Alpha Natural Resources, Inc. 3,636,363 Shares Common Stock ($0.01 par value per Share) Underwriting Agreement
Exhibit 1.2
3,636,363 Shares
Common Stock
($0.01 par value per Share)
($0.01 par value per Share)
April 1, 2008
April 1, 2008
UBS Securities LLC
Citigroup Global Markets Inc.
as Managing Underwriters
c/o UBS Securities LLC
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Citigroup Global Markets Inc.
as Managing Underwriters
c/o UBS Securities LLC
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Ladies and Gentlemen:
Alpha Natural Resources, Inc., a Delaware corporation (the “Company”), proposes to
issue and sell to the underwriters named in Schedule A annexed hereto (the
“Underwriters”), for whom you are acting as representatives, an aggregate of 3,636,363
shares (the “Firm Shares”) of common stock, $0.01 par value per share (the “Common
Stock”), of the Company. In addition, solely for the purpose of covering over-allotments, the
Company proposes to grant to the Underwriters the option to purchase from the Company up to an
additional 545,454 shares of Common Stock (the “Additional Shares”). The Firm Shares and
the Additional Shares are hereinafter collectively sometimes referred to as the “Shares.”
The Shares are described in the Prospectus which is referred to below.
The Company has prepared and filed, in accordance with the provisions of the Securities Act of
1933, as amended, and the rules and regulations thereunder (collectively, the “Act”), with
the Securities and Exchange Commission (the “Commission”) a registration statement on Form
S-3 (File No. 333-134081) under the Act (the “registration statement”), including a
prospectus, which registration statement incorporates by reference documents which the Company has
filed, or will file, in accordance with the provisions of the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder (collectively, the “Exchange Act”).
Amendments to such registration statement, if necessary or appropriate, have been similarly
prepared and filed with the Commission in accordance with the Act. Such registration statement, as
so amended, has become effective under the Act.
Except where the context otherwise requires, “Registration Statement,” as used herein,
means the registration statement, as amended at the time of such registration statement’s
effectiveness for purposes of Section 11 of the Act, as such section applies to the respective
Underwriters (the “Effective Time”), including (i) all documents filed as a part thereof or
incorporated or deemed to be incorporated by reference therein, (ii) any information contained or
incorporated by reference in a prospectus filed with the Commission pursuant to Rule 424(b) under
the Act, to the extent such information is deemed, pursuant to Rule 430A, Rule 430B or Rule 430C
under the Act, to be part of the registration statement at the Effective Time, and (iii) any
registration statement filed to register the offer and sale of Shares pursuant to Rule 462(b) under
the Act.
The Company has furnished to you, for use by the Underwriters and by dealers in connection
with the offering of the Shares, copies of one or more preliminary prospectus
supplements, and the documents incorporated by reference therein, relating to the Shares. Except
where the context otherwise requires, “Pre-Pricing Prospectus,” as used herein, means each
such preliminary prospectus supplement, in the form so furnished, including any basic prospectus
(whether or not in preliminary form) furnished to you by the Company and attached to or used with
such preliminary prospectus supplement. Except where the context otherwise requires, “Basic
Prospectus,” as used herein, means any such basic prospectus and any basic prospectus furnished
to you by the Company and attached to or used with the Prospectus Supplement (as defined below).
Except where the context otherwise requires, “Prospectus Supplement,” as used herein,
means the final prospectus supplement, relating to the Shares, filed by the Company with the
Commission pursuant to Rule 424(b) under the Act on or before the second business day after the
date hereof (or such earlier time as may be required under the Act), in the form furnished by the
Company to you for use by the Underwriters and by dealers in connection with the offering of the
Shares.
Except where the context otherwise requires, “Prospectus,” as used herein, means the
Prospectus Supplement together with the Basic Prospectus attached to or used with the Prospectus
Supplement.
“Permitted Free Writing Prospectuses,” as used herein, means the documents listed on
Schedule B attached hereto. The Underwriters have not offered or sold and will not offer
or sell, without the Company’s consent, any Shares by means of any “free writing prospectus” (as
defined in Rule 405 under the Act) that is required to be filed by the Underwriters with the
Commission pursuant to Rule 433 under the Act, other than a Permitted Free Writing Prospectus.
“Disclosure Package,” as used herein, means the Basic Prospectus, any Pre-Pricing
Prospectus, in either case together with the Permitted Free Writing Prospectuses, if any, taken
together as a whole.
Any reference herein to the registration statement, the Registration Statement, any Basic
Prospectus, any Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus or any Permitted
Free Writing Prospectus shall be deemed to refer to and include the documents, if any, incorporated
by reference, or deemed to be incorporated by reference, therein (the “Incorporated
Documents”), including, unless the context otherwise requires, the documents, if any, filed as
exhibits to such Incorporated Documents. Any reference herein to the terms “amend,”
“amendment” or “supplement” with respect to the Registration Statement, any Basic
Prospectus, any Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus or any Permitted
Free Writing Prospectus shall be deemed to refer to and include the filing of any document under
the Exchange Act on or after the initial effective date of the Registration Statement, or the date
of such Basic Prospectus, such Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus or
such Permitted Free Writing Prospectus, as the case may be, and deemed to be incorporated therein
by reference.
As used in this agreement (the “Agreement”), “business day” shall mean a day
on
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which the New York Stock Exchange (the “NYSE”) is open for trading. The terms “herein,”
“hereof,” “hereto,” “hereinafter” and similar terms, as used in this Agreement, shall in each case
refer to this Agreement as a whole and not to any particular section, paragraph, sentence or other
subdivision of this Agreement. The term “or,” as used herein, is not exclusive.
The Company and the Underwriters agree as follows:
1. Sale and Purchase. Upon the basis of the representations and warranties and
subject to the terms and conditions herein set forth, the Company agrees to issue and sell to the
respective Underwriters and each of the Underwriters, severally and not jointly, agrees to purchase
from the Company the number of Firm Shares set forth opposite the name of such Underwriter in
Schedule A attached hereto, subject to adjustment in accordance with Section 8 hereof, in
each case at a purchase price of $39.50 per Share. The Company is advised by you that the
Underwriters intend (i) to make a public offering of their respective portions of the Firm Shares
as soon after the effectiveness of this Agreement as in your judgment is advisable and (ii)
initially to offer the Firm Shares upon the terms set forth in the Prospectus. You may from time
to time increase or decrease the public offering price after the initial public offering to such
extent as you may determine.
In addition, the Company hereby grants to the several Underwriters the option (the
“Over-Allotment Option”) to purchase, and upon the basis of the representations and
warranties and subject to the terms and conditions herein set forth, the Underwriters shall have
the right to purchase, severally and not jointly, from the Company, ratably in accordance with the
number of Firm Shares to be purchased by each of them, all or a portion of the Additional Shares as
may be necessary to cover over-allotments made in connection with the offering of the Firm Shares,
at the same purchase price per share to be paid by the Underwriters to the Company for the Firm
Shares. The Over-Allotment Option may be exercised by UBS Securities LLC and Citigroup Global
Markets Inc. (the “Representatives”) on behalf of the several Underwriters at any time and
from time to time on or before the thirtieth day following the date of the Prospectus Supplement,
by written notice to the Company. Such notice shall set forth the aggregate number of Additional
Shares as to which the Over-Allotment Option is being exercised and the date and time when the
Additional Shares are to be delivered (any such date and time being herein referred to as an
“additional time of purchase”); provided, however, that no additional time
of purchase shall be earlier than the “time of purchase” (as defined below) nor earlier than the
second business day after the date on which the Over-Allotment Option shall have been exercised nor
later than the tenth business day after the date on which the Over-Allotment Option shall have been
exercised. The number of Additional Shares to be sold to each Underwriter shall be the number
which bears the same proportion to the aggregate number of Additional Shares being purchased as the
number of Firm Shares set forth opposite the name of such Underwriter on Schedule A hereto
bears to the total number of Firm Shares (subject, in each case, to such adjustment as the
Representatives may determine to eliminate fractional shares), subject to adjustment in accordance
with Section 8 hereof.
2. Payment and Delivery. Payment of the purchase price for the Firm Shares shall be
made to the Company by Federal Funds wire transfer against delivery of the certificates for the
Firm Shares to you through the facilities of The Depository Trust Company (“DTC”) for the
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respective accounts of the Underwriters. Such payment and delivery shall be made at 10:00
A.M., New York City time, on April 7, 2008 (unless another time shall be agreed to by you and the
Company or unless postponed in accordance with the provisions of Section 8 hereof). The time at
which such payment and delivery are to be made is hereinafter sometimes called the “time of
purchase.” Electronic transfer of the Firm Shares shall be made to you at the time of purchase
in such names and in such denominations as you shall specify.
Payment of the purchase price for the Additional Shares shall be made at the additional time
of purchase in the same manner and at the same office as the payment for the Firm Shares.
Electronic transfer of the Additional Shares shall be made to you at the additional time of
purchase in such names and in such denominations as you shall specify.
Deliveries of the documents described in Section 6 hereof with respect to the purchase of the
Shares shall be made at the offices of Xxxxx Xxxx & Xxxxxxxx at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, at 9:00 A.M., New York City time, on the date of the closing of the purchase of the
Firm Shares or the Additional Shares, as the case may be.
