing Date.
4. Representations by Purchasers; Resale by Purchasers. (a) Each Purchaser
severally represents and warrants to the Company and the Guarantors that it is a “qualified
institutional buyer” (a “QIB”) within the meaning of Rule 144A and an “accredited investor”
within the meaning of Regulation D under the Securities Act.
(b) Each Purchaser severally acknowledges that the Offered Securities have not been
registered under the Securities Act and may not be offered or sold within the United States
or to, or for the account or benefit of, U.S. persons except in accordance with Regulation
S or pursuant to an exemption from the registration requirements of the Securities Act.
Each Purchaser severally represents and agrees that it has offered and sold the Offered
Securities, and will offer and sell the Offered Securities (i) as part of its distribution
at any time and (ii) otherwise until 40 days after the later of the commencement of the
offering and the Closing Date, only in accordance with Rule 903 or Rule 144A. Accordingly,
neither such Purchaser nor its affiliates, nor any persons acting on its or their behalf,
have engaged or will engage in any directed selling efforts with respect to the Offered
Securities, and such Purchaser, its affiliates and all persons acting on its or their
behalf have complied and will comply with the offering restrictions requirement of
Regulation S. Each Purchaser severally agrees that, at or prior to confirmation of sale of
the Offered Securities, other than a sale pursuant to Rule 144A, such Purchaser will have
sent to each distributor, dealer or person receiving a selling concession, fee or other
remuneration that purchases the Offered Securities from it during the restricted period a
confirmation or notice to substantially the following effect:
“The Securities covered hereby have not been registered under the U.S.
Securities Act of 1933 (the “Securities Act”) and may not be offered or
sold within the United States or to, or for the account or benefit of,
U.S. persons (i) as part of their distribution at any time or (ii)
otherwise until 40 days after the later of the date of the commencement of
the offering and the closing date, except in either case in accordance
with Regulation S (or Rule 144A if available) under the Securities Act.
Terms used above have the meanings given to them by Regulation S.”
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Terms used in this subsection (b) have the meanings given to them by Regulation S.
(c) Each Purchaser severally agrees that it and each of its affiliates has not
entered and will not enter into any contractual arrangement with respect to the
distribution of the Offered Securities except for any such arrangements with the other
Purchasers or affiliates of the other Purchasers or with the prior written consent of the
Company.
(d) Each Purchaser severally agrees that it and each of its affiliates will not
offer or sell the Offered Securities in the United States by means of any form of general
solicitation or general advertising within the meaning of Rule 502(c), including, but not
limited to (i) any advertisement, article, notice or other communication published in any
newspaper, magazine or similar media or broadcast over television or radio, or (ii) any
seminar or meeting whose attendees have been invited by any general solicitation or general
advertising. Each Purchaser severally agrees, with respect to resales made in reliance on
Rule 144A of any of the Offered Securities, to deliver either with the confirmation of such
resale or otherwise prior to settlement of such resale a notice to the effect that the
resale of such Offered Securities has been made in reliance upon the exemption from the
registration requirements of the Securities Act provided by Rule 144A.
(e) In relation to each Member State of the European Economic Area which
has implemented the Prospectus Directive (each, a “Relevant Member State”), each of the
Purchasers severally represents and agrees that with effect from and including the date on
which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant
Implementation Date”) it has not made and will not make an offer of Offered Securities to
the public in that Relevant Member State prior to the publication of a prospectus in
relation to the Offered Securities which has been approved by the competent authority in
that Relevant Member State or, where appropriate, approved in another Relevant Member State
and notified to the competent authority in that Relevant Member State, all in accordance
with the Prospectus Directive, except that it may, with effect from and including the
Relevant Implementation Date, make an offer of Offered Securities to the public in that
Relevant Member State at any time:
(i) to legal entities which are authorized or regulated to operate in the
financial markets or, if not so authorized or regulated, whose corporate purpose is
solely to invest in securities;
(ii) to any legal entity which has two or more of (A) an average of at least
250 employees during the last financial year; (B) a total balance sheet of more
than €43,000,000 and (C) an annual net turnover of more than €50,000,000, as
shown in its last annual or consolidated accounts; or
(iii) in any other circumstances which do not require the publication by the
Company of a prospectus pursuant to Article 3 of the Prospectus Directive.
For the purposes of this provision, the expression an “offer of Offered Securities to
the public” in relation to any Offered Securities in any Relevant Member State means the
communication in any form and by any means of sufficient information on the terms of the
offer and the Offered Securities to be offered so as to enable an investor to decide to
purchase or subscribe the Offered Securities, as the same may be varied in that Member
State by any measure
implementing the Prospectus Directive in that Member State and the expression “Prospectus
Directive” means Directive 2003/71/EC and includes any relevant implementing measure in
each Relevant Member State.
