Patriot Coal Corporation Debt Underwriting Agreement Standard Provisions
Exhibit
1.2
Patriot Coal Corporation
Debt Underwriting Agreement
Standard Provisions
From time
to time, Patriot Coal Corporation, a Delaware corporation (the “Company”), may
enter into one or more underwriting agreements in the Form of Annex A hereto
that incorporate by reference these Standard Provisions (collectively with these
Standard Provisions, an “Underwriting Agreement”) and that provide for the sale
of the securities designated in such Underwriting Agreement (the “Securities”)
to the several Underwriters named therein (the “Underwriters”), for whom the
Underwriter(s) named therein shall act as representative (the “Representative”).
The Underwriting Agreement, including these Standard Provisions, is sometimes
referred to herein as this “Agreement”. The Securities will be issued pursuant
to an Indenture dated as of _______, 20__ (the “Indenture”) between the Company
and Wilmington Trust Company, as trustee (the “Trustee”).
1. Representations and
Warranties. The Company represents and warrants to, and agrees with, each
Underwriter as set forth below in this Section 1.
(a) The
Company meets the requirements for use of Form S-3 under the Act and has
prepared and filed with the Commission a registration statement (the file number
of which will be set forth in Schedule I to the Underwriting Agreement) on Form
S-3, including a related Base Prospectus, for registration under the Act of the
offering and sale of the Securities. Such Registration Statement, including any
amendments thereto filed prior to the Execution Time, have become effective. The
Company may have filed with the Commission, as part of an amendment to the
Registration Statement or pursuant to Rule 424(b), one or more preliminary
prospectus supplements relating to the Securities, each of which has previously
been furnished to you. The Company will file with the Commission a final
prospectus supplement relating to the Securities in accordance with Rule 424(b).
As filed, such final prospectus supplement shall contain all information
required by the Act and the rules thereunder, and, except to the extent the
Representative shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the Execution Time
or, to the extent not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that contained in the
Base Prospectus and any Preliminary Prospectus) as the Company has advised you,
prior to the Execution Time, will be included or made therein. The Registration
Statement, at the Execution Time, meets the requirements set forth in Rule
415(a)(1)(x). The initial Effective Date of the Registration Statement was not
earlier than the date three years before the Execution Time.
Any
reference herein to the Registration Statement, the Base Prospectus, any
Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 which were filed under the Exchange Act on or before the Effective Date
of the Registration Statement or the issue date of the Base Prospectus, any
Preliminary Prospectus or the Final Prospectus, as the case may be; and any
reference herein to the terms “amend,” “amendment” or “supplement” with respect
to the Registration Statement, the Base Prospectus, any Preliminary Prospectus
or the
(b) On each
Effective Date, the Registration Statement did, and when the Final Prospectus is
first filed in accordance with Rule 424(b) and on the Closing Date (as defined
herein), the Final Prospectus (and any supplement thereto) will, comply in all
material respects with the applicable requirements of the Act, the Exchange Act
and the Trust Indenture Act and the respective rules thereunder; on each
Effective Date and at the Execution Time, the Registration Statement did not and
will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading; on the Effective Date and on the Closing Date
the Indenture did or will comply in all material respects with the applicable
requirements of the Trust Indenture Act and the rules thereunder; and on the
date of any filing pursuant to Rule 424(b) and on the Closing Date, the Final
Prospectus (together with any supplement thereto) will not include any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that the
Company makes no representations or warranties as to (i) that part of the
Registration Statement which shall constitute the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee or (ii)
the information contained in or omitted from the Registration Statement or the
Final Prospectus (or any supplement thereto) in reliance upon and in conformity
with information furnished in writing to the Company by or on behalf of any
Underwriter through the Representative specifically for inclusion in the
Registration Statement or the Final Prospectus (or any supplement thereto), it
being understood and agreed that the only such information furnished by or on
behalf of any Underwriter consists of the information described as such in
Section 8 hereof.
(c) The
Disclosure Package, as of the Execution Time, does not contain any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. The preceding sentence does not apply to
statements in or omissions from the Disclosure Package based upon and in
conformity with written information furnished to the Company by any Underwriter
through the Representative specifically for use therein, it being understood and
agreed that the only such information furnished by or on behalf of any
Underwriter consists of the information described as such in Section 8
hereof.
(d) At the
earliest time after the filing of the Registration Statement that the Company or
another offering participant made a bona fide offer (within the
meaning of Rule 164(h)(2)) of the Securities, the Company was not and is not an
Ineligible Issuer (as defined in Rule 405), without taking account of any
determination by the Commission pursuant to Rule 405 that it is not necessary
that the Company be considered an Ineligible Issuer.
(e) Each
Issuer Free Writing Prospectus and any final term sheet prepared and filed
pursuant to Section 5(b) hereto does not include any information that conflicts
with the information contained in the Registration Statement, including any
document incorporated therein by reference and any prospectus supplement deemed
to be a part thereof that has not been superseded or modified. The foregoing
sentence does not apply to statements in or omissions from any Issuer Free
Writing Prospectus based upon and in conformity with written information
furnished to the Company by any Underwriter through the Representative
specifically for use therein, it being understood and agreed that the only such
information furnished by or on behalf of any Underwriter consists of the
information described as such in Section 8 hereof.
(f) The
Company is not, and after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof as described in the
Disclosure Package and the Final Prospectus will not be, an “investment company”
as defined in the Investment Company Act.
(g) The
Company is subject to and in compliance in all material respects with the
reporting requirements of Section 13 or Section 15(d) of the Exchange
Act.
(h) The
Company has not paid or agreed to pay to any person any compensation for
soliciting another to purchase any securities of the Company (except as
contemplated in this Agreement).