3. Representations and Warranties of the Company. The Company represents and warrants
to and agrees with each of the Underwriters that:
(a) the Registration Statement has heretofore become effective under the Act; no stop
order of the Commission preventing or suspending the effectiveness of the Registration
Statement, has been issued, and no proceedings for such purpose have been instituted or, to
the Company’s knowledge, are contemplated by the Commission;
(b) the Registration Statement complied when it became effective, complies as of the
date hereof and, as amended or supplemented, will comply at the time of purchase and each
additional time of purchase, if any, in all material respects, with the requirements of the
Act; the conditions to the use of Form S-3 in connection with the offering and sale of the
Shares as contemplated hereby have been satisfied; the Registration Statement constitutes an
“automatic shelf registration statement” (as defined in Rule 405 under the Act); the Company
has not received, from the Commission, a notice, pursuant to Rule 401(g)(2), of objection to
the use of the automatic shelf registration statement form; as of the determination date
applicable to the Registration Statement (and any amendment thereof) and the offering
contemplated hereby, the Company is a “well-known seasoned issuer” as defined in Rule 405
under the Act; as of the date hereof, the Registration Statement meets, and the offering and
sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under
the Act (including, without limitation, Rule 415(a)(5) under the Act); the Registration
Statement did not, as of the Effective Time, contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to make the
statements therein not misleading; each Pre-Pricing Prospectus complied, at the time it was
filed with the Commission, and complies as of the date hereof, in all material respects with
the requirements of the Act; each Basic Prospectus complied or will comply, as of its date
and the date it was or will be filed with the Commission, complies as of the date
hereof (if filed with the Commission on or prior to the date hereof) and, at the time of
purchase
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and each additional time of purchase, if any, will comply, in all material
respects, with the requirements of the Act; each of the Prospectus Supplement and the
Prospectus will comply, as of the date that it is filed with the Commission, the date of the
Prospectus Supplement, the time of purchase and each additional time of purchase, if any, in
all material respects, with the requirements of the Act (in the case of the Prospectus,
including, without limitation, Section 10(a) of the Act); as of the date hereof, the
Disclosure Package did not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; as of the date of any Prospectus
Supplement, the time of purchase and any additional time of purchase, if any, the
Prospectus, as then amended or supplemented, taken together with any Permitted Free Writing
Prospectuses, will not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; each Incorporated Document, at the
time such document was filed with the Commission or at the time such document became
effective, as applicable, complied, in all material respects, with the requirements of the
Exchange Act and did not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however, that the
Company makes no representation or warranty in this Section 3 (b) with respect to any
statement contained in the Registration Statement, any Pre-Pricing Prospectus, the
Prospectus or any Permitted Free Writing Prospectus in reliance upon and in conformity with
information concerning an Underwriter and furnished in writing by or on behalf of such
Underwriter through you to the Company expressly for use in the Registration Statement, such
Pre-Pricing Prospectus, the Prospectus or such Permitted Free Writing Prospectus.
(c) prior to the execution of this Agreement, the Company has not, directly or
indirectly, offered or sold any Shares by means of any “prospectus” (within the meaning of
the Act) or used any “prospectus” (within the meaning of the Act) in connection with the
offer or sale of the Shares, in each case other than the Pre-Pricing Prospectuses and the
Permitted Free Writing Prospectuses, if any; the Company has not prepared, used or referred
to any Permitted Free Writing Prospectus except in compliance with Rule 163 or with Rules
164 and 433 under the Act; the conditions set forth in one or more of subclauses (i) through
(iv), inclusive, of Rule 433(b)(1) under the Act are satisfied; neither the Company nor the
Underwriters are disqualified, by reason of subsection (f) or (g) of Rule 164 under the Act,
from using, in connection with the offer and sale of the Shares, “free writing prospectuses”
(as defined in Rule 405 under the Act) pursuant to Rules 164 and 433 under the Act; the
Company is not an “ineligible issuer” (as defined in Rule 405 under the Act) as of the
eligibility determination date for purposes of Rules 164 and 433 under the Act with respect
to the offering of the Shares contemplated by the Registration Statement; the parties hereto
agree and understand that the content of any and all “road shows” (as defined in Rule 433
under the Act) related to the offering of the Shares contemplated hereby is solely the
property of the Company;
(d) the Company has been duly incorporated and is an existing corporation in
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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 Registration
Statement, the Disclosure Package and the Prospectus; 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 (i) where the failure to be so qualified or be in good standing would
not reasonably be expected, individually or in the aggregate, to have a material adverse
effect on the condition (financial or other), business, prospects, properties or results of
operations of the Company and the Subsidiaries (as defined below) taken as a whole (a
“Material Adverse Effect”) and (ii) for jurisdictions not recognizing the legal
concepts of good standing or qualification;
(e) the entities listed on Schedule C hereto are the only subsidiaries, direct
or indirect, of the Company (collectively, the “Subsidiaries”). Each of the
Company’s significant subsidiaries, as such term is defined in Rule 1-02 of Regulation S-X
under the Act (each a “Significant Subsidiary”) has been duly incorporated or formed
and is an existing limited liability company, corporation or limited partnership, as
applicable, in good standing under the laws of the jurisdiction of its incorporation or
formation, as applicable, with power and authority to own its properties and conduct its
business as described in the Registration Statement, the Disclosure Package and the
Prospectus; and each of the Significant Subsidiaries is duly qualified to do business as a
foreign limited liability company, corporation or limited partnership, as applicable, 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 (i) where the failure to be so
qualified or be in good standing would not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect, and (ii) for jurisdictions not recognizing the
legal concepts of good standing or qualification. All of the limited liability company
membership interests, outstanding shares of capital stock (“Subsidiary Shares”) and
limited partnership interests (collectively, the “Subsidiary Equity Interests”) of
each of the Significant Subsidiaries have been duly authorized and, to the extent
certificated, have been validly issued, and all Subsidiary Shares are fully paid and
non-assessable. Except as would not reasonably be expected to result in a Material Adverse
Effect, and except as disclosed in the Registration Statement, the Disclosure Package and
the Prospectus, the Subsidiary Equity Interests are owned by the Company, directly or
through subsidiaries, free from all liens, encumbrances and security interests, other than
liens, encumbrances and security interests imposed in favor of the lenders under (i) the
senior secured credit facility of Alpha Natural Resources, LLC, as borrower, and Alpha NR
Holding, Inc., as parent guarantor, and (ii) the non-recourse senior secured loan facility
of Gallatin Materials LLC, as borrower, each as described in the Disclosure Package and the
Prospectus or permitted thereunder;
(f) the Shares have been duly authorized and, when issued and delivered in accordance
with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and
the issuance of such Shares will not be subject to any preemptive or
similar rights;
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(g) the shares of Common Stock outstanding prior to the issuance of the Shares have
been duly authorized and are validly issued, fully paid and non-assessable;
(h) the authorized capital stock of the Company conforms as to legal matters to the
description thereof contained in the Registration Statement, the Disclosure Package and the
Prospectus;
(i) this Agreement has been duly authorized, executed and delivered by the Company;
(j) neither the Company nor any of the Subsidiaries is (i) in violation of its
respective certificate of incorporation, certificate of limited partnership or certificate
of formation, as applicable, or by-laws, limited liability company agreement or limited
partnership agreement, as applicable, or (ii) in default in the performance of any
obligation, agreement, covenant or condition contained in any indenture, loan agreement,
mortgage, lease or other agreement or instrument that is material to the Company and the
Subsidiaries, taken as a whole, to which the Company or the Subsidiaries is a party or by
which the Company or the Subsidiaries or their respective property is bound, except with
respect to clause (ii) only, to the extent that such default would not reasonably be
expected to have a Material Adverse Effect;
(k) the issuance and sale of the Shares and the execution, delivery and performance of
this Agreement and compliance with the terms and provisions hereof will not result in a
breach or violation of any of the terms and provisions of, or constitute a default under,
(i) any applicable statute or any applicable rule, regulation or order of any governmental
agency or body, or any court, domestic or foreign, having jurisdiction over the Company or
any of its Subsidiaries or any of their properties, (ii) any agreement or instrument to
which the Company or any of the Subsidiaries is a party or by which the Company or any of
the Subsidiaries is bound or to which any of the properties of the Company or any of the
Subsidiaries is subject, (iii) any applicable rule or applicable regulation of any
self-regulatory organization or other non-governmental regulatory authority (including,
without limitation, the rules and regulations of the NYSE), (iv) any decree, judgment or
order applicable to the Company or any of the Subsidiaries or any of their respective
properties, (v) the Restated Certificate of Incorporation and Amended and Restated Bylaws of
the Company or the certificate of incorporation or certificate of formation, as applicable,
or by-laws or limited liability company agreement or limited partnership agreement, as
applicable, of any such Subsidiary, except, in the case of clauses (i), (ii), (iii) and (iv)
for such breaches, violations or defaults as would not, individually or in the aggregate,
have a Material Adverse Effect on the consummation of the transactions contemplated hereby
by such parties. The Company has full power and authority to authorize, issue and sell the
Shares as contemplated by this Agreement.