-11-
(f) Each of the Purchasers severally represents and agrees that:
(i) it has only communicated or caused to be communicated and will only communicate or
cause to be communicated an invitation or inducement to engage in investment activity
(within the meaning of Section 21 of the Financial Services and Markets Xxx 0000 (the
“FSMA”)) to persons who have professional experience in matters relating to investments
falling within Article 19(5) of the FSMA or in circumstances in which Section 21(1) of the
FSMA does not apply to the Company or the Guarantors; and
(ii) it has complied and will comply with all applicable provisions of the FSMA with
respect to anything done by it in relation to the Offered Securities in, from or otherwise
involving the United Kingdom.
5. Certain Agreements of the Company and each Guarantor. The Company and each Guarantor
agree with the several Purchasers that:
(a) Amendments and Supplements to Offering Circulars. The Company and the Guarantors
will promptly advise the Representatives of any proposal to amend or supplement the
Preliminary or Final Offering Circular and will not effect such amendment or
supplementation without the Representatives’ consent. If, at any time prior to the
completion of the resale of the Offered Securities by the Purchasers, there occurs an event
or development as a result of which any document included in the Preliminary or Final
Offering Circular, the General Disclosure Package or any Supplemental Marketing Material,
if republished immediately following such event or development, included or would include
an untrue statement of a material fact or omitted or would 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 Company and the Guarantors promptly will notify
the Representatives of such event and promptly will prepare and furnish, at its own
expense, to the Purchasers and the dealers and to any other dealers at the request of the
Representatives, an amendment or supplement which will correct such statement or omission.
Neither the Representatives’ consent to, nor its delivery to offerees or investors of, any
such amendment or supplement shall constitute a waiver of any of the conditions set forth
in Section 7.
(b) Furnishing of Offering Circulars. The Company and the Guarantors will furnish to
the Representatives copies of the Preliminary Offering Circular, each other document
comprising a part of the General Disclosure Package, the Final Offering Circular, all
amendments and supplements to such documents and each item of Supplemental Marketing
Material, in each case as soon as available and in such quantities as the Representatives
request. At any time when the Company is not subject to Section 13 or 15(d), the Company
and the Guarantors will promptly furnish or cause to be furnished to the Representatives
(and, upon request, to each of the other Purchasers) and, upon request of holders and
prospective purchasers of the Offered Securities, to such holders and purchasers, copies of
the information required to be delivered to holders and prospective purchasers of the
Offered Securities pursuant to Rule 144A(d)(4) (or any successor provision thereto) in
order to permit compliance with Rule 144A in connection with resales by such holders of the
Offered Securities. The Company will pay the expenses of printing and distributing to the
Purchasers all such documents.
(c) Blue Sky Qualifications. The Company and the Guarantors will arrange for the
qualification of the Offered Securities for sale and the determination of their eligibility
for investment under the laws of such jurisdictions in the United States and
Canada as the Representatives designate and will continue such qualifications in effect so
long as required for the resale of the Offered Securities by the Purchasers, provided that
the Company will not be required
to qualify as a foreign corporation or to file a general consent to service of process in
any such state.
-12-
(d) Reporting Requirements. For so long as the Offered Securities remain
outstanding, the Company will furnish to the Representatives and, upon request, to each of
the other Purchasers, as soon as practicable after the end of each fiscal year, a copy of
the Company’s annual report to stockholders for such year; and the Company will furnish to
the Representatives and, upon request, to each of the other Purchasers (i) as soon as
available, a copy of each report and any definitive proxy statement of the Company filed
with the Commission under the Exchange Act or mailed to stockholders, and (ii) from time to
time, such other information concerning the Company and the Guarantors as the
Representatives may reasonably request. However, so long as the Company is subject to the
reporting requirements of either Section 13 or Section 15(d) of the Exchange Act and is
timely filing reports with the Commission on its Electronic Data Gathering, Analysis and
Retrieval system (“XXXXX”), it is not required to furnish such reports or statements to the
Purchasers.
(e) Transfer Restrictions. During the period of one year after the Closing Date, the
Company will, upon request, furnish to the Representatives, each of the other Purchasers
and any holder of Offered Securities a copy of the restrictions on transfer applicable to
the Offered Securities.
(f) No General Solicitation. The Company and the Guarantors will not engage and will
cause its other affiliates and any person acting on their behalf (other than, in any case,
the Purchasers and any of their affiliates, as to whom the Company and the Guarantors make
no covenant) not to engage, in any form of general solicitation or general advertising
(within the meaning of Regulation D under the Securities Act) in connection with any offer
or sale of the Offered Securities in the United States.
(g) No Directed Selling. The Company and the Guarantors will not engage and will
cause its other affiliates and any person acting on their behalf (other than, in any case,
the Purchasers and any of their affiliates, as to whom the Company and the Guarantors make
no covenant) not to engage, in any directed selling effort with respect to the Offered
Securities, and will comply, and will cause its other affiliates and any person acting on
their behalf (other than, in any case, the Purchasers and any of their affiliates, as to
whom the Company and the Guarantors make no covenant) to comply, with the offering
restrictions requirement of Regulation S. Terms used in this Section 5(g) have the
meanings given to them by Regulation S.