(i) The
Company has not taken, directly or indirectly, any action designed to or that
has constituted or that might reasonably be expected to cause or result, under
the Exchange Act or otherwise, in stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of the
Securities.
(j) Each of
the Company and its subsidiaries has been duly incorporated or organized and is
validly existing as a corporation, limited liability company or other entity in
good standing under the laws of the jurisdiction in which it is formed with full
corporate power and authority to own or lease, as the case may be, and to
operate its properties and conduct its business as described in the Disclosure
Package and the Final Prospectus, and is duly qualified to do business as a
foreign corporation and is in good standing under the laws of each jurisdiction
that requires such qualification, except for such jurisdictions where the
failure to so qualify or to be in good standing would not result in a Material
Adverse Effect.
(k) The
statements in the Preliminary Prospectus and the Final Prospectus listed in the
Underwriting Agreement fairly summarize the matters therein described in all
material respects.
(l) This
Agreement has been duly authorized, executed and delivered by the Company; the
Indenture has been duly authorized and, assuming due authorization, execution
and delivery thereof by the Trustee, when executed and delivered by the Company,
will constitute a legal, valid, binding instrument enforceable against the
Company in accordance with its terms (subject, as to the enforcement of
remedies, to
(m) No
consent, approval, authorization, filing with or order of any court or
governmental agency or body is required in connection with the transactions
contemplated herein or in the Indenture, except such as may be required under
the blue sky laws of any jurisdiction in which the Securities are offered and
sold.
(n) None of
the execution and delivery of the Indenture or this Agreement, the issuance and
sale of the Securities, or the consummation of any other of the transactions
herein, or the fulfillment of the terms hereof will conflict with, result in a
breach or violation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or its subsidiaries pursuant to (i) the
charter or by-laws or comparable constituting documents of the Company or its
subsidiaries; (ii) the terms of any indenture, contract, lease, mortgage, deed
of trust, note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which the Company or its subsidiaries is a
party or bound or to which its or their property is subject; or (iii) any
statute, law, rule, regulation, judgment, order or decree of any court,
regulatory body, administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or its subsidiaries, or any of
its or their properties, except in the case of clause (ii) and (iii) for any
such conflict, breach, violation or imposition as would not result in a Material
Adverse Effect on the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of business (a
“Material Adverse Effect”).
(o) The
consolidated historical financial statements and schedules of the Company and
its consolidated subsidiaries included or incorporated by reference in the
Disclosure Package and the Final Prospectus present fairly in all material
respects the financial condition, results of operations and cash flows of the
Company, as the case may be, as of the dates and for the periods indicated,
comply as to form with the applicable accounting requirements of Regulation S-X
and have been prepared in conformity with generally accepted accounting
principles in the United States applied on a consistent basis throughout the
periods involved (except as otherwise noted therein); and the selected financial
data set forth in the captions listed in the Underwriting Agreement in the
Preliminary Prospectus and the Final Prospectus fairly present, on the basis
stated in the Preliminary Prospectus and the Final Prospectus, the information
included or incorporated by reference therein.
(p) No
action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or its subsidiaries or
its property is pending or, to the knowledge of the Company, threatened that (i)
could reasonably be expected to have a Material Adverse Effect on the
performance of this Agreement or the Indenture or the consummation of any of the
transactions contemplated hereby or (ii) could reasonably be expected to have a
Material Adverse Effect, except as set forth in or contemplated in the
Disclosure Package and the Final Prospectus (exclusive of any amendment or
supplement thereto).
(q) Each of
the Company and its subsidiaries owns or leases all such properties as are
necessary to the conduct of its operations as presently conducted except where
the failure to so own or lease properties would not have a Material Adverse
Effect and except as set forth or contemplated in the Disclosure Package and the
Final Prospectus (exclusive of any amendment or supplement
thereto).
(r) None of
the Company or its subsidiaries is in violation or default of (i) any provision
of its charter or bylaws or comparable constituting documents; (ii) the terms of
any indenture, contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or instrument to
which it is a party or bound or to which its property is subject; or (iii) any
statute, law, rule, regulation, judgment, order, decree or requirement
applicable to the Company or its subsidiaries, of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or such subsidiary or any of its properties, as
applicable, except, with respect to clauses (ii) and (iii), as would not result
in a Material Adverse Effect.
(s) Ernst
& Young LLP and PricewaterhouseCoopers LLP, who have certified certain
financial statements of the Company and/or its consolidated subsidiaries and
delivered its reports with respect to the audited consolidated financial
statements and schedules included, incorporated by reference and/or reflected in
the Disclosure Package and the Final Prospectus, are independent public
accountants with respect to the Company within the meaning of the
Act.
(t) There are
no stamp or other issuance or transfer taxes or duties or other similar fees or
charges required to be paid in connection with the execution and delivery of
this Agreement or the issuance or sale of the Securities.
(u) The
Company (i) has timely filed all applicable tax returns that are required to be
filed or has requested extensions thereof (except in any case in which the
failure so to file would not have a Material Adverse Effect and except as set
forth in or contemplated in the Disclosure Package and the Final Prospectus
(exclusive of any amendment or supplement thereto)) and all such tax returns are
correct and complete in all material respects, and (ii) has timely paid all
taxes required to be paid by it and any other assessment, fine or penalty levied
against it, to the extent that any of the foregoing is due and payable, except
for any such tax or assessment, fine or penalty that is currently being
contested in good faith or as would not have a Material Adverse Effect and
except
as set
forth in or contemplated in the Disclosure Package and the Final Prospectus
(exclusive of any amendment or supplement thereto).