(l) no consent, approval, authorization, license, or order of, or filing with, any
governmental agency or body or any court or any regulatory authority, or approval of the
stockholders of the Company, is required for the consummation of the transactions
contemplated by this Agreement in connection with the issuance and sale of the Shares
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except for (i) the registration of the Shares under the Act and under the Exchange Act, approval
for listing of the Shares on the NYSE and such consents, approvals, authorizations, orders,
or filings as may be required to be obtained or made under state securities or “blue sky”
laws or by the rules and regulations of the Financial Industry Regulatory Authority, Inc.,
formerly the National Association of Securities Dealers, Inc., in connection with the
purchase and sale of the Shares by the Underwriters and (ii) such consents, approvals,
authorizations, licenses, orders, or filings which have been previously obtained or made or
as to which the failure to so obtain or make would not reasonably be expected, individually
or in the aggregate, to have a Material Adverse Effect on the consummation by the Company of
the transactions contemplated by this Agreement;
(m) except as disclosed in the Registration Statement, the Disclosure Package and the
Prospectus, there are no contracts, agreements or understandings between the Company or any
of the Subsidiaries and any person that would give rise to a valid claim against the
Company, any of the Subsidiaries or any Underwriter for a brokerage commission, finder’s fee
or other like payment in connection with the execution and delivery of this Agreement and
the issuance and sale of the Shares;
(n) except as disclosed in the Registration Statement (excluding the exhibits thereto),
the Disclosure Package and the Prospectus, there are no contracts, agreements or
understandings between the Company and any person granting such person the right to require
the Company to file a registration statement under the Act with respect to any securities of
the Company or to require the Company to include such securities with the Shares registered
pursuant to the Registration Statement;
(o) except as disclosed in the Registration Statement, the Disclosure Package and the
Prospectus, the Company and the Subsidiaries possess adequate certificates, authorities or
permits issued by appropriate governmental agencies or bodies necessary to conduct the
business now operated by them, except for those which the failure to so possess would not
reasonably be expected to have a Material Adverse Effect, and have not received any notice
of proceedings relating to the revocation or modification of any such certificate, authority
or permit that, if determined adversely to the Company or any of the Subsidiaries, would,
individually or in the aggregate, have a Material Adverse Effect;
(p) except as disclosed in the Registration Statement, the Disclosure Package and the
Prospectus, there are no pending actions, suits or proceedings against or involving the
Company, any of the Subsidiaries or any of their respective properties that would reasonably
be expected, individually or in the aggregate, to have a Material Adverse Effect, or to
materially and adversely affect the ability of the Company to perform its obligations under
this Agreement, or which are otherwise material in the context of the sale of the Shares;
and no such actions, suits or proceedings are threatened in writing or, to the Company’s
knowledge, contemplated;
(q) KPMG LLP, who have audited certain financial statements included in the
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Prospectus, whose reports appear in the Prospectus and who have delivered the initial letter referred to
in Section 6(c) hereof, are independent public accountants as contemplated by the Act;
(r) the financial statements, together with the related schedules and notes, included
in the Registration Statement, the Disclosure Package and the Prospectus, present fairly in
all material respects the consolidated financial position of the Company and the
Subsidiaries as of the dates shown and their consolidated results of operations and cash
flows for the periods shown, and, except as otherwise disclosed in the Prospectus, such
financial statements have been prepared in conformity with generally accepted accounting
principles in the United States applied on a consistent basis throughout the periods
involved;
(s) there has not occurred any material adverse change, or any development involving a
prospective material adverse change, in the condition, financial or otherwise, or in the
earnings, business or operations of the Company and the Significant Subsidiaries, taken as a
whole, subsequent to the respective dates as of which information is given in the
Registration Statement, the Disclosure Package and the Prospectus;
(t) the Company is not, and after giving effect to the offering and sale of the Shares
and the application of the proceeds thereof as described in the Registration Statement, the
Disclosure Package and the Prospectus will not be, required to register as an “investment
company” as such term is defined in the Investment Company Act of 1940, as amended;
(u) except as disclosed in the Registration Statement, the Disclosure Package and the
Prospectus, the Company and the Significant Subsidiaries have good and marketable title to
all real properties and all other properties and assets owned by them that are material to
the Company and the Significant Subsidiaries taken as a whole, in each case free from liens,
encumbrances and defects that would materially affect the value thereof or materially
interfere with the use made or to be made thereof by them; and except as disclosed in the
Registration Statement, the Disclosure Package and the Prospectus, the Company and the
Significant Subsidiaries hold any leased real or personal property that is material to the
Company and the Significant Subsidiaries taken as a whole under valid and enforceable leases
with no exceptions that would materially interfere with the use made or to be made thereof
by them; provided, that the Company and the Significant Subsidiaries shall not be deemed to
hold a less than fully marketable leasehold interest solely because the consent of the
lessor to future assignments has not been obtained;
(v) the Company and the Subsidiaries own, possess, have the right to use, 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, except for such failures to so own, possess or have the right to
use or acquire such intellectual property rights which would not reasonably be expected,
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individually or in the aggregate, to have a Material Adverse Effect, 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 any of the
Subsidiaries, would reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect;
(w) except as disclosed in the Registration Statement, the Disclosure Package and the
Prospectus, no labor dispute with the employees of the Company or any of the Subsidiaries
(except for routine disciplinary and grievance matters) exists or, to the knowledge of the
Company, is imminent that would reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect;
(x) except as disclosed in the Registration Statement, the Disclosure Package and the
Prospectus, neither the Company nor any of the Subsidiaries 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 that, to the knowledge of the Company, is contaminated with any
substance that is subject to any environmental laws, is, to the knowledge of the Company,
liable for any off-site disposal or contamination pursuant to any environmental laws, or is,
to the knowledge of the Company, subject to any claim relating to any environmental laws,
which violation, contamination, liability or claim would reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect; and the Company is not
aware of any pending investigation which might lead to such a claim;
(y) the Company and the Significant Subsidiaries are insured by insurers of recognized
financial responsibility against such losses and risks and in such amounts as are prudent
and customary in the businesses in which they are engaged or as required by law;
(z) the Company and each of the Significant Subsidiaries maintains a system of internal
accounting controls sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management’s general or specific authorizations, (ii)
transactions are recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain asset
accountability, (iii) access to assets is permitted only in accordance with management’s
general or specific authorization, and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action is taken
with respect to any differences;
(aa) the Company and the Significant Subsidiaries maintain disclosure controls and
procedures (as defined as Rule 13a-15 of the Exchange Act) designed to ensure that
information required to be disclosed by the Company, including its consolidated
subsidiaries, in the reports that it files or submits under the Exchange Act is
recorded, processed, summarized and reported in accordance with the Exchange Act and the rules
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and regulations thereunder. The Company has carried out evaluations, under the
supervision and with the participation of the Company’s management, of the effectiveness of
the design and operation of the Company’s disclosure controls and procedures in accordance
with Rule 13a-15 of the Exchange Act;
(bb) neither the Company nor any of the Subsidiaries nor, to the knowledge of the
Company, any director, officer, agent, employee or affiliate of the Company or any of the
Subsidiaries is aware of or has taken any action, directly or indirectly, that would result
in a violation by such Persons of the Foreign Corrupt Practices Act of 1977, as amended, and
the rules and regulations thereunder (the “FCPA”), including, without limitation,
making use of the mails or any means or instrumentality of interstate commerce corruptly in
furtherance of an offer, payment, promise to pay or authorization of the payment of any
money, or other property, gift, promise to give, or authorization of the giving of anything
of value to any “foreign official” (as such term is defined in the FCPA) or any foreign
political party or official thereof or any candidate for foreign political office, in
contravention of the FCPA and the Company, the Subsidiaries and, to the knowledge of the
Company, its affiliates have conducted their businesses in compliance with the FCPA and have
instituted and maintain policies and procedures designed to ensure, and which are reasonably
expected to continue to ensure, continued compliance therewith, except for any such
violation of the FCPA or failure to comply with the FCPA or to institute and maintain such
policies and procedures that would not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect;
(cc) neither the Company nor any of the Subsidiaries nor, to the knowledge of the
Company, any director, officer, agent, employee or affiliate of the Company or any of the
Subsidiaries is currently subject to any U.S. sanctions administered by the Office of
Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company
will not directly or indirectly use the proceeds of the offering of the Shares contemplated
hereby, or lend, contribute or otherwise make available such proceeds to any Subsidiary,
joint venture partner or other person or entity for the purpose of financing the activities
of any person currently subject to any U.S. sanctions administered by OFAC;
(dd) each pension plan and welfare plan established or maintained by the Company and/or
one or more of the Subsidiaries is in compliance with the currently applicable provisions of
the Employee Retirement Income Security Act of 1974, as amended, and the regulations and
published interpretations thereunder (“ERISA”), except where noncompliance would not
reasonably be expected to have a Material Adverse Effect; and neither the Company nor any of
the Subsidiaries has incurred or could reasonably be expected to incur any withdrawal
liability under Section 4201 of ERISA, any liability under Section 4062, 4063 or 4064 of
ERISA or any other liability under Title IV of ERISA that would reasonably be expected to
have a Material Adverse Effect;
(ee) the statements set forth in the Registration Statement, the Disclosure
Package and the Prospectus, under the caption “Description of Common Stock,” in so far
as they purport to constitute a summary of the terms of the Common Stock, under the
- 11 -
captions “Description of Debt Securities” and “Concurrent Notes Offering,” in so far as they purport
to constitute a summary of the terms of the Company’s material indebtedness, and under the
captions “Description of Debt Securities” and “Material U.S. Federal Income Tax
Consequences,” in so far as they purport to describe the provisions of laws and documents
referred to therein, are accurate, complete and fair in all material respects; and
In addition, any certificate signed by any officer of the Company or any of the Subsidiaries
and delivered to the Underwriters or counsel for the Underwriters in connection with the offering
of the Shares shall be deemed to be a representation and warranty by the Company, as to matters
covered thereby, to each Underwriter.
4. Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise to cooperate in
qualifying the Shares for offering and sale under the securities or blue sky laws of such
states or other jurisdictions as you may reasonably designate and to maintain such
qualifications in effect so long as you may reasonably request for the distribution of the
Shares; provided, however, that the Company shall not be required to qualify
as a foreign corporation, to take any action that would subject it to the service of process
or to subject itself to taxation in excess of a normal amount under the laws of any such
jurisdiction (except service of process with respect to the offering and sale of the
Shares); and to promptly advise you of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Shares for offer or sale in any
jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as soon as practicable
after this Agreement becomes effective, and thereafter from time to time to furnish to the
Underwriters, as many copies of the Prospectus (or of the Prospectus as amended or
supplemented if the Company shall have made any amendments or supplements thereto after the
effective date of the Registration Statement) as the Underwriters may reasonably request for
the purposes contemplated by the Act; in case any Underwriter is required to deliver
(whether physically or through compliance with Rule 172 under the Act or any similar rule),
in connection with the sale of the Shares, a prospectus after the nine-month period referred
to in Section 10(a)(3) of the Act, or after the time a post-effective amendment to the
Registration Statement is required pursuant to Item 512(a) of Regulation S-K under the Act,
the Company will prepare, at its expense (provided, however, after nine months from the date
of the Prospectus, any such preparing, filing and furnishing will be at the expense of the
Underwriters), promptly upon request such amendment or amendments to the Registration
Statement and the Prospectus as may be necessary to permit compliance with the requirements
of Section 10(a)(3) of the Act or Item 512(a) of Regulation S-K under the Act, as the case
may be;
(c) if, at the time this Agreement is executed and delivered, it is necessary or
appropriate for a post-effective amendment to the Registration Statement to be filed
with the Commission and become effective before the Shares may be sold, the Company will
- 12 -
use its reasonable best efforts to cause such post-effective amendment to be filed and become
effective, and will pay any applicable fees in accordance with the Act, as soon as possible;
and the Company will advise you promptly and, if requested by you, will confirm such advice
in writing, (i) when such post-effective amendment has become effective, and (ii) if Rule
430A under the Act is used, when the Prospectus is filed with the Commission pursuant to
Rule 424(b) under the Act (which the Company agrees to file in a timely manner in accordance
with such Rules);
(d) if, at any time during the period when a prospectus is required by the Act to be
delivered (whether physically or through compliance with Rule 172 under the Act or any
similar rule) in connection with any sale of Shares, the Registration Statement shall cease
to comply with the requirements of the Act with respect to eligibility for the use of the
form on which the Registration Statement was filed with the Commission or the Registration
Statement shall cease to be an “automatic shelf registration statement” (as defined in Rule
405 under the Act) or the Company shall have received, from the Commission, a notice,
pursuant to Rule 401(g)(2), of objection to the use of the form on which the Registration
Statement was filed with the Commission, to (i) promptly notify you, (ii) promptly file with
the Commission a new registration statement under the Act, relating to the Shares, or a
post-effective amendment to the Registration Statement, which new registration statement or
post-effective amendment shall comply with the requirements of the Act and shall be in a
form satisfactory to you, (iii) use its reasonable best efforts to cause such new
registration statement or post-effective amendment to become effective under the Act as soon
as practicable, (iv) promptly notify you of such effectiveness and (v) take all other action
necessary or appropriate to permit the public offering and sale of the Shares to continue as
contemplated in the Prospectus (provided, however, after nine months from the date of the
Prospectus, any such actions will be at the expense of the Underwriters); all references
herein to the Registration Statement shall be deemed to include each such new registration
statement or post-effective amendment, if any;
(e) to advise you promptly, confirming such advice in writing, of any request by the
Commission for amendments or supplements to the Registration Statement, any Pre-Pricing
Prospectus, the Prospectus or any Permitted Free Writing Prospectus or for additional
information with respect thereto, or of notice of institution of proceedings for, or the
entry of a stop order, suspending the effectiveness of the Registration Statement and, if
the Commission should enter a stop order suspending the effectiveness of the Registration
Statement, to use its reasonable best efforts to obtain the lifting or removal of such order
as soon as possible; to advise you promptly of any proposal to amend or supplement the
Registration Statement, any Pre-Pricing Prospectus or the Prospectus, and to provide you and
Underwriters’ counsel copies of any such documents for review and comment a reasonable
amount of time prior to any proposed filing and to file no such amendment or supplement to
which you shall reasonably object in writing (except any documents required to be filed by
the Company pursuant to the Exchange Act);
(f) subject to Section 4(e) hereof, to file promptly all reports and documents and any
preliminary or definitive proxy or information statement required to be filed by
- 13 -
the Company with the Commission in order to comply with the Exchange Act for so long as a prospectus is
required by the Act to be delivered (whether physically or through compliance with Rule 172
under the Act or any similar rule) in connection with any sale of Shares;
(g) to pay the fees applicable to the Registration Statement in connection with the
offering of the Shares within the time required by Rule 456(b)(1)(i) under the Act (without
reliance on the proviso to Rule 456(b)(1)(i) under the Act) and in compliance with Rule
456(b) and Rule 457(r) under the Act;
(h) to advise the Underwriters promptly of the happening of any event within the period
during which a prospectus is required by the Act to be delivered (whether physically or
through compliance with Rule 172 under the Act or any similar rule) in connection with any
sale of Shares, which event could require the making of any change in the Prospectus then
being used so that the Prospectus would not include an untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they are made, not misleading, and to advise the
Underwriters promptly if, during such period, it shall become necessary to amend or
supplement the Prospectus to cause the Prospectus to comply with the requirements of the
Act, and, in each case, during such time, subject to Section 4(e) hereof, to prepare and
furnish, at the Company’s expense (provided, however, after nine months from the date of the
Prospectus, any such preparing, filing and furnishing will be at the expense of the
Underwriters), to the Underwriters promptly such amendments or supplements to such
Prospectus as may be necessary to reflect any such change or to effect such compliance;
(i) to make generally available to its security holders, and to deliver to you, an
earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the
Act) covering a period of twelve months beginning after the effective date of the
Registration Statement (as defined in Rule 158(c) under the Act) as soon as is reasonably
practicable after the termination of such twelve-month period but in any case not later than
May 15, 2009;
(j) to furnish to you four copies of the Registration Statement, as initially filed
with the Commission, and of all amendments thereto (including all exhibits thereto and
documents incorporated by reference therein) and sufficient copies of the foregoing (other
than exhibits) for distribution of a copy to each of the other Underwriters;
(k) to apply the net proceeds from the sale of the Shares in the manner set forth under
the caption “Use of Proceeds” in the Prospectus Supplement;
(l) to pay all costs, expenses, fees and taxes (excluding any fees and disbursements of
counsel for the Underwriters, except as set forth in clauses (iv) and (vi) of this Section
4(l) and Section 5) in connection with (i) the preparation and filing of the Registration Statement, each
Basic Prospectus, each Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus,
each Permitted Free Writing Prospectus and any
- 14 -
amendments or supplements thereto, and the
printing and furnishing of copies of each thereof to the Underwriters and to dealers
(including costs of mailing and shipment), except in each case, as set forth elsewhere in
this Section 4, (ii) the registration, issue, sale and delivery of the Shares including any
stock or transfer taxes and stamp or similar duties payable upon the sale, issuance or
delivery of the Shares to the Underwriters, (iii) the producing, word processing and/or
printing of this Agreement, (iv) the qualification of the Shares for offering and sale under
state or foreign laws as contemplated by Section 4(a) and the determination of their
eligibility for investment under state or foreign law (including the reasonable legal fees
and filing fees and other disbursements of counsel for the Underwriters) and the printing
and furnishing of copies of any blue sky surveys or legal investment surveys to the
Underwriters and to dealers, (v) any listing of the Shares on any securities exchange or
qualification of the Shares for quotation on the NYSE and any registration thereof under the
Exchange Act, (vi) any filing for review of the public offering of the Shares by the
Financial Industry Regulatory Authority, Inc. (the “FINRA”), formerly the National
Association of Securities Dealers, Inc., including the reasonable legal fees and filing fees
and other disbursements of counsel to the Underwriters relating to FINRA matters, (vii) the
fees and disbursements of any transfer agent or registrar for the Shares, (viii) the costs
and expenses of the Company relating to presentations or meetings undertaken in connection
with the marketing of the offering and sale of the Shares to prospective investors and the
Underwriters’ sales forces, including, without limitation, expenses associated with the
production of road show slides and graphics, and (ix) the performance of the Company’s other
obligations hereunder. The Underwriters will pay all of their costs and expenses, including
fees and disbursements of their counsel and any advertising or other expenses in connection
with any offers they may make. It is further understood, however, that the fees and
disbursements of counsel for the Underwriters that the Company may be required to pay
pursuant to clauses (iv) and (vi) of this Section 4(l) shall not exceed $25,000 in the
aggregate;
(m) to comply with Rule 433(d) under the Act (without reliance on Rule 164(b) under the
Act) and with Rule 433(g) under the Act;
(n) beginning on the date hereof and ending on, and including, the date that is 90 days
after the date of the Prospectus Supplement (the “Lock-Up Period”), without the
prior written consent of the Representatives, not to (i) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of,
directly or indirectly, any shares of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock, (ii) file any registration statement with the
Commission relating to the offering of any shares of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock or (iii) enter into any
swap or other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of the Common Stock, whether any such
transaction described in clause (i), (ii) or (iii) above is to be settled by delivery
of Common Stock or such other securities, in cash or otherwise.
- 15 -
The restrictions contained in the preceding paragraph shall not apply to (A) the Shares
to be sold hereunder and any related filing of a registration statement or amendment or
supplement thereto, (B) the issuance by the Company of the Company’s 2.375% Senior
Convertible Notes due 2015 or shares of Common Stock upon conversion of the Company’s 2.375%
Senior Convertible Notes due 2015 issued concurrently with this Offering and any related
filing of a registration statement or amendment or supplement thereto, (C) the issuance by
the Company of shares of Common Stock upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof, (D) grants, issuances or exercises
under any existing employee benefit plans and the Amended and Restated 2005 Long-Term
Incentive Plan, (E) the filing of a registration statement on Form S-8 relating to shares of
Common Stock issued under any existing employee benefit plans or (F) the issuance of Common
Stock or securities exchangeable for, exercisable for or convertible into shares of Common
Stock in connection with the acquisition of, or joint venture with, another company.