(h) No Resales by Affiliates. During the period of one year after the Closing Date,
the Company will not, and will not permit any of its affiliates (as defined in Rule 144)
to, resell any of the Offered Securities that have been reacquired by any of them.
(i) Investment Company. During the period of one year after the Closing Date,
neither the Company nor any Guarantor will be or become, an open-end investment company,
unit investment trust or face-amount certificate company that is or is required to be
registered under Section 8 of the Investment Company Act.
(j) Payment of Expenses. Except as otherwise agreed to by the Company and the
Representatives with respect to the printing of the glossy copies of the Preliminary
Offering Circular, the Company and the Guarantors will pay all expenses incidental to the
performance of their respective obligations under this Agreement, the Indenture and the
Registration Rights Agreement, including but not limited to (i) the fees and expenses of
the Trustee and its professional advisers; (ii) all expenses in connection with the
execution, issue, authentication, packaging and initial delivery of the Offered Securities
and, as applicable, the Exchange Securities, the preparation and printing of this
Agreement, the Registration Rights
-13-
Agreement, the Offered Securities, the Indenture, the
Preliminary Offering Circular, any other documents comprising any part of the General Disclosure Package, the Final Offering Circular, all
amendments and supplements thereto, each item of Supplemental Marketing Material and any
other document relating to the issuance, offer, sale and delivery of the Offered Securities
and as applicable, the Exchange Securities; (iii) all fees and expenses (including fees and
expenses of counsel) of the Company in connection with approval of the Offered Securities
by DTC for “book-entry” transfer; (iv) any expenses (including fees and disbursements of
counsel to the Purchasers) incurred in connection with qualification of the Offered
Securities or the Exchange Securities for sale under the laws of such jurisdictions in the
United States and Canada as the Representatives designate and the preparation and printing
of memoranda relating thereto (v) any fees charged by investment rating agencies for the
rating of the Securities or the Exchange Securities, and (vi) expenses incurred in
distributing the Preliminary Offering Circular, any other documents comprising any part of
the General Disclosure Package, the Final Offering Circular (including any amendments and
supplements thereto) and any Supplemental Marketing Material to the Purchasers. The
Company and the Guarantors will also pay or reimburse the Purchasers (to the extent
incurred by them) for costs and expenses of the Company’s officers and employees and any
other expenses of the Company and the Guarantors relating to investor presentations on any
“road show” in connection with the offering and sale of the Offered Securities including,
without limitation, any travel expenses of the Company’s and the Guarantors’ officers and
employees and any other expenses of the Company and the Guarantors, except that costs
associated with the chartering of airplanes shall be split equally between the Company and
the Purchasers; provided that, except as provided in this Section 5(j) and in Sections 8
and 10 hereof, the Purchasers shall pay their own costs and expenses, including the costs
and expenses of their counsel.
(k) Use of Proceeds. The Company will use the net proceeds received in connection
with this offering in the manner described in the “Use of Proceeds” section of the General
Disclosure Package and, except as disclosed in the General Disclosure Package, the Company
does not intend to use any of the proceeds from the sale of the Offered Securities
hereunder to repay any outstanding debt owed to any affiliate of any Purchaser.
(l) Absence of Manipulation. In connection with the offering, until Credit Suisse
shall have notified the Company and the other Purchasers of the completion of the resale of
the Offered Securities, neither the Company, the Guarantors, nor any of their affiliates
will, either alone or with one or more other persons, bid for or purchase for any account
in which it or any of its affiliates has a beneficial interest any Offered Securities or
attempt to induce any person to purchase any Offered Securities; and neither it nor any of
their affiliates will make bids or purchases for the purpose of creating actual, or
apparent, active trading in, or of raising the price of, the Offered Securities.
(m) Restriction on Sale of Securities. For a period of 120 days after the date
hereof, neither the Company nor any Guarantor will, directly or indirectly, take any of the
following actions with respect to any United States dollar-denominated debt securities
issued or guaranteed by the Company or such Guarantor and having a maturity of more than
one year from the date of issue or any securities convertible into or exchangeable or
exercisable for any of its Securities (“Lock-Up Securities”): (i) offer, sell, issue,
contract to sell, pledge or otherwise dispose of Lock-Up Securities, (ii) offer, sell,
issue, contract to sell, contract to purchase or grant any option, right or warrant to
purchase Lock-Up Securities, (iii) enter into any swap, hedge or any other agreement that
transfers, in whole or in part, the economic consequences of ownership of Lock-Up
Securities, (iv) establish or increase a put equivalent position or liquidate or decrease a
call equivalent position in Lock-Up Securities within the meaning of Section 16 of the
Exchange Act or (v) file with the Commission a registration statement under the Securities
Act relating to Lock-Up Securities or publicly disclose the intention to take any such
action, without the prior written consent of the Representatives. Neither the Company nor
any Guarantor will at any time directly or indirectly, take any action referred to in
clauses (i) through (v) above with respect to any securities under circumstances where such
offer, sale, pledge, contract or disposition would cause the exemption afforded by Section
4(2) of the Securities Act or the safe harbor of Regulation S thereunder to cease to be
applicable to the offer and sale of the Offered Securities.