(v) No labor
problem or dispute with the employees of the Company or its subsidiaries exists
or to the Company’s knowledge is threatened or imminent, and the Company is not
aware of any existing or imminent labor disturbance by the employees of any of
its or its subsidiaries’ principal suppliers, contractors or customers, except
as would not have a Material Adverse Effect, and except as set forth in or
contemplated in the Disclosure Package and the Final Prospectus (exclusive of
any amendment or supplement thereto).
(w) Each of
the Company and its subsidiaries is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are prudent
and customary in the businesses in which they are engaged; all policies of
insurance and fidelity or surety bonds insuring the Company and its subsidiaries
or their respective businesses, assets, employees, officers and directors are in
full force and effect in all material respects; the Company and its subsidiaries
are in compliance in all material respects with the terms of such policies and
instruments; there are no material claims by the Company or its subsidiaries
under any such policy or instrument as to which any insurance company is denying
liability or defending under a reservation of rights clause; none of the Company
or its subsidiaries has been refused any insurance coverage sought or applied
for; and none of the Company or its subsidiaries has any reason to believe that
it will not be able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar insurers as may be
necessary to continue its business at a cost that would not have a Material
Adverse Effect except as set forth in or contemplated in the Disclosure Package
and the Final Prospectus (exclusive of any amendment or supplement
thereto).
(x) No
subsidiary of the Company is currently prohibited, directly or indirectly, from
paying any dividends to the Company, from making any other distribution on such
subsidiary’s capital stock, from repaying to the Company any loans or advances
to such subsidiary from the Company or from transferring any of such
subsidiary’s property or assets to the Company or any other subsidiary of the
Company, except as described in or contemplated in the Disclosure Package and
the Final Prospectus (exclusive of any amendment or supplement
thereto).
(y) Except as
set forth in the Disclosure Package and the Final Prospectus (exclusive of any
amendment or supplement thereto), the Company and its subsidiaries have such
permits, licenses, franchises, certificates, consents, orders and other
approvals or authorizations of any governmental or regulatory authority
(“Permits”), including, without limitation, any permits or approvals required by
the United States Environmental Protection Agency, the United States Office of
Surface Mining Reclamation and Enforcement and corresponding state agencies, as
are necessary under applicable law to own their properties and to conduct their
respective businesses in the manner described in the Disclosure Package and the
Final Prospectus, except to the extent that the failure to have such Permits
would not reasonably be expected to have a Material Adverse Effect. Except as
described in or contemplated in the Disclosure Package and the
Final
(z) The
Company and its consolidated subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management’s general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles in the United States and to maintain asset accountability;
(iii) access to assets is permitted only in accordance with management’s general
or specific authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences. The Company and its consolidated
subsidiaries’ internal controls over financial reporting were effective as of
the December 31st prior
to the date of the Underwriting Agreement and are effective as of the date
hereof. The Company is not aware of any material weakness in its or its
consolidated subsidiaries’ internal control over financial
reporting.
(aa) The
Company and its subsidiaries maintain “disclosure controls and procedures” (as
such term is defined in Rule 13a-15(e) under the Exchange Act); such disclosure
controls and procedures are effective.
(bb) The
Company and its subsidiaries (i) are in compliance with any and all applicable
statutes, laws, rules, regulations, judgments, orders, decrees or requirements
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
(“Environmental Laws”); (ii) have received and are in compliance with all
Permits required of them under applicable Environmental Laws to conduct their
respective businesses; (iii) have not received notice of any actual or potential
liability under any Environmental Law and have not been named as a “potentially
responsible party” under the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as amended; and (iv) are not aware of the presence,
spill, discharge, disposal or release of or exposure to hazardous or toxic
substances, materials or wastes relating to their properties or operations that
would require investigation or remediation pursuant to Environmental Laws,
except, for each of clause (i), (ii), (iii) and (iv) above, as would not,
individually or in the aggregate, have a Material Adverse Effect, or as set
forth in or contemplated in the Disclosure Package and the Final Prospectus
(exclusive of any amendment or supplement thereto).
(dd) None of
the following events has occurred or exists: (i) a failure to fulfill the
obligations, if any, under the minimum funding standards of Xxxxxxx 000 xx xxx
Xxxxxx Xxxxxx Employee Retirement Income Security Act of 1974, as amended
(“ERISA”), and the regulations and published interpretations thereunder with
respect to a Plan, determined without regard to any waiver of such obligations
or extension of any amortization period; (ii) an audit or investigation by the
Internal Revenue Service, the U.S. Department of Labor, the Pension Benefit
Guaranty Corporation or any other U.S. federal or state governmental agency or
any foreign regulatory agency with respect to the employment or compensation of
employees by any of the Company or its subsidiaries that could have a Material
Adverse Effect; (iii) any breach of any contractual obligation, or any violation
of law or applicable qualification standards, with respect to the employment or
compensation of employees by the Company or its subsidiaries that could have a
Material Adverse Effect. None of the following events has occurred or is
reasonably likely to occur: (i) a material increase in the aggregate amount of
contributions required to be made to all Plans in the current fiscal year of the
Company and its subsidiaries compared to the amount of such contributions made
in the most recently completed fiscal year of the Company and its subsidiaries;
(ii) a material increase in the “accumulated post-retirement benefit
obligations” (within the meaning of Statement of Financial Accounting Standards
106) for the current fiscal year of the Company and its subsidiaries compared to
the amount of such obligations in the most recently completed fiscal year of the
Company and its subsidiaries; (iii) any event or condition giving rise to a
liability under Title IV of ERISA that could have a Material Adverse Effect; or
(iv) the filing of a claim by one or more employees or former employees of the
Company or its subsidiaries, related to their employment that could have a
Material Adverse Effect. For purposes of this paragraph, the term “Plan” means a
plan (within the meaning of Section 3(3) of ERISA) subject to Title IV of ERISA
with respect to which the Company or its subsidiaries may have any
liability.