(o) prior to the time of purchase or any additional time of purchase, as the case may
be, to provide the Underwriters reasonable advance notice of and opportunity to comment on
any press release or other communication or press conferences with respect to the Company or
any Subsidiary, the financial condition, results of operations, business, properties,
assets, or liabilities of the Company or any Subsidiary, or the offering of the Shares;
(p) not, at any time at or after the execution of this Agreement, to, directly or
indirectly, offer or sell any Shares by means of any “prospectus” (within the meaning of the
Act), or use any “prospectus” (within the meaning of the Act) in connection with the offer
or sale of the Shares, in each case other than the Prospectus;
(q) to furnish to you a copy of each proposed free writing prospectus to be prepared by
or on behalf of, used by, or referred to by the Company and not to use or refer to any
proposed free writing prospectus to which you reasonably object;
(r) not to, and to cause the Subsidiaries not to, take, directly or indirectly, any
action designed, or which will constitute, or has constituted, or might reasonably be
expected to cause or result in the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Shares;
(s) to use its best efforts to cause the Shares to be listed on the NYSE and to
maintain the listing of the Common Stock, including the Shares, on the NYSE; and
(t) to maintain a transfer agent and, if necessary under the jurisdiction of
incorporation of the Company, a registrar for the Common Stock.
5. Reimbursement of Underwriters’ Expenses. If the Shares are not delivered
because of any failure or refusal on the part of the Company to comply with the terms or to
fulfill any of the conditions of this Agreement, other than by reason of a default by any of the
Underwriters as described in Section 8 hereof or if for any reason the Company shall be unable
- 16 -
to perform its obligations under this Agreement, the Company will reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to themselves, severally through the
Representatives on demand, for all out-of-pocket expenses (including the reasonable fees and
disbursements of their counsel) reasonably incurred by such Underwriters in connection with this
Agreement or the offering contemplated hereunder.
6. Conditions of Underwriters’ Obligations. The several obligations of the
Underwriters hereunder are subject to the accuracy of the representations and warranties of the
Company contained in this Agreement that are not qualified by materiality, and the accuracy in all
material respects of the representations and warranties of the Company contained in this Agreement
that are qualified by materiality, on the date hereof, at the time of purchase and, if applicable,
at the additional time of purchase, the performance by the Company of its obligations hereunder and
to the following additional conditions precedent:
(a) The Company shall furnish to you at the time of purchase and, if applicable, at the
additional time of purchase, an opinion of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, counsel for
the Company, addressed to the Underwriters, and dated the time of purchase or the additional
time of purchase, as the case may be, with executed copies for each Underwriter, and in form
and substance satisfactory to the Representatives, in the form set forth in Exhibit
B hereto.
(b) The Company shall furnish to you at the time of purchase and, if applicable, at the
additional time of purchase, an opinion of Xxxxxx X. Xxxxxx, Vice President, General Counsel
and Secretary of the Company, addressed to the Underwriters, and dated the time of purchase
or the additional time of purchase, as the case may be, with executed copies for each
Underwriter, and in form and substance satisfactory to the Representatives, in the form set
forth in Exhibit C hereto.
(c) You shall have received from KPMG LLP letters dated, respectively, the date of this
Agreement, the date of the Prospectus Supplement, the time of purchase and, if applicable,
the additional time of purchase, and addressed to the Underwriters (with executed copies for
each of the Underwriters) in the forms satisfactory to the Representatives, which letters
shall cover, without limitation, the various financial disclosures contained in the
Registration Statement, the Pre-Pricing Prospectuses, the Prospectus and the Permitted Free
Writing Prospectuses, if any.
(d) You shall have received at the time of purchase and, if applicable, at the
additional time of purchase, the favorable opinion of Xxxxx Xxxx & Xxxxxxxx, counsel for the
Underwriters, dated the time of purchase or the additional time of purchase, as the case may
be, in form and substance reasonably satisfactory to the Representatives.
(e) No Prospectus or amendment or supplement to the Registration Statement or the
Prospectus shall have been filed to which you shall have objected in writing.
(f) The Registration Statement shall have been filed and shall have become effective
under the Act. The Prospectus Supplement shall have been filed with the
- 17 -
Commission pursuant
to Rule 424(b) under the Act at or before 5:30 P.M., New York City time, on the second full
business day after the date of this Agreement (or such earlier time as may be required under
the Act).
(g) Prior to and at the time of purchase, and, if applicable, the additional time of
purchase, (i) no stop order with respect to the effectiveness of the Registration Statement
shall have been issued under the Act or proceedings initiated under Section 8(d) or 8(e) of
the Act; (ii) the Registration Statement and all amendments thereto shall not contain an
untrue statement of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; (iii) none of the
Pre-Pricing Prospectuses or the Prospectus, and no amendment or supplement thereto, shall
include an untrue statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under which they are
made, not misleading; (iv) no Disclosure Package, and no amendment or supplement thereto,
shall include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under
which they are made, not misleading; and (v) none of the Permitted Free Writing
Prospectuses, if any, shall include an untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading.
(h) The Company will, at the time of purchase and, if applicable, at the additional
time of purchase, deliver to you a certificate signed by any of its Chief Executive Officer,
President, Chief Financial Officer or General Counsel or any Vice President of the Company,
dated the time of purchase or the additional time of purchase, as the case may be, in the
form attached as Exhibit D hereto.
(i) You shall have received each of the signed agreements (each, a “Lock-Up
Agreement”) in the form set forth as Exhibit A hereto, of the Company’s
directors and officers named in Exhibit A-1 hereto, and each such Lock-Up Agreement
shall be in full force and effect at the time of purchase and the additional time of
purchase, as the case may be.
(j) The Company shall have furnished to you such other documents and certificates as to
the accuracy and completeness of any statement in the Registration Statement, the Disclosure
Package, or the Prospectus as of the time of purchase and, if applicable, the additional
time of purchase, as you may reasonably request.
(k) The Shares shall have been approved for listing on the NYSE, subject only to notice
of issuance at or prior to the time of purchase or the additional time of purchase, as the
case may be.
(l) The FINRA shall not have raised any objection with respect to the fairness
or reasonableness of the underwriting, or other arrangements of the transactions,
contemplated hereby.
- 18 -
7. Effective Date of Agreement; Termination. This Agreement shall become effective
when the parties hereto have executed and delivered this Agreement.
The obligations of the several Underwriters hereunder shall be subject to termination in the
absolute discretion of the Representatives, if (1) since the time of execution of this Agreement or
the earlier respective dates as of which information is given in the Registration Statement, the
Pre-Pricing Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if any, there
has been any change or any development involving a prospective change in the business, properties,
management, financial condition or results of operations of the Company and the Subsidiaries taken
as a whole, the effect of which change or development is, in the sole judgment of the
Representatives, so material and adverse as to make it impractical or inadvisable to proceed with
the public offering or the delivery of the Shares on the terms and in the manner contemplated in
the Registration Statement, the Disclosure Package and the Prospectus, or (2) since the time of
execution of this Agreement, there shall have occurred: (A) a suspension or material limitation in
trading in securities generally on the NYSE, the American Stock Exchange or the NASDAQ; (B) a
suspension or material limitation in trading in the Company’s securities on the NYSE; (C) a general
moratorium on commercial banking activities declared by either federal or New York State
authorities or a material disruption in commercial banking or securities settlement or clearance
services in the United States; (D) an outbreak or escalation of hostilities or acts of terrorism
involving the United States or a declaration by the United States of a national emergency or war;
or (E) any other calamity or crisis or any change in financial, political or economic conditions in
the United States or elsewhere, if the effect of any such event specified in clause (D) or (E), in
the sole judgment of the Representatives, makes it impractical or inadvisable to proceed with the
public offering or the delivery of the Shares on the terms and in the manner contemplated in the
Registration Statement, the Disclosure Package and the Prospectus, or (3) since the time of
execution of this Agreement, there shall have occurred any downgrading, or any notice or
announcement shall have been given or made of: (A) any intended or potential downgrading or (B) any
watch, review or possible change that does not indicate an affirmation or improvement in the rating
accorded any securities of or guaranteed by the Company or any Subsidiary by any “nationally
recognized statistical rating organization,” as that term is defined in Rule 436(g)(2) under the
Act.
If the Representatives elect to terminate this Agreement as provided in this Section 7, the
Company and each other Underwriter shall be notified promptly in writing.
If the sale to the Underwriters of the Shares, as contemplated by this Agreement, is not
carried out by the Underwriters for any reason permitted under this Agreement, or if such sale is
not carried out because the Company shall be unable to comply with any of the terms of this
Agreement, the Company shall not be under any obligation or liability under this Agreement (except
to the extent provided in Sections 4(l) and 9 hereof), and the Underwriters shall be under no
obligation or liability to the Company under this Agreement (except to the extent provided in
Section 9 hereof) or to one another hereunder.
8. Increase in Underwriters’ Commitments. Subject to Sections 6 and 7 hereof, if
any Underwriter shall default in its obligation to take up and pay for the Firm Shares to be
purchased by it hereunder (otherwise than for a failure of a condition set forth in Section 6
hereof
- 19 -
or a reason sufficient to justify the termination of this Agreement under the provisions of
Section 7 hereof) and if the number of Firm Shares which all Underwriters so defaulting shall have
agreed but failed to take up and pay for does not exceed 10% of the total number of Firm Shares,
the non-defaulting Underwriters (including the Underwriters, if any, substituted in the manner set
forth below) shall take up and pay for (in addition to the aggregate number of Firm Shares they are
obligated to purchase pursuant to Section 1 hereof) the number of Firm Shares agreed to be
purchased by all such defaulting Underwriters, as hereinafter provided. Such Shares shall be taken
up and paid for by such non-defaulting Underwriters in such amount or amounts as you may designate
with the consent of each Underwriter so designated or, in the event no such designation is made,
such Shares shall be taken up and paid for by all non-defaulting Underwriters pro rata in
proportion to the aggregate number of Firm Shares set forth opposite the names of such
non-defaulting Underwriters in Schedule A.