-14-
6. Free Writing Communications. (a) Issuer Free Writing Communications. The Company
and each Guarantor represents and agrees that, unless it obtains the prior consent of the
Representatives, and each Purchaser represents and agrees that, unless it obtains the prior
consent of the Company and the Representatives, it has not made and will not make any offer
relating to the Offered Securities that would constitute an Issuer Free Writing
Communication.
(b) Term Sheets. The Company consents to the use by any Purchaser of a Free Writing
Communication that (i) contains only (A) information describing the preliminary terms of
the Offered Securities or their offering or (B) information that describes the final terms
of the Offered Securities or their offering and that is included in or is subsequently
included in the Final Offering Circular, including by means of a pricing term sheet in the
form of Annex A hereto, or (ii) does not contain any material information about the Company
or any Guarantor or their securities that was provided by or on behalf of the Company or
any Guarantor, it being understood and agreed that the Company and each Guarantor shall not
be responsible to any Purchaser for liability arising from any inaccuracy in such Free
Writing Communications referred to in clause (i) or (ii) as compared with the information
in the Preliminary Offering Circular, the Final Offering Circular or the General Disclosure
Package.
7. Conditions of the Obligations of the Purchasers. The obligations of the several
Purchasers to purchase and pay for the Offered Securities will be subject to the accuracy of the
representations and warranties of the Company and the Guarantors herein (as though made on the
Closing Date), to the accuracy of the statements of officers of the Company and the Guarantors made
pursuant to the provisions hereof, to the performance by the Company and the Guarantors of their
obligations hereunder and to the following additional conditions precedent:
(a) Accountants’ Comfort Letter. The Purchasers shall have received a “comfort
letter” from KPMG LLP dated the date hereof on the General Disclosure Package in form and
substance satisfactory to the Purchasers concerning certain financial and accounting
information set forth in the General Disclosure Package. In addition, the Purchasers shall
have received a “bring down comfort letter” from KPMG LLP dated as of the Closing Date,
addressing the matters in the “comfort letter” delivered on the date hereof pursuant to the
preceding sentence, except that (i) each “bring-down comfort letter” shall cover the
financial and accounting information in the Final Offering Circular and any amendment or
supplement thereto and (ii) procedures shall be brought down to a date no more than 2 days
prior to the Closing Date, and otherwise in form and substance satisfactory to the
Purchasers.
(b) Reserve Engineer Comfort Letter. The Purchasers shall have received letters,
dated the date hereof, of Xxxxxx, Xxxxxxxxx & Associates, an independent petroleum
engineers firm for the Company, and in form and substance satisfactory to the
Representatives and the Representatives’ Counsel, with respect to the estimated quantities
of the Company’s reserves, the future net revenues from those reserves and their present
value as set forth in the General Disclosure Package and the Final Offering Circular and
such related matters as the Representatives shall reasonably request.
(b) No Material Adverse Change. Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or otherwise), results of
operations, business, properties or prospects of the Company and the Guarantors taken as a
whole which, in the judgment of the Representatives, is material and adverse and makes it
impractical or inadvisable to market the Offered Securities; (ii) any downgrading in the
rating of any debt securities of the Company by any “nationally recognized statistical
rating organization” (as defined for purposes of Rule 436(g)), or any public announcement
that any such organization has under surveillance or review its rating of any debt
securities of the Company other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such rating) or any
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announcement
that the Company has been placed on negative outlook; (iii) any change in U.S. or international financial, political or economic conditions or currency
exchange rates or exchange controls the effect of which is such as to make it, in the
judgment of the Representatives, impractical to market or to enforce contracts for the sale
of the Offered Securities, whether in the primary market or in respect of dealings in the
secondary market, (iv) any suspension or material limitation of trading in securities
generally on the New York Stock Exchange, or any setting of minimum or maximum prices for
trading on such exchange; (v) or any suspension of trading of any securities of the Company
on any exchange or in the over-the-counter market; (vi) any banking moratorium declared by
any U.S. federal or New York authorities; (vii) any major disruption of settlements of
securities, payment, or clearance services in the United States or any other country where
such securities are listed or (viii) any attack on, outbreak or escalation of hostilities
or act of terrorism involving the United States, any declaration of war by Congress or any
other national or international calamity or emergency if, in the judgment of the
Representatives, the effect of any such attack, outbreak, escalation, act, declaration,
calamity or emergency is such as to make it in the judgment of the Representatives
impractical or inadvisable to market the Offered Securities or to enforce contracts for the
sale of the Offered Securities.
(c) Opinion of Counsel for Company. The Representatives shall have received an
opinion, dated such Closing Date, of Xxxxxxxx & Xxxxxx LLP, counsel for the Company, with
respect to such matters as the Representatives may require.