(ee) None of
the Company or its subsidiaries, or to the knowledge of the Company, any
director, officer, agent, employee or Affiliate of the Company or its
subsidiaries is aware of or has taken any action, directly or indirectly, that
would result in a violation by such persons of the Foreign Corrupt Practices Act
of 1977, as amended, and the rules and regulations thereunder (the “FCPA”),
including, without limitation, making use of the mails or any means or
instrumentality of interstate commerce corruptly in furtherance of an offer,
payment, promise to pay or authorization of the payment of any money, or other
property, gift, promise to give, or authorization of the giving of anything of
value to any “foreign official” (as such term is defined in the FCPA) or any
foreign political party or official thereof or any candidate for foreign
political office, in contravention of the FCPA; and the Company and its
subsidiaries and, to the knowledge of the Company, its Affiliates have conducted
their businesses in compliance with the FCPA and have instituted and maintain
policies and procedures designed to ensure, and which are reasonably expected to
continue to ensure, continued compliance therewith.
(ff) The
operations of the Company and its subsidiaries are and have been conducted at
all times in compliance with applicable financial recordkeeping and reporting
requirements and money laundering statutes and the rules and regulations
thereunder and any related or similar rules, regulations or guidelines, issued,
administered or enforced by any governmental agency (collectively, the “Money
Laundering Laws”) and no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Company
and its subsidiaries with respect to the Money Laundering Laws is pending or, to
the knowledge of the Company, threatened.
(gg) None of
the Company or its subsidiaries, or, to the knowledge of the Company, any
director, officer, agent, employee or Affiliate of the Company or any of its
subsidiaries is currently subject to any sanctions administered by the Office of
Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”); and the
Company will not directly or indirectly use the proceeds of the offering of the
Securities hereunder, or lend, contribute or otherwise make available such
proceeds to any subsidiary, joint venture partner or other person or entity, for
the purpose of financing the activities of any person currently subject to any
U.S. sanctions administered by OFAC.
(hh) There is
and has been no failure on the part of the Company and any of the Company’s
directors or officers, in their capacities as such, to comply with any provision
of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in
connection therewith, including Section 402 related to loans and Sections 302
and 906 related to certifications.
(ii) The
qualitative and quantitative data regarding proven and probable coal reserves of
the Company included or incorporated by reference in the Disclosure Package and
the Final Prospectus (x) were derived in accordance with the procedures
described in the Disclosure Package and the Final Prospectus and all applicable
industry standards, including Industry Guide 7 under the Exchange Act, and (y)
have been reviewed by the professionals set forth in the Underwriting
Agreement.
Any
certificate signed by any officer of the Company and delivered to the
Representative or counsel for the Underwriters in connection with the offering
of the Securities shall be deemed a representation and warranty by the Company,
as to matters covered thereby, to each Underwriter.
2. Purchase and Sale.
Subject to the terms and conditions and in reliance upon the representations and
warranties herein set forth, the Company agrees to sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to purchase from the
Company, at the purchase price set forth in Schedule I to the Underwriting
Agreement the principal amount of the Securities set forth opposite such
Underwriter’s name in Schedule II to the Underwriting Agreement.
3. Delivery and Payment.
Delivery of and payment for the Securities shall be made on the date and at the
time specified in Schedule I to the Underwriting Agreement or at such time on
such later date not more than three Business Days after the foregoing date as
the
4. Offering by
Underwriters. It is understood that the several Underwriters propose to
offer the Securities for sale to the public as set forth in the Final
Prospectus.
5. Agreements. The
Company agrees with the several Underwriters that:
(a) Prior to
the termination of the offering of the Securities, the Company will not file any
amendment of the Registration Statement or supplement (including the Final
Prospectus or any Preliminary Prospectus) to the Base Prospectus or any Rule
462(b) Registration Statement unless the Company has furnished you a copy for
your review prior to filing and will not file any such proposed amendment or
supplement to which you reasonably object. The Company will cause the Final
Prospectus, properly completed, and any supplement thereto to be filed in a form
approved by the Representative with the Commission pursuant to Rule 424(b)
within the time period prescribed and will provide evidence satisfactory to the
Representative of such timely filing. The Company will promptly advise the
Representative (i) when the Final Prospectus, and any supplement thereto, shall
have been filed (if required) with the Commission pursuant to Rule 424(b) or
when any Rule 462(b) Registration Statement shall have been filed with the
Commission, (ii) when, prior to termination of the offering of the Securities,
any amendment to the Registration Statement shall have been filed or become
effective, (iii) of any request by the Commission or its staff for any amendment
of the Registration Statement, or any Rule 462(b) Registration Statement, or for
any supplement to the Final Prospectus or for any additional information, (iv)
of the issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or of any notice objecting to its use or the
institution or threatening of any proceeding for that purpose and (v) of the
receipt by the Company of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the institution
or threatening of any proceeding for such purpose. The Company will use its best
efforts to prevent the issuance of any such stop order or the occurrence of any
such suspension or objection to the use of the Registration Statement and, upon
such issuance, occurrence or notice of objection, to obtain as soon as possible
the withdrawal of such stop order or relief from such occurrence or objection,
including, if necessary, by filing an amendment to the Registration Statement or
a new registration statement and using its best efforts to have such amendment
or new registration statement declared effective as soon as
practicable.