Without relieving any defaulting Underwriter from its obligations hereunder, the Company
agrees with the non-defaulting Underwriters that it will not sell any Firm Shares hereunder unless
all of the Firm Shares are purchased by the Underwriters (or by substituted Underwriters selected
by you with the approval of the Company or selected by the Company with your approval). Without
relieving any defaulting Underwriter from its obligations hereunder, the Company agrees with the
non-defaulting Underwriters that it will not sell any Additional Shares hereunder at an additional
time of purchase unless all of the Additional Shares to be purchased by the Underwriters at such
additional time of purchase (as set forth in the related written notice referred to in the second
paragraph of Section 1 hereof) are purchased by the Underwriters (or by substituted Underwriters
selected by you with the approval of the Company or selected by the Company with your approval).
If a new Underwriter or Underwriters are substituted by the Underwriters or by the Company for
a defaulting Underwriter or Underwriters in accordance with the foregoing provision, the Company or
you shall have the right to postpone the time of purchase for a period not exceeding five business
days in order that any necessary changes in the Registration Statement and the Prospectus and other
documents may be effected.
The term “Underwriter” as used in this Agreement shall refer to and include any
Underwriter substituted under this Section 8 with like effect as if such substituted Underwriter
had originally been named in Schedule A hereto.
If the aggregate number of Firm Shares which the defaulting Underwriter or Underwriters agreed
to purchase exceeds 10% of the total number of Firm Shares which all Underwriters agreed to
purchase hereunder, the remaining Underwriters shall have the right to purchase all, but shall not
be under any obligation to purchase any, of such Firm Shares. If
neither the non-defaulting Underwriters nor the Company shall make arrangements within the five
business day period stated above for the purchase of all the Firm Shares which the defaulting
Underwriter or Underwriters agreed to purchase hereunder at such time, this Agreement, or, in the
case of a default with respect to any Additional Shares, the obligations of the Underwriters to
purchase, and of the Company to sell, the Additional Shares that otherwise were to be purchased by
the Underwriters at such additional time of purchase, shall terminate without further act or deed
and without any liability with respect thereto on the part of the Company to any
- 20 -
Underwriter and
without any liability with respect thereto on the part of any non-defaulting Underwriter to the
Company; provided, however, that, for avoidance of doubt, in the case of such a termination on
account of a default with respect to any Additional Shares, this Agreement shall not terminate as
to the Firm Shares or any Additional Shares purchased by the Underwriters from the Company pursuant
hereto prior to such termination. Nothing in this paragraph, and no action taken hereunder, shall
relieve any defaulting Underwriter from liability in respect of any default of such Underwriter
under this Agreement.
9. Indemnity and Contribution.
(a) The Company agrees to indemnify, defend and hold harmless each Underwriter, its
partners, directors and officers, and any person who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, and the successors and
assigns of all of the foregoing persons, from and against any loss, damage, expense,
liability or claim (including the reasonable cost of investigation) which, jointly or
severally, any such Underwriter or any such person may incur under the Act, the Exchange
Act, the common law or otherwise, insofar as such loss, damage, expense, liability or claim
arises out of or is based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or in the Registration Statement as
amended by any post-effective amendment thereof by the Company) or arises out of or is based
upon any omission or alleged omission to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as any such loss,
damage, expense, liability or claim arises out of or is based upon any untrue statement or
alleged untrue statement of a material fact contained in, and in conformity with information
concerning such Underwriter furnished in writing by or on behalf of such Underwriter through
you to the Company expressly for use in, the Registration Statement or arises out of or is
based upon any omission or alleged omission to state a material fact in the Registration
Statement in connection with such information, which material fact was not contained in such
information and which material fact was required to be stated in such Registration Statement
or was necessary to make such information not misleading or (ii) any untrue statement or
alleged untrue statement of a material fact included in any Prospectus (the term Prospectus
for the purpose of this Section 9 being deemed to include any Basic Prospectus, any
Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus and any amendments or
supplements to the foregoing) or in any Permitted Free Writing Prospectus, or any omission
or alleged omission to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading,
except, with respect to such Prospectus or Permitted Free Writing Prospectus, insofar as any
such loss, damage, expense, liability or claim arises out of or is
based upon any untrue statement or alleged untrue statement of a material fact
contained in, and in conformity with information concerning such Underwriter furnished in
writing by or on behalf of such Underwriter through you to the Company expressly for use in,
such Prospectus or Permitted Free Writing Prospectus or arises out of or is based upon any
omission or alleged omission to state a material fact in such Prospectus or Permitted Free
Writing Prospectus in connection with such information, which material fact was not
contained in such information and which material fact was necessary in order to make the
- 21 -
statements in such information, in the light of the circumstances under which they were
made, not misleading.
(b) Each Underwriter severally agrees to indemnify, defend and hold harmless the
Company, its directors and officers, and any person who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, and the successors and
assigns of all of the foregoing persons, from and against any loss, damage, expense,
liability or claim (including the reasonable cost of investigation) which, jointly or
severally, the Company or any such person may incur under the Act, the Exchange Act, the
common law or otherwise, insofar as such loss, damage, expense, liability or claim arises
out of or is based upon (i) any untrue statement or alleged untrue statement of a material
fact contained in, and in conformity with information concerning such Underwriter furnished
in writing by or on behalf of such Underwriter through you to the Company expressly for use
in, the Registration Statement (or in the Registration Statement as amended by any
post-effective amendment thereof by the Company), or arises out of or is based upon any
omission or alleged omission to state a material fact in such Registration Statement in
connection with such information, which material fact was not contained in such information
and which material fact was required to be stated in such Registration Statement or was
necessary to make such information not misleading or (ii) any untrue statement or alleged
untrue statement of a material fact contained in, and in conformity with information
concerning such Underwriter furnished in writing by or on behalf of such Underwriter through
you to the Company expressly for use in, a Prospectus or a Permitted Free Writing
Prospectus, or arises out of or is based upon any omission or alleged omission to state a
material fact in such Prospectus or Permitted Free Writing Prospectus in connection with
such information, which material fact was not contained in such information and which
material fact was necessary in order to make the statements in such information, in the
light of the circumstances under which they were made, not misleading.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against
a person (an “indemnified party”) in respect of which indemnity may be sought
against the Company or an Underwriter (as applicable, the “indemnifying party”)
pursuant to subSection (a) or (b), respectively, of this Section 9, such indemnified
party shall promptly notify such indemnifying party in writing of the institution of such
Proceeding and such indemnifying party shall assume the defense of such Proceeding,
including the employment of counsel reasonably satisfactory to such indemnified party and
payment of all reasonable fees and expenses; provided, however, that the
omission to so notify such indemnifying party shall not relieve such indemnifying party from
any liability which
such indemnifying party may have to any indemnified party or otherwise. The
indemnified party or parties shall have the right to employ its or their own counsel in any
such case, but the fees and expenses of such counsel shall be at the expense of such
indemnified party or parties unless the employment of such counsel shall have been
authorized in writing by the indemnifying party in connection with the defense of such
Proceeding or the indemnifying party shall not have, within a reasonable period of time in
light of the circumstances, employed counsel to defend such Proceeding or such indemnified
party or parties shall have reasonably concluded that there may be defenses
- 22 -
available to it
or them which are different from, additional to or in conflict with those available to such
indemnifying party (in which case such indemnifying party shall not have the right to direct
the defense of such Proceeding on behalf of the indemnified party or parties), in any of
which events such reasonable fees and expenses shall be borne by such indemnifying party and
paid as incurred (it being understood, however, that such indemnifying party shall not be
liable for the reasonable expenses of more than one separate counsel (in addition to any
local counsel) in any one Proceeding or series of related Proceedings in the same
jurisdiction representing the indemnified parties who are parties to such Proceeding). The
indemnifying party shall not be liable for any settlement of any Proceeding effected without
its written consent but, if settled with its written consent, such indemnifying party agrees
to indemnify and hold harmless the indemnified party or parties from and against any loss or
liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any
time an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the second sentence of
this Section 9(c), then the indemnifying party agrees that it shall be liable for any
settlement of any Proceeding effected without its written consent if (i) such settlement is
entered into more than 60 business days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall not have fully reimbursed the
indemnified party in accordance with such request prior to the date of such settlement and
(iii) such indemnified party shall have given the indemnifying party at least 30 days’ prior
notice of its intention to settle. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or threatened
Proceeding 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 an unconditional release of such indemnified party from all liability on claims
that are the subject matter of such Proceeding and does not include an admission of fault or
culpability or a failure to act by or on behalf of such indemnified party.
(d) If the indemnification provided for in this Section 9 is unavailable to an
indemnified party under subsections (a) and (b) of this Section 9 or insufficient to hold
an indemnified party harmless in respect of any losses, damages, expenses, liabilities or
claims referred to therein, then each applicable indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of such losses, damages,
expenses, liabilities or claims (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters on the other
hand from the offering of the Shares 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 on the one hand and of the Underwriters on the other
in connection with the statements or omissions which resulted in such losses, damages,
expenses, liabilities or claims, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the Underwriters on the
other shall be deemed to be in the same respective proportions as the total proceeds from
the offering (net of underwriting discounts and commissions but before deducting expenses)
received by the Company, and the total underwriting discounts and commissions received by the
- 23 -
Underwriters, bear to the aggregate public offering price of the Shares. The relative
fault of the Company on the one hand and of the Underwriters on the other shall be
determined by reference to, among other things, whether the untrue statement or alleged
untrue statement of a material fact or omission or alleged omission relates to information
supplied by the Company or by the Underwriters and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or omission. The
amount paid or payable by a party as a result of the losses, damages, expenses, liabilities
and claims referred to in this subsection shall be deemed to include any legal or other fees
or expenses reasonably incurred by such party in connection with investigating, preparing to
defend or defending any Proceeding.