(d) Opinion of General Counsel of the Company. The General Counsel of the Company
shall have furnished to the Representative her written opinion, as counsel to the Company,
dated the Closing Date with respect to such matters as the Representatives may require.
(e) Opinion of Counsel for Purchasers. The Purchasers shall have received from
Xxxxxx & Xxxxxx LLP, counsel for the Purchasers, such opinion or opinions, dated the
Closing Date with respect to such matters as the Representatives may require, and the
Company and the Guarantors shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters.
(f) Officers’ Certificate. The Purchasers shall have received certificates, dated
the Closing Date, of an executive officer of the Company and the Guarantors and a
principal financial or accounting officer of the Company and the Guarantors in which such
officers shall state that the representations and warranties of the Company and the
Guarantors in this Agreement are true and correct as of the Closing Date, that the Company
and the Guarantors have complied with all agreements and satisfied all conditions on their
part to be performed or satisfied hereunder at or prior to the Closing Date, and that,
subsequent to the date of the most recent financial statements in the General Disclosure
Package there has been no material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or otherwise), results of
operations, business, properties or prospects of the Company, the Guarantors and their
respective subsidiaries taken as a whole except as set forth in the General Disclosure
Package or as described in such certificate.
The Company and the Guarantors will furnish the Purchasers with such conformed copies of such
opinions, certificates, letters and documents as the Purchasers reasonably request. Credit Suisse
may in its sole discretion waive on behalf of the Purchasers compliance with any conditions to the
obligations of the Purchasers hereunder, whether in respect of an Optional Closing Date or
otherwise.
8. Indemnification and Contribution. (a) Indemnification of Purchasers. The Company and
the Guarantors will indemnify and hold harmless each Purchaser, its officers, employees, agents,
partners, members, directors and its affiliates and each person, if any, who controls such
Purchaser within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
(each, an “Indemnified Party”), against any and all losses, claims, damages or liabilities, joint
or several, to which such Indemnified Party may become subject, under the Securities Act, the
Exchange Act, other Federal or state statutory law or regulation or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are
-16-
based
upon any untrue statement or alleged untrue statement of any material fact contained in the Preliminary Offering Circular or the Final Offering Circular, in
each case as amended or supplemented, or any Issuer Free Writing Communication (including with
limitation, any Supplemental Marketing Material), or the Exchange Act Reports, or arise out of or
are based upon the omission or alleged omission of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading
and will reimburse each Indemnified Party for any legal or other expenses reasonably incurred by
such Indemnified Party in connection with investigating, preparing or defending against any loss,
claim, damage, liability, action, litigation, investigation or proceeding whatsoever (whether or
not such Indemnified Party is a party thereto) whether threatened or commenced and in connection
with the enforcement of this provision with respect to any of the above as such expenses are
incurred; provided, however, that the Company and the Guarantors 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 an
untrue statement or alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information furnished to the Company by
any Purchaser through the Representatives specifically for use therein, it being understood and
agreed that the only such information consists of the information described as such in
subsection (b) below.
(b) Indemnification of Company. Each Purchaser will severally and not jointly indemnify and
hold harmless each of the Company, the Guarantors, each of their respective directors and each of
their respective officers and each person, if any, who controls the Company or such Guarantor
within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a
“Purchaser Indemnified Party”), against any losses, claims, damages or liabilities to which such
Purchaser Indemnified Party may become subject, under the Securities Act, the Exchange Act, other
Federal or state statutory law or regulation 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 any material fact contained in the Preliminary Offering Circular or
the Final Offering Circular, in each case as amended or supplemented, or any Issuer Free Writing
Communication or arise out of or are based upon the omission or the alleged omission of
a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information furnished to the Company by
such Purchaser through the Representatives specifically for use therein, and will reimburse any
legal or other expenses reasonably incurred by such Purchaser Indemnified Party in connection with
investigating, preparing or defending against any such loss, claim, damage, liability, action,
litigation, investigation or proceeding whatsoever (whether or not such Purchaser Indemnified Party
is a party thereto) whether threatened or commenced based upon any such untrue statement or
omission, or any such alleged untrue statement or omission as such expenses are incurred, it being
understood and agreed that the only such information furnished by any Purchaser consists of the
following information in the Preliminary and Final Offering Circular: the third, twelfth and
thirteenth paragraphs under the caption “Plan of Distribution;” provided, however, that the
Purchasers shall not be liable for any losses, claims, damages or liabilities arising out of or
based upon the Company’s failure to perform its obligations under Section 5(a) of this Agreement.
(c) Actions against Parties; Notification. Promptly after receipt by an indemnified party
under this Section 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 subsection (a) or (b)
above, notify the indemnifying party of the commencement thereof; but the failure to notify the
indemnifying party shall not relieve it from any liability that it may have under subsection (a) or
(b) above except to the extent that it has been materially prejudiced (through the forfeiture of
substantive rights or defenses) by such failure; and provided further that the failure to notify
the indemnifying party shall not relieve it from any liability that it may have to an indemnified
party otherwise than under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense thereof, the indemnifying
party will not be liable to such
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indemnified party under this Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been sought hereunder by
such indemnified party unless such settlement includes (i) an unconditional release of such
indemnified party from all liability on any claims that are the subject matter of such action and
(ii) does not include a statement as to or an admission of fault, culpability or failure to act by
or on behalf of any indemnified party.