(b) To
prepare a final term sheet, containing solely a description of final terms of
the Securities and the offering thereof, in the form approved by you and
attached as
(c) If, at
any time prior to the filing of the Final Prospectus pursuant to Rule 424(b),
any event occurs as a result of which the Disclosure Package would include any
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under which
they were made or the circumstances then prevailing not misleading, the Company
will (i) notify promptly the Representative so that any use of the Disclosure
Package may cease until it is amended or supplemented; (ii) amend or supplement
the Disclosure Package to correct such statement or omission; and (iii) supply
any amendment or supplement to you in such quantities as you may reasonably
request.
(d) If, at
any time when a prospectus relating to the Securities is required to be
delivered under the Act (including in circumstances where such requirement may
be satisfied pursuant to Rule 172), any event occurs as a result of which the
Final Prospectus as then supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they were made
at such time not misleading, or if it shall be necessary to amend the
Registration Statement, file a new registration statement or supplement the
Final Prospectus to comply with the Act or the Exchange Act or the respective
rules thereunder, including in connection with use or delivery of the Final
Prospectus, the Company promptly will (i) notify the Representative of any such
event, (ii) prepare
and file with the Commission, subject to the second sentence of paragraph (a) of
this Section 5, an amendment or supplement or new registration statement which
will correct such statement or omission or effect such compliance, (iii) use its
best efforts to have any amendment to the Registration Statement or new
registration statement declared effective as soon as practicable in order to
avoid any disruption in use of the Final Prospectus and (iv) supply any
supplemented Final Prospectus to you in such quantities as you may reasonably
request.
(e) As soon
as practicable, the Company will make generally available to its security
holders and to the Representative an earnings statement or statements of the
Company and its subsidiaries which will satisfy the provisions of Section 11(a)
of the Act and Rule 158.
(f) The
Company will furnish to the Representative and counsel for the Underwriters,
without charge, signed copies of the Registration Statement (including exhibits
thereto) and to each other Underwriter a copy of the Registration Statement
(without exhibits thereto) and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act (including in circumstances
where such requirement may be satisfied pursuant to Rule 172), as many copies of
each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing
Prospectus and any supplement thereto as the Representative may reasonably
request. The Company will pay the expenses of printing or other production of
all documents relating to the offering.
(h) The
Company agrees that, unless it has or shall have obtained the prior written
consent of the Representative, and each Underwriter, severally and not jointly,
agrees with the Company that, unless it has or shall have obtained, as the case
may be, the prior written consent of the Company, it has not made and will not
make any offer relating to the Securities that would constitute an Issuer Free
Writing Prospectus or that would otherwise constitute a “free writing
prospectus” (as defined in Rule 405) required to be filed by the Company with
the Commission or retained by the Company under Rule 433, other than a free
writing prospectus containing the information contained in the final term sheet
prepared and filed pursuant to Section 5(b) hereto; provided that the prior
written consent of the parties hereto shall be deemed to have been given in
respect of the Free Writing Prospectuses included in Schedule III to the
Underwriting Agreement and any electronic road show. Any such free writing
prospectus consented to by the Representative or the Company is hereinafter
referred to as a “Permitted Free Writing Prospectus.” The Company agrees that
(x) it has treated and will treat, as the case may be, each Permitted Free
Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied
and will comply, as the case may be, with the requirements of Rules 164 and 433
applicable to any Permitted Free Writing Prospectus, including in respect of
timely filing with the Commission, legending and record keeping.
(i) The
Company will not, without the prior written consent of the Representative,
offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into
any transaction which is designed to, or might reasonably be expected to, result
in the disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the Company or any Affiliate
of the Company or any person in privity with the Company or any Affiliate of the
Company), directly or indirectly, including the filing (or participation in the
filing) of a registration statement with the Commission in respect of, or
establish or increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the Exchange Act, any
debt securities issued or guaranteed by the Company (other than the Securities)
or publicly announce an intention to effect any such transaction, until the
Closing Date.
(j) The
Company will not take, directly or indirectly, any action designed to or that
would constitute or that might reasonably be expected to cause or result, under
the Exchange Act or otherwise, in stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of the
Securities.
(k) The
Company agrees to pay the costs and expenses relating to the following matters:
(i) the preparation, printing or reproduction and filing with the
Commission of the Registration Statement (including financial
statements and exhibits thereto), each Preliminary Prospectus, the Final
Prospectus and each Issuer Free Writing Prospectus, and each amendment or
supplement to any of them; (ii) the printing (or reproduction) and delivery
(including postage, air freight charges and charges for counting and packaging)
of such copies of the Registration Statement, each Preliminary Prospectus, the
Final Prospectus and each Issuer Free Writing Prospectus, and all amendments or
supplements to any of them, as may, in each case, be reasonably requested for
use in connection with the offering and sale of the Securities; (iii) the
preparation, printing, authentication, issuance and delivery of certificates for
the Securities, including any stamp or transfer taxes in connection with the
original issuance and sale of the Securities; (iv) the printing (or
reproduction) and delivery of this Agreement, any blue sky memorandum and all
other agreements or documents printed (or reproduced) and delivered in
connection with the offering of the Securities; (v) the registration of the
Securities under the Exchange Act and the listing of the Securities on the New
York Stock Exchange, if any; (vi) any registration or qualification of the
Securities for offer and sale under the securities or blue sky laws of the
several states (including filing fees and the reasonable fees and expenses of
counsel for the Underwriters relating to such registration and qualification);
(vii) any filings required to be made with the NASD, Inc. (including filing fees
and the reasonable fees and expenses of counsel for the Underwriters relating to
such filings); (viii) the transportation and other expenses incurred by or on
behalf of Company representatives in connection with presentations to
prospective purchasers of the Securities; (ix) the fees and expenses of the
Company’s accountants and the fees and expenses of counsel (including local and
special counsel) for the Company; and (x) all other costs and expenses incident
to the performance by the Company of its obligations hereunder.