(e) The Company and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 9 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations referred to in
subSection (d) above. Notwithstanding the provisions of this Section 9, no Underwriter
shall be required to contribute any amount in excess of the amount by which the total price
at which the Shares underwritten by such Underwriter and distributed to the public were
offered to the public exceeds the amount of any damage which such Underwriter has otherwise
been required to pay by reason of such untrue statement or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations to
contribute pursuant to this Section 9 are several in proportion to their respective
underwriting commitments and not joint.
(f) The indemnity and contribution agreements contained in this Section 9 and the
covenants, warranties and representations of the Company contained in this Agreement shall
remain in full force and effect regardless of any investigation made by or on behalf of any
Underwriter, its partners, directors or officers or any person (including each partner,
officer or director of such person) who controls any Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, or by or on behalf of the Company,
its directors or officers or any person who controls the Company within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, and shall survive any termination
of this Agreement or the issuance
and delivery of the Shares. The Company and each Underwriter agree promptly to notify
each other of the commencement of any Proceeding against it and, in the case of the Company,
against any of the Company’s officers or directors in connection with the issuance and sale
of the Shares, or in connection with the Registration Statement, any Basic Prospectus, any
Pre-Pricing Prospectus, the Prospectus or any Permitted Free Writing Prospectus.
10. Information Furnished by the Underwriters. The statements set forth in the fourth
paragraph on the cover page of the Prospectus and the statements set forth in the third, fourth and
ninth paragraphs under the caption “Underwriting” in the Prospectus, only insofar as such
statements relate to the amount of selling concession and reallowance or to over-allotment and
stabilization activities that may be undertaken by the Underwriters, constitute the only
- 24 -
information furnished by or on behalf of the Underwriters, as such information is referred to in
Sections 3 and 9 hereof.
11. Notices. Except as otherwise herein provided, all statements, requests, notices
and agreements shall be in writing or by telegram or facsimile and, if to the Underwriters, shall
be sufficient in all respects if delivered or sent to the Representatives: UBS Securities LLC, 000
Xxxxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, (facsimile: (000) 000-0000) Attention: Liability
Management Group, with a copy to (which shall not constitute notice), UBS Securities LLC, Legal and
Compliance Department, (facsimile: (000) 000-0000); Citigroup Global Markets Inc., 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: General Counsel, (facsimile: (000) 000-0000; and, if
to the Company, shall be sufficient in all respects if delivered or sent to the Company at the
offices of the Company at 000 Xxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000, (facsimile: (000)
000-0000), Attention: General Counsel.
12. Governing Law; Construction. This Agreement and any claim, counterclaim or
dispute of any kind or nature whatsoever arising out of or in any way relating to this Agreement
(“Claim”), directly or indirectly, shall be governed by, and construed in accordance with,
the laws of the State of New York. The section headings in this Agreement have been inserted as a
matter of convenience of reference and are not a part of this Agreement.
13. Submission to Jurisdiction. Except as set forth below, no Claim may be commenced,
prosecuted or continued in any court other than the courts of the State of New York located in the
City and County of New York or in the United States District Court for the Southern District of New
York, which courts shall have jurisdiction over the adjudication of such matters, and the Company
consents to the jurisdiction of such courts and personal service with respect thereto. The Company
hereby consents to personal jurisdiction, service and venue in any court in which any Claim arising
out of or in any way relating to this Agreement is brought by any third party against any
Underwriter or any indemnified party. Each Underwriter and the Company (on its behalf and, to the
extent permitted by applicable law, on behalf of its stockholders and affiliates) waive all right
to trial by jury in any action, proceeding or counterclaim (whether based upon contract, tort or
otherwise) in any way arising out of or relating to this Agreement. The Company agrees that a
final judgment in any such action, proceeding or counterclaim brought in any such court shall be
conclusive and binding upon the Company and may be enforced in any other courts to the jurisdiction
of which the Company is or may be subject, by suit upon such judgment.
14. Parties at Interest. The Agreement herein set forth has been and is made solely
for the benefit of the Underwriters and the Company and to the extent provided in Section 9 hereof
the controlling persons, partners, directors and officers referred to in such Section, and their
respective successors, assigns, heirs, personal representatives and executors and administrators.
No other person, partnership, association or corporation (including a purchaser, as such purchaser,
from any of the Underwriters) shall acquire or have any right under or by virtue of this Agreement.
15. No Fiduciary Relationship. The Company hereby acknowledges that the Underwriters
are acting solely as underwriters in connection with the purchase and sale of the
- 25 -
Company’s securities. The Company further acknowledges that the Underwriters are acting pursuant to a
contractual relationship created solely by this Agreement entered into on an arm’s length basis,
and in no event do the parties intend that the Underwriters act or be responsible as a fiduciary to
the Company, its management, stockholders or creditors or any other person in connection with any
activity that the Underwriters may undertake or have undertaken in furtherance of the purchase and
sale of the Company’s securities, either before or after the date hereof. The Underwriters hereby
expressly disclaim any fiduciary or similar obligations to the Company, either in connection with
the transactions contemplated by this Agreement or any matters leading up to such transactions, and
the Company hereby confirms its understanding and agreement to that effect. The Company and the
Underwriters agree that they are each responsible for making their own independent judgments with
respect to any such transactions and that any opinions or views expressed by the Underwriters to
the Company regarding such transactions, including, but not limited to, any opinions or views with
respect to the price or market for the Company’s securities, do not constitute advice or
recommendations to the Company. The Company hereby waives and releases, to the fullest extent
permitted by law, any claims that the Company may have against the Underwriters with respect to any
breach or alleged breach of any fiduciary or similar duty to the Company in connection with the
transactions contemplated by this Agreement or any matters leading up to such transactions.
16. Counterparts. This Agreement may be signed by the parties in one or more
counterparts which together shall constitute one and the same agreement among the parties.
17. Successors and Assigns. This Agreement shall be binding upon the Underwriters and
the Company and their successors and assigns and any successor or assign of any substantial portion
of the Company’s and any of the Underwriters’ respective businesses and/or assets.
18. Miscellaneous. UBS, an indirect, wholly owned subsidiary of UBS AG, is not a bank
and is separate from any affiliated bank, including any U.S. branch or agency of UBS AG. Because
UBS is a separately incorporated entity, it is solely responsible for its own contractual
obligations and commitments, including obligations with respect to sales and purchases of
securities. Securities sold, offered or recommended by UBS are not deposits, are not insured by
the Federal Deposit Insurance Corporation, are not guaranteed by a branch or agency, and are not
otherwise an obligation or responsibility of a branch or agency.
[The Remainder of This Page Intentionally Left Blank; Signature Page Follows]
- 26 -
If the foregoing correctly sets forth the understanding between the Company and the several
Underwriters, please so indicate in the space provided below for that purpose, whereupon this
Agreement and your acceptance shall constitute a binding agreement between the Company and the
Underwriters, severally.
| Very truly yours, Alpha Natural Resources, Inc. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: Xxxxxx X. Xxxxxx | ||||
| Title: Vice President, Secretary and General Counsel | ||||
Accepted and agreed to as of the date first
above written, on behalf of themselves and
the other several Underwriters named in
Schedule A
above written, on behalf of themselves and
the other several Underwriters named in
Schedule A
| UBS Securities LLC | ||||
| Citigroup Global Markets Inc. | ||||
| By: UBS Securities LLC | ||||
By: |
/s/ Xxxxxx Xxxxxx | |||
| Name: Xxxxxx Xxxxxx | ||||
| Title: Director | ||||
By: |
/s/ Xxx Xxxxx | |||
| Name: Xxx Xxxxx | ||||
| Title: Executive Director | ||||
| By: Citigroup Global Markets Inc. | ||||
By: |
/s/ Xxxxxx Xxxxxxxxx | |||
| Name: Xxxxxx Xxxxxxxxx | ||||
| Title: Vice President | ||||
SCHEDULE A
| Number of | ||
| Underwriter | Firm Shares | |
UBS SECURITIES LLC |
1,381,818 | |
CITIGROUP GLOBAL MARKETS INC |
1,381,818 | |
WACHOVIA CAPITAL MARKETS, LLC |
218,182 | |
WEDBUSH XXXXXX SECURITIES INC |
218,182 | |
BB&T CAPITAL MARKETS, A DIVISION OF XXXXX
& XXXXXXXXXXXX, INC |
72,727 | |
BMO CAPITAL MARKETS CORP |
72,727 | |
DAIWA SECURITIES AMERICA INC |
72,727 | |
NATCITY INVESTMENTS, INC |
72,727 | |
PNC CAPITAL MARKETS LLC |
72,727 | |
SG AMERICAS SECURITIES, LLC |
72,727 | |
Total |
3,636,363 | |
SCHEDULE B
Combined Pricing Term Sheet dated April 1, 2008.