(d) Contribution. If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b) above, then each
indemnifying party shall contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to in subsection (a) or (b) above
(i) in such proportion as is appropriate to reflect the relative benefits received by the Company
on the one hand and the Purchasers on the other from the offering of the Offered Securities or
(ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Guarantors on the one hand and the
Purchasers on the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Guarantors on the one hand and the Purchasers on
the other shall be deemed to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Company bear to the total discounts and commissions
received by the Purchasers from the Company under this Agreement. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact relates to information
supplied by the Company and the Guarantors or the Purchasers and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such untrue statement or
omission. The amount paid by an indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this subsection (d).
Notwithstanding the provisions of this subsection (d), no Purchaser shall be required to contribute
any amount in excess of the amount by which the total price at which the Offered Securities
purchased by it were resold exceeds the amount of any damages which such Purchaser has otherwise
been required to pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. The Purchasers’ obligations in this subsection (d) to contribute are several in
proportion to their respective purchase obligations and not joint. The Company, the Guarantors
and the Purchasers agree that it would not be just and equitable if contribution pursuant to this
Section 8(d) were determined by pro rata allocation (even if the Purchasers were treated as one
entity for such purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in this Section 8(d).
9. Default of Purchasers. If any Purchaser or Purchasers default in their obligations to
purchase Offered Securities hereunder and the aggregate principal amount of Offered Securities that
such defaulting Purchaser or Purchasers agreed but failed to purchase does not exceed 10% of the
total principal amount of Offered Securities, Credit Suisse may make arrangements satisfactory to
the Company for the purchase of such Offered Securities by other persons, including any of the
Purchasers, but if no such arrangements are made by the Closing Date, the non-defaulting Purchasers
shall be obligated severally, in proportion to their respective commitments hereunder, to purchase
the Offered Securities that such defaulting Purchasers agreed but failed to purchase. If any
Purchaser or Purchasers so default and the aggregate principal amount of Offered Securities with
respect to which such default or defaults occur exceeds 10% of the total principal amount of
Offered Securities and arrangements satisfactory to Credit Suisse and the Company for the purchase
of such Offered Securities by other persons are not made within 36 hours after such default, this
Agreement will terminate without liability on the part of any non-defaulting Purchaser or the
Company, except as provided in Section 10. As used in this Agreement, the term “Purchaser” includes
any person substituted for a Purchaser under this Section. Nothing herein will relieve a defaulting
Purchaser from liability for its default.
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10. Survival of Certain Representations and Obligations. The respective indemnities,
agreements, representations, warranties and other statements of the Company, the Guarantors or
their respective officers and of the several Purchasers set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation, or statement as to
the results thereof, made by or on behalf of any Purchaser, the Company, the Guarantors or any of
their respective representatives, officers or directors or any controlling person, and will survive
delivery of and payment for the Offered Securities. If this Agreement is terminated pursuant to
Section 9 or if for any reason the purchase of the Offered Securities by the Purchasers is not
consummated, the Company and the Guarantors shall remain responsible for the expenses to be paid or
reimbursed by it pursuant to Section 5 and the respective obligations of the Company, the
Guarantors and the Purchasers pursuant to Section 8 shall remain in effect. If the purchase of the
Offered Securities by the Purchasers is not consummated for any reason other than solely because of
the termination of this Agreement pursuant to Section 9 or the occurrence of any event specified in
clause (iii), (iv), (vi), (vii) or (viii) of Section 7(b), the Company and the Guarantors will
reimburse the Purchasers for all out-of-pocket expenses (including fees and disbursements of
counsel) reasonably incurred by them in connection with the offering of the Offered Securities.
11. Notices. All communications hereunder will be in writing and, if sent to the Purchasers
will be mailed, delivered or telegraphed and confirmed to the Purchasers c/o Credit Suisse
Securities (USA) LLC, Eleven Madison Avenue, New York, N.Y. 10010-3629, Attention: LCD-IBD, or, if
sent to the Company or the Guarantors, will be mailed, delivered or telegraphed and confirmed to it
at Xxxxxxx Exploration Company, 0000 Xxxxxx Xxxxx Xxxxxxx, Xxxxxxxx 0, Xxxxx 000, Xxxxxx, Xxxxx
00000, Attention: Xxxx Xxxxxxx, General Counsel; provided, however, that any notice to a Purchaser
pursuant to Section 8 will be mailed, delivered or telegraphed and confirmed to such Purchaser.
12. Successors. This Agreement will inure to the benefit of and be binding upon the parties
hereto and their respective successors and the controlling persons referred to in Section 8, and no
other person will have any right or obligation hereunder, except that holders of Offered Securities
shall be entitled to enforce the agreements for their benefit contained in the second and third
sentences of Section 5(b) hereof against the Company as if such holders were parties thereto.