6. Conditions to the
Obligations of the Underwriters. The obligations of the Underwriters to
purchase the Securities shall be subject to the accuracy of the representations
and warranties on the part of the Company contained herein as of the Execution
Time and the Closing Date, to the accuracy of the statements of the Company made
in any certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional
conditions:
(a) The Final
Prospectus, and any supplement thereto, have been filed in the manner and within
the time period required by Rule 424(b); the final term sheet contemplated by
Section 5(b) hereto, and any other material required to be filed by the Company
pursuant to Rule 433(d) under the Act, shall have been filed with the Commission
within the applicable time periods prescribed for such filings by Rule 433; and
no stop order suspending the effectiveness of the Registration Statement or any
notice objecting to its use shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
(b) The
Company shall have requested and caused Xxxxx Xxxx & Xxxxxxxx, counsel for
the Company, to furnish to the Representative its opinion and 10b-5 statement,
dated the Closing Date and addressed to the Representative, in substantially the
form of Annex B hereto.
(c) The
Company shall have requested and caused Xxxxxx X. Xxxx, in-house counsel for the
Company, to furnish to the Representative his opinion, dated the Closing Date
and addressed to the Representative, in substantially the form of Annex C
hereto.
(d) The
Representative shall have received from the firm listed in the underwriting
agreement as counsel for the Underwriters, such opinion or opinions, dated the
Closing Date and addressed to the Representative, with respect to the issuance
and sale of the Securities, the Indenture, the Registration Statement, the
Disclosure Package, the Final Prospectus (together with any supplement thereto)
and other related matters as the Representative may reasonably require, and the
Company shall have furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters.
(e) The
Company shall have furnished to the Representative a certificate of the Company,
signed by (x) the Chief Executive Officer and (y) the Chief Financial Officer of
the Company, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the Disclosure
Package, the Final Prospectus and any supplements or amendments thereto, and
this Agreement and that to the best of their knowledge:
(i) the
representations and warranties of the Company in this Agreement are true and
correct on and as of the Closing Date with the same effect as if made on the
Closing Date, and the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied hereunder at or
prior to the Closing Date;
(ii) no stop
order suspending the effectiveness of the Registration Statement or any notice
objecting to its use has been issued and no proceedings for that purpose have
been instituted or, to the Company’s knowledge, threatened; and
(iii) since the
date of the most recent financial statements included in the Disclosure Package
and the Final Prospectus (exclusive of any supplement thereto), there has been
no Material Adverse Effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Disclosure Package and
the Final Prospectus (exclusive of any supplement thereto).
(f) At the
Execution Time and at the Closing Date, the Company shall have requested and
caused Ernst & Young LLP to furnish to the Representative letters, dated
respectively as of the Execution Time and as of the Closing Date in form and
substance satisfactory to the Representative.
(g) Subsequent
to the Execution Time or, if earlier, the dates as of which information is given
in the Disclosure Package (exclusive of any amendment thereof) and
the Final
Prospectus (exclusive of any amendment or supplement thereto), there shall not
have been (i) any adverse change or decrease specified in the letter or letters
referred to in paragraph (f) of this Section 6 or (ii) any change, or any
development involving a prospective change, in or affecting the condition
(financial or otherwise), earnings, business or properties of the Company and
its subsidiaries taken as a whole, whether or not arising from transactions in
the ordinary course of business, except as set forth in or contemplated in the
Disclosure Package and the Final Prospectus (exclusive of any amendment or
supplement thereto), the effect of which, in any case referred to in clause (i)
or (ii) above, is, in the sole judgment of the Representative, so material and
adverse as to make it impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Registration Statement
(exclusive of any amendment thereof), the Disclosure Package and the Final
Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent
to the Execution Time, there shall not have been any decrease in the rating of
any of the Company’s debt securities by any “nationally recognized statistical
rating organization” (as defined for purposes of Rule 436(g) under the Act) or
any notice given of any intended or potential decrease in any such rating or of
a possible change in any such rating that does not indicate the direction of the
possible change.
(i) Prior to
the Closing Date, the Company shall have furnished to the Representative such
further information, certificates and documents as the Representative may
reasonably request.
If any of
the conditions specified in this Section 6 shall not have been fulfilled when
and as provided in this Agreement, or if any of the opinions and certificates
mentioned above or elsewhere in this Agreement shall not be reasonably
satisfactory in form and substance to the Representative and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by the
Representative. Notice of such cancellation shall be given to the Company in
writing or by telephone or facsimile confirmed in writing.
The
documents required to be delivered by this Section 6 shall be delivered at the
office of the underwriters’ counsel set forth in the Underwriting Agreement, on
the Closing Date.
7. Reimbursement of
Underwriters’ Expenses. If the sale of the Securities provided for herein
is not consummated because any condition to the obligations of the Underwriters
set forth in Section 6 hereof is not satisfied, because of any termination
pursuant to Section 10 hereof or because of any refusal, inability or failure on
the part of the Company to perform any agreement herein or comply with any
provision hereof other than by reason of a default by any of the Underwriters,
the Company will reimburse the Underwriters severally through the Representative
on demand for all expenses (including reasonable fees and disbursements of
counsel) that shall have been incurred by them in connection with the proposed
purchase and sale of the Securities.