SCHEDULE C
| State of Incorporation or | ||||
| Name of Subsidiary | Organization | |||
1. |
Alpha Coal Sales Co., LLC | Delaware | ||
2. |
Alpha Land and Reserves, LLC | Delaware | ||
3. |
Alpha Natural Resources, Inc. | Delaware | ||
4. |
Alpha Natural Resources, LLC | Delaware | ||
5. |
Alpha Natural Resources Capital Corp. | Delaware | ||
6. |
Alpha Natural Resources Services, LLC | Delaware | ||
7. |
Alpha Terminal Company, LLC | Delaware | ||
8. |
AMFIRE, LLC | Delaware | ||
9. |
AMFIRE Holdings, Inc. | Delaware | ||
10. |
AMFIRE Mining Company, LLC | Delaware | ||
11. |
AMFIRE WV, L.P. | Delaware | ||
12. |
Black Dog Coal Corp. | Virginia | ||
13. |
Xxxxxx Run Mining Company, LLC | Delaware | ||
14. |
Xxxxxxxx Energy Company, LLC | Virginia | ||
15. |
Callaway Land and Reserves, LLC | Delaware | ||
16. |
Callaway Natural Resources, Inc. | Delaware | ||
17. |
Cobra Natural Resources, LLC | Delaware | ||
18. |
Xxxxxxxxx-Xxxxxxx Coal Company, LLC | Delaware | ||
19. |
Xxxxxxxxx-Xxxxxxx Land and Reserves, LLC | Delaware | ||
20. |
Enterprise Land and Reserves, Inc. | Florida | ||
21. |
Enterprise Mining Company, LLC | Delaware | ||
22. |
Xxxxxxxxx Coal Co., LLC | Delaware | ||
23. |
Gallatin Materials LLC | Delaware | ||
24. |
Xxxxxxx Processing Company, LLC | West Virginia | ||
25. |
Xxxxxx Processing Company, LLC | West Virginia | ||
26. |
Kingwood Mining Company, LLC | Delaware | ||
27. |
Litwar Processing Company, LLC | West Virginia | ||
28. |
Maxxim Rebuild Co., LLC | Delaware | ||
29. |
Maxxim Shared Services, LLC | Delaware | ||
30. |
Maxxum Carbon Resources, LLC | Delaware | ||
31. |
XxXxxxxx-Wyoming Coal Company, LLC | Delaware | ||
32. |
Xxxxxxxxxx Contracting, Inc. | West Virginia | ||
33. |
Palladian Holdings, LLC | Delaware | ||
34. |
Palladian Lime, LLC | Delaware | ||
35. |
Paramont Coal Company Virginia, LLC | Delaware | ||
36. |
Powers Shop, LLC | Virginia | ||
37. |
Premium Energy, LLC | Delaware | ||
38. |
Riverside Energy Company, LLC | West Virginia | ||
39. |
Solomons Mining Company | West Virginia | ||
40. |
Twin Star Mining, Inc. | West Virginia | ||
41. |
Virginia Energy Company, LLC | Delaware | ||
42. |
White Flame Energy, Inc. | West Virginia |
EXHIBIT A
Lock-Up Agreement
[ ], 2008
UBS Securities LLC
Citigroup Global Markets Inc.
Together with the other Underwriters
named in Schedule A to the Underwriting Agreement
referred to herein
Citigroup Global Markets Inc.
Together with the other Underwriters
named in Schedule A to the Underwriting Agreement
referred to herein
c/o UBS Securities LLC
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Ladies and Gentlemen:
This Lock-Up Agreement is being delivered to you in connection with the proposed Underwriting
Agreement (the “Underwriting Agreement”) to be entered into by Alpha Natural Resources,
Inc., a Delaware corporation (the “Company”), and you and the other underwriters named in
Schedule A to the Underwriting Agreement (the “Underwriters”), with respect to the public
offering (the “Offering”) of common stock, par value $0.01 per share, of the Company (the
“Common Stock”).
In order to induce you to enter into the Underwriting Agreement, the undersigned agrees that,
for a period (the “Lock-Up Period”) beginning on the date hereof and ending on, and
including, the date that is 90 days after the date of the final prospectus supplement relating to
the Offering, the undersigned will not, without the prior written consent of UBS Securities LLC and
Citigroup Global Markets Inc. (the “Representatives”), (1) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any
option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or
indirectly, any shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock, or (2) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of ownership of the Common Stock,
whether any such transaction described in clause (1) or (2) above is to be settled by delivery of
Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply
to (a) transactions by any person relating to shares of Common Stock or other securities acquired
in open market transactions after the completion of the Offering, provided that no filing by any
party under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) shall be
required or shall be voluntarily made in connection with subsequent sales of Common Stock or other
securities acquired in such open market transactions, (b) if the undersigned is an executive
officer of the Company, (i) sales or other dispositions of Common Stock pursuant to written trading
plans designed to comply with Rule 10b5-1 of the Exchange Act (“10b5-1 Plans”) that were
existing on or prior to the date
hereof or (ii) the entry by the undersigned into new 10b5-1
A-1
Plans, provided that no sales or other
dispositions pursuant to this clause (b)(ii) may occur under such plans until the expiration of the
restricted period referred to in the foregoing sentence, (c) transfers of shares of Common Stock or
any security convertible into or exercisable or exchangeable for Common Stock as a bona fide gift
or gifts to charitable organizations, (d) other than to charitable organizations, transfers of
shares of Common Stock or any security convertible into or exercisable or exchangeable for Common
Stock as a bona fide gift or gifts, or as a result of testate, intestate succession or bona fide
estate planning, (e) transfers by the undersigned to a trust, partnership, limited liability
company or other entity, all of the beneficial interests of which are held, directly or indirectly,
by the undersigned, (f) distributions of shares of Common Stock or any security convertible into or
exercisable or exchangeable for Common Stock to limited partners or stockholders of the
undersigned; provided that in the case of any transfer or distribution pursuant to clause (c), (d)
or (e), (i) each transferee or distributee shall sign and deliver a lock-up letter substantially in
the form of this letter and (ii) the undersigned and the transferee shall not be required to, and
shall not voluntarily, file a report under the Exchange Act, reporting a reduction in beneficial
ownership of shares of Common Stock during the restricted period referred to in the foregoing
sentence; provided, further, that this clause (ii) shall not apply to (c) above with respect to any
transfers of shares of Common Stock by Xxxxxxx X. Xxxxxxx to the Xxxxxxx X. Xxxxxxx Family Limited
Partnership, or such other limited partnership, trust or investment vehicle, in connection with
bona fide estate planning, provided that the Xxxxxxx X. Xxxxxxx Family Limited Partnership, or such
other limited partnership, trust or investment vehicle, as applicable, complies with the
requirements of clause (i) above. In addition, the undersigned agrees that, without the prior
written consent of the Representatives on behalf of the Underwriters, it will not, during the
period commencing on the date hereof and ending 90 days after the date of the final prospectus
supplement relating to the Offering, make any demand for or exercise any right with respect to, the
registration of any shares of Common Stock or any security convertible into or exercisable or
exchangeable for Common Stock. The undersigned also agrees and consents to the entry of stop
transfer instructions with the Company’s transfer agent and registrar against the transfer of the
undersigned’s share of Common Stock except in compliance with the foregoing restrictions.
The undersigned understands that the Company and the Underwriters are relying upon this
agreement in proceeding toward consummation of the Offering. The undersigned further understands
that this agreement is irrevocable and shall be binding upon the undersigned’s heirs, legal
representatives, successors and assigns.
* * *
A-2
If (i) the Company notifies you in writing that it does not intend to proceed with the
Offering, (ii) the registration statement filed with the Commission with respect to the Offering is
withdrawn or (iii) for any reason the Underwriting Agreement shall be terminated prior to the “time
of purchase” (as defined in the Underwriting Agreement), this Lock-Up Agreement shall be terminated
and the undersigned shall be released from its obligations hereunder.
| Yours very truly, | ||
| Name: |
X-0
XXXXXXX X-0
LIST OF PARTIES TO EXECUTE LOCK-UP AGREEMENTS
| Name | Position | |
1. Xxxxxxx X. Xxxxxxx
|
Chairman of the Board of Directors and Chief Executive Officer | |
2. Xxxx Xxxxx Xxxxxx
|
Director | |
3. Xxxx X. Xxxxxx
|
Director | |
4. Xxxxxxx Xxxxxxx
|
Director | |
5. E. Xxxx Xxxxxx, Xx.
|
Director | |
6. Xxxxx X. Xxxxxxxxx
|
Director | |
7. Xxxx X. Xxx, Xx.
|
Director | |
8. Xxx X. Xxxx
|
Director | |
9. Xxxxx X. Xxxxxxxxxxx
|
Director and President | |
10. Xxxxx X. XxXxxxxxx
|
Vice President of Operations | |
11. Xxxxxxx X. Xxxxx
|
Vice President | |
12. Xxxxx X. Xxxxxx
|
Vice President and Chief Financial Officer | |
13. Xxxxxx X. Xxxxxx
|
Vice President and General Counsel | |
14. Xxxxx X. Xxxxx
|
Vice President and Controller |
A-1-1
EXHIBIT B
FORM OF
OPINION OF XXXXXX XXXXXXXX XXXXX & XXXXXXXX LLP
EXHIBIT C
FORM OF GENERAL COUNSEL OPINION
EXHIBIT D
OFFICERS’ CERTIFICATE
Each of the undersigned officers of Alpha Natural Resources, Inc., a Delaware corporation (the
“Company”), on behalf of the Company, does hereby certify pursuant to Section 6(h) of that
certain Underwriting Agreement dated April 1, 2008 (the “Underwriting Agreement”) between
the Company and, on behalf of the several Underwriters named therein, UBS Securities LLC and
Citigroup Global Markets Inc., that as of April 7, 2008:
| 1. | He has reviewed the Registration Statement, the Disclosure Package, and the Prospectus. | |
| 2. | The representations and warranties of the Company set forth in the Underwriting Agreement that are not qualified by materiality are true and correct, and the representations and warranties of the Company set forth in the Underwriting Agreement that are qualified by materiality are true and correct in all material respects, as of the date hereof and as if made on the date hereof. | |
| 3. | The Company has in all material respects performed all of its obligations under the Underwriting Agreement as are to be performed at or before the date hereof. | |
| 4. | At or prior to the date hereof, there has not occurred any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and the Subsidiaries, taken as a whole, subsequent to the respective dates as of which information is given in the Registration Statement, the Disclosure Package and the Prospectus. | |
| 5. | To the best of his knowledge, the condition set forth in paragraph (g) of Section 6 of the Underwriting Agreement has been met. |
Capitalized terms used herein without definition shall have the respective meanings ascribed
to them in the Underwriting Agreement.
In Witness Whereof, the undersigned have hereunto set their hands on this [ ], 2008.
| Name: | ||
| Title: | ||
| Name: | ||
| Title: |