13. Representation of Purchasers. You will act for the several Purchasers in connection with
this purchase, and any action under this Agreement taken by you jointly or by Credit Suisse will be
binding upon all the Purchasers.
14. Counterparts. This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all such counterparts shall together constitute one
and the same Agreement.
15. Absence of Fiduciary Relationship. The Company and the Guarantors acknowledge and agree
that:
(a) No Other Relationship. The Representatives have been retained solely to act as initial
purchaser(s) in connection with the initial purchase, offering and resale of the Offered Securities
and that no fiduciary, advisory or agency relationship between the Company or the Guarantors and
the Representatives has been created in respect of any of the transactions contemplated by this
Agreement or the Preliminary or Final Offering Circular, irrespective of whether the
Representatives have advised or is advising the Company or the Guarantors on other matters;
(b) Arm’s-Length Negotiations. The purchase price of the Offered Securities set forth in
this Agreement was established by the Company and the Guarantors following discussions and
arms-length negotiations with the Representatives and the Company and the Guarantors are capable of
evaluating and understanding and understand and accept the terms, risks and conditions of the
transactions contemplated by this Agreement;
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(c) Absence of Obligation to Disclose. The Company has and the Guarantors have been advised
that the Representatives and their affiliates are engaged in a broad range of transactions which
may involve interests that differ from those of the Company or the Guarantors and that the
Representatives have no obligation to disclose such interests and transactions to Company or the
Guarantors by virtue of any fiduciary, advisory or agency relationship; and
(d) Waiver. The Company and the Guarantors waive, to the fullest extent permitted by law,
any claims it may have against the Representatives for breach of fiduciary duty or alleged breach
of fiduciary duty and agree that the Representatives shall have no liability (whether direct or
indirect) to the Company or the Guarantors in respect of such a fiduciary duty claim or to any
person asserting a fiduciary duty claim on behalf of or in right of the Company, including
stockholders, employees or creditors of the Company or the Guarantors.
16. Applicable Law. This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York.
The Company and the Guarantors hereby submit to the non-exclusive jurisdiction of the Federal
and state courts in the Borough of Manhattan in The City of New York in any suit or proceeding
arising out of or relating to this Agreement or the transactions contemplated hereby. The Company
and the Guarantors irrevocably and unconditionally waive any objection to the laying of venue of
any suit or proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby in Federal and state courts in the Borough of Manhattan in The City of New York
and irrevocably and unconditionally waive and agree not to plead or claim in any such court that
any such suit or proceeding in any such court has been brought in an inconvenient forum.
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If the foregoing is in accordance with the Purchasers’ understanding of our agreement, kindly
sign and return to us one of the counterparts hereof, whereupon it will become a binding agreement
between the Company, the Guarantors and the several Purchasers in accordance with its terms.
| Very truly yours, Xxxxxxx Exploration Company |
||||
| By: | /s/ Xxxxxx X. Xxxxxxxx, Xx. | |||
| Name: | Xxxxxx X. Xxxxxxxx, Xx. | |||
| Title: | Executive Vice President
and Chief Financial Officer |
|||
| Xxxxxxx, Inc. |
||||
| By: | /s/ Xxxxxx X. Xxxxxxxx, Xx. | |||
| Name: | Xxxxxx X. Xxxxxxxx, Xx. | |||
| Title: | Executive Vice President
and Chief Financial Officer |
|||
| Xxxxxxx Oil & Gas, L.P. |
||||
| By: | Xxxxxxx, Inc., its general partner | |||
| By: | /s/ Xxxxxx X. Xxxxxxxx, Xx. | |||
| Name: | Xxxxxx X. Xxxxxxxx, Xx. | |||
| Title: | Executive Vice President
and Chief Financial Officer |
|||
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The foregoing Purchase Agreement
is hereby confirmed and accepted
as of the date first above written.
is hereby confirmed and accepted
as of the date first above written.
Acting on behalf of themselves
and as the Representatives of
the several Purchasers
and as the Representatives of
the several Purchasers
By Credit Suisse Securities (USA) LLC
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | Managing Director | |||
By Banc of America Securities LLC
| By: | /s/ Xxxx Xxxx | |||
| Name: | Xxxx Xxxx | |||
| Title: | Managing Director | |||
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SCHEDULE A
| Principal Amount | ||||
| of | ||||
| Manager | Offered Securities | |||
Credit Suisse Securities (USA) LLC |
$ | 108,571,428.58 | ||
Banc of America Securities LLC |
$ | 108,571,428.58 | ||
BNP Paribas Securities Corp. |
$ | 20,000,000.00 | ||
Capital One Southcoast, Inc. |
$ | 17,142,857.14 | ||
Natixis Bleichroeder LLC |
$ | 17,142,857.14 | ||
RBS Securities Inc. |
$ | 17,142,857.14 | ||
Tudor, Pickering, Xxxx & Co. Securities, Inc. |
$ | 5,714,285.71 | ||
RBC Capital Markets Corporation |
$ | 5,714,285.71 | ||
Total |
$ | 300,000,000.00 | ||
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SCHEDULE B
Issuer Free Writing Communications (included in the General Disclosure Package)
1. Final term sheet, dated September 16, 2010, a copy of which is attached hereto as
Exhibit B-1.