8. Indemnification and
Contribution. (a) The Company agrees to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each
(b) Each
Underwriter, severally and not jointly, agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers, and each person who
controls the Company within the meaning of either the Act or the Exchange Act,
to the same extent as the foregoing indemnity from the Company to each
Underwriter, but only with reference to written information relating to such
Underwriter furnished to the Company by or on behalf of such Underwriter through
the Representative specifically for inclusion in the documents referred to in
the foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have. The Company acknowledges
that the statements set forth in the Underwriting Agreement constitute the only
information furnished in writing by or on behalf of the several Underwriters for
inclusion in any Preliminary Prospectus, the Final Prospectus or any Issuer Free
Writing Prospectus.
(c) Promptly
after receipt by an indemnified party under this Section 8 of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 8,
notify the indemnifying party in writing of the commencement thereof; but the
failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided
(d) In
the event that the indemnity provided in paragraph (a) or (b) of this Section 8
is unavailable to or insufficient to hold harmless an indemnified party for any
reason, the Company and the Underwriters severally agree to contribute to the
aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending the
same) (collectively “Losses”) to which the Company and one or more of the
Underwriters may be subject in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and by the
Underwriters on the other from the offering of the Securities; provided, however, that in no
case shall any Underwriter (except as may be provided in any agreement
among underwriters relating to the offering of the Securities) be responsible
for any amount in excess of the underwriting discount or commission applicable
to the Securities purchased by such Underwriter hereunder. If the allocation
provided by the immediately preceding sentence is unavailable for any reason,
the Company and the Underwriters severally shall contribute in such proportion
as is appropriate to reflect not only such relative benefits but also the
relative fault of the Company on the one hand and of the Underwriters on the
other in connection with the statements or omissions which resulted in such
Losses as well as any other relevant equitable considerations. Benefits received
by the Company shall be deemed to be equal to the total net proceeds from the
offering (before deducting expenses) received by it, and benefits received by
the Underwriters shall be deemed to be equal to the total
9. Default by an
Underwriter. If any one or more Underwriters shall fail to purchase and
pay for any of the Securities agreed to be purchased by such Underwriter or
Underwriters hereunder and such failure to purchase shall constitute a default
in the performance of its or their obligations under this Agreement, the
remaining Underwriters shall be obligated severally to take up and pay for (in
the respective proportions which the principal amount of Securities set forth
opposite their names in Schedule II to the Underwriting Agreement bears to the
aggregate principal amount of Securities set forth opposite the names of all the
remaining Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the
event that the aggregate principal amount of Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate principal amount of Securities set forth in Schedule II to the
Underwriting Agreement, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Securities, and if such nondefaulting Underwriters do not purchase all the
Securities, this Agreement will terminate without liability to any nondefaulting
Underwriter or the Company. In the event of a default by any Underwriter as set
forth in this Section 9, the Closing Date shall be postponed for such period,
not exceeding five Business Days, as the Representative shall determine in order
that the required changes in the Registration Statement and the Final Prospectus
or in any other documents or arrangements may be effected. Nothing contained in
this Agreement shall relieve any defaulting Underwriter of its liability, if
any, to the Company and any nondefaulting Underwriter for damages occasioned by
its default hereunder.
10. Termination. This
Agreement shall be subject to termination in the absolute discretion of the
Representative, by notice given to the Company prior to delivery of, and payment
for, the Securities, if at any time prior to such delivery and payment (i)
trading in the Company’s Common Stock shall have been suspended by the
Commission or the New York Stock Exchange or trading in securities generally on
the New York Stock Exchange shall have
been suspended or limited or minimum prices shall have been
established on such exchange, (ii) a banking moratorium shall have been declared
either by U.S. federal or New York State authorities or (iii) there shall have
occurred any outbreak or escalation of hostilities, declaration by the United
States of a national emergency or war, or other calamity or crisis the effect of
which on financial markets is such as to make it, in the sole judgment of the
Representative, impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by any Preliminary Prospectus or the
Final Prospectus (exclusive of any amendment or supplement
thereto).
11. Representations and
Indemnities to Survive. The respective agreements, representations,
warranties, indemnities and other statements of the Company or its officers and
of the Underwriters set forth in or made pursuant to this Agreement will remain
in full force and effect, regardless of any investigation made by or on behalf
of any Underwriter or the Company or any of the officers, directors, employees,
agents or controlling persons referred to in Section 8 hereof, and will survive
delivery of and payment for the Securities. The provisions of Sections 7 and 8
hereof shall survive the termination or cancellation of this
Agreement.
12. Notices. All
communications hereunder will be in writing and effective only on receipt, and,
if sent to the Representative, will be mailed, delivered or telefaxed to (a) the
Representative at the address and fax details set forth in the Underwriting
Agreement and (b) Underwriter’s counsel at the address and fax details set forth
in the Underwriting Agreement; or, if sent to the Company, will be mailed,
delivered or telefaxed to Patriot Coal Corporation (fax no.: (000) 000-0000) and
confirmed to it at Patriot Coal Corporation, 00000 Xxxxx Xxxxxxxxx, Xxxxx 000,
Xx. Xxxxx, Xxxxxxxx 00000, Attention: Xxxxxx X. Xxxx, with a copy to Xxxxx Xxxx
& Xxxxxxxx, Attention: Xxxxx X. Xxxxxx, Esq. (fax no.: (000) 000-0000) and
confirmed to Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
13. Successors. This
Agreement will inure to the benefit of and be binding upon the parties hereto
and their respective successors and the officers, directors, employees, agents
and controlling persons referred to in Section 8 hereof, and no other person
will have any right or obligation hereunder.
14. No fiduciary duty.
The Company hereby acknowledges that (a) the purchase and sale of the Securities
pursuant to this Agreement is an arm’s-length commercial transaction between the
Company, on the one hand, and the Underwriters and any Affiliate through which
it may be acting, on the other, (b) the Underwriters are acting as principals
and not as agents or fiduciaries of the Company and (c) the Company’s engagement
of the Underwriters in connection with the offering and the process leading up
to the offering is as independent contractors and not in any other capacity.
Furthermore, the Company agrees that it is solely responsible for making its own
judgments in connection with the offering (irrespective of whether any of the
Underwriters has advised or is currently advising the Company on related or
other matters). The Company agrees that it will not claim that the Underwriters
have rendered advisory services of any nature or respect, or owe an agency,
fiduciary or similar duty to the Company, in connection with such transaction or
the process leading thereto.
16. Applicable Law. This
Agreement will be governed by and construed in accordance with the laws of the
State of New York applicable to contracts made and to be performed within the
State of New York.
17. Waiver of Jury Trial.
The Company hereby irrevocably waives, to the fullest extent permitted by
applicable law, any and all right to trial by jury in any legal proceeding
arising out of or relating to this Agreement or the transactions contemplated
hereby.
18. Counterparts. This
Agreement may be signed in one or more counterparts, each of which shall
constitute an original and all of which together shall constitute one and the
same agreement.
19. Headings. The section
headings used herein are for convenience only and shall not affect the
construction hereof.
20. Definitions. The
terms that follow, when used in this Agreement, shall have the meanings
indicated.
“Act”
shall mean the U.S. Securities Act of 1933, as amended and the rules and
regulations of the Commission promulgated thereunder.
“Affiliate”
shall have the meaning specified in Rule 501(b) of Regulation D.
“Base
Prospectus” shall mean the base prospectus referred to in paragraph 1(a) above
contained in the Registration Statement at the Execution Time.
“Business
Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a
day on which banking institutions or trust companies are authorized or obligated
by law to close in New York City.
“Commission”
shall mean the Securities and Exchange Commission.
“Disclosure
Package” shall mean (i) the Base Prospectus, (ii) the Preliminary Prospectus
used most recently prior to the Execution Time, (iii) the Issuer Free Writing
Prospectuses, if any, identified in Schedule III to the Underwriting Agreement,
(iv) the final term sheet prepared and filed pursuant to Section 5(b) hereto, if
any, and (v) any other Free Writing Prospectus that the parties hereto shall
hereafter expressly agree in writing to treat as part of the Disclosure
Package.
“Effective
Date” shall mean each date and time that the Registration Statement, and any
post-effective amendment or amendments thereto and any Rule 462(b) Registration
Statement became or becomes effective.
“Execution
Time” shall mean the date and time that the Underwriting Agreement is executed
and delivered by the parties hereto.
“Final
Prospectus” shall mean the prospectus supplement relating to the Securities that
was first filed pursuant to Rule 424(b) after the Execution Time, together with
the Base Prospectus.
“Free
Writing Prospectus” shall mean a free writing prospectus, as defined in Rule
405.
“Investment
Company Act” shall mean the U.S. Investment Company Act of 1940, as amended, and
the rules and regulations of the Commission promulgated thereunder.
“Issuer
Free Writing Prospectus” shall mean an issuer free writing prospectus, as
defined in Rule 433.
“Preliminary
Prospectus” shall mean any preliminary prospectus supplement to the Base
Prospectus referred to in paragraph 1(a) above which is used prior to the filing
of the Final Prospectus, together with the Base Prospectus.
“Registration
Statement” shall mean the registration statement referred to in paragraph 1(a)
above, including exhibits and financial statements and any prospectus supplement
relating to the Securities that is filed with the Commission pursuant to Rule
424(b) and deemed part of such registration statement pursuant to Rule 430B, as
amended on each Effective Date and, in the event any post-effective amendment
thereto or any Rule 462(b) Registration Statement becomes effective prior to the
Closing Date, shall also mean such registration statement as so amended or such
Rule 462(b) Registration Statement, as the case may be.
“Regulation
D” shall mean Regulation D under the Act.
“Regulation
S-X” shall mean Regulation S-X under the Act.
“Rule
158”, “Rule 163”, “Rule 164”, “Rule 172”, “Rule 405”, “Rule 415”, “Rule 424”,
“Rule 430B” , “Rule 433” and “Rule 462” refer to such rules under the
Act.
“Rule
462(b) Registration Statement” shall mean a registration statement and any
amendments thereto filed pursuant to Rule 462(b) relating to the offering
covered by the registration statement referred to in Section 1(a)
hereof.
“Trust
Indenture Act” shall mean the U.S. Trust Indenture Act of 1939, as amended and
the rules and regulations of the Commission promulgated thereunder.
[FORM OF
UNDERWRITING AGREEMENT]
Underwriting
Agreement
[__________],
20[__]
To the
Representative named in
Schedule
I hereto of the several
Underwriters
named in
Schedule
II hereto
Ladies
and Gentlemen:
Patriot
Coal Corporation, a corporation organized under the laws of Delaware (the
“Company”), proposes to sell (such sale, the “Offering”) to the several
underwriters named in Schedule II hereto (the “Underwriters”), for whom you (the
“Representative”) are acting as representative, the principal amount of its
securities identified in Schedule I hereto (the “Securities”), to be issued
under an indenture (the “Base Indenture”) dated as of ______, 20__ as amended by
a [insert supplemental indenture number] supplemental indenture
dated
_______,
20__ (the “[insert supplemental indenture number] Supplemental Indenture”)
between the Company and Wilmington Trust Company, as trustee (the “Trustee”, and
the Base Indenture as amended