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Exhibit B-1
BRIGHAM EXPLORATION COMPANY LOGO)"/>
Pricing Supplement dated September 16, 2010 to the Preliminary Offering Circular dated September
13, 2010 of Xxxxxxx Exploration Company. This Pricing Supplement is qualified in its entirety by
reference to the Preliminary Offering Circular. The information in this Pricing Supplement
supplements the Preliminary Offering Circular and supersedes the information in the Preliminary
Offering Circular to the extent it is inconsistent with the information in the Preliminary Offering
Circular. Capitalized terms used in this Pricing Supplement but not defined have the meanings
given them in the Preliminary Offering Circular.
Pricing Term Sheet
Issuer:
|
Xxxxxxx Exploration Company | |
Guarantors:
|
The notes will be guaranteed on a senior unsecured basis by the Issuer’s existing and future subsidiaries, subject to certain exceptions. | |
Security Description:
|
8.750% Senior Notes due 2018 | |
Face:
|
$300 million | |
Maturity:
|
October 1, 2018 | |
Coupon:
|
8.750% | |
Offering Price:
|
100% | |
Yield to Maturity:
|
8.750% | |
Spread to Benchmark Treasury:
|
644 basis points | |
Benchmark:
|
UST 4.000% due August 15, 2018 | |
Interest Payment Dates:
|
October 1 and April 1 of each year | |
Commencing:
|
April 1, 2011 | |
Gross Proceeds:
|
$300,000,000 | |
Equity Clawback
|
Up to 35% at 108.750% prior to October 1, 2013 | |
Optional Redemption:
|
On or after October 1, 2014, at the following redemption prices (expressed as a percentage of principal amount), plus accrued and unpaid interest, if any, on the Notes redeemed during the twelve-month period indicated beginning on October 1st of the years indicated below: |
| Year | Price | |||
2014 |
104.375 | % | ||
2015 |
102.1875 | % | ||
2016 and thereafter |
100.000 | % | ||
Make-Whole:
|
Make-whole redemption at Treasury Rate + 50 bps prior to October 1, 2014 | |
Change of Control:
|
Put at 101% of principal plus accrued interest | |
Trade Date:
|
September 16, 2010 | |
Settlement Date:
|
September 27, 2010 | |
CUSIP:
|
Rule 144A: 000000XX0 | |
| Regulation S: X0000XXX0 |
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ISIN:
|
Rule 144A: US109178AD59 | |
| Regulation S: USU6224KAC37 | ||
Increments:
|
Minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof | |
Joint Book-Running Manager:
|
Credit Suisse Securities (USA) LLC | |
| Banc of America Securities LLC | ||
Co-Managers:
|
Capital One Southcoast, Inc. | |
| RBS Securities Inc. | ||
| BNP Paribas Securities Corp. | ||
| Natixis Bleichroeder LLC | ||
| RBC Capital Markets Corporation | ||
| Tudor, Pickering, Xxxx & Co. Securities, Inc. |
Additional Information
Settlement
We expect that delivery of the notes will be made against payment therefor on or about the
settlement date specified in this Pricing Supplement, which will be the 7th business day following
the date of pricing of the notes (this settlement cycle being referred to as “T+ 7”). Under
Rule 15c6-1 of the U.S. Securities and Exchange Commission under the Exchange Act, trades in the
secondary market generally are required to settle in three business days, unless the parties to
that trade expressly agree otherwise. Accordingly, purchasers who wish to trade notes on the date
of pricing or the succeeding three business days will be required, by virtue of the fact that the
notes initially will settle in T+ 7, to specify an alternate settlement cycle at the time of any
such trade to prevent a failed settlement and should consult their own advisor.
This material is strictly confidential and has been prepared by the Issuer solely for use in
connection with the proposed offering of the securities described in the Preliminary Offering
Circular. This material is personal to each offeree and does not constitute an offer to any other
person or the public generally to subscribe for or otherwise acquire the securities. Please refer
to the Preliminary Offering Circular for a complete description.
The securities have not been registered under the Securities Act of 1933, as amended (the
“Securities Act”), and are being offered only to (1) “qualified institutional buyers” as defined in
Rule 144A under the Securities Act and (2) outside the United States to non-U.S. persons in
compliance with Regulation S under the Securities Act, and this communication is only being
distributed to such persons.
This communication is not an offer to sell the securities and it is not a solicitation of an offer
to buy the securities in any jurisdiction to any person to whom it is unlawful to make such offer
or soliciation in such jurisdiction.
Any disclaimer or other notice that may appear below is not applicable to this communication and
should be disregarded. Such disclaimer or notice was automatically generated as a result of this
communication being sent by Bloomberg or another email system.
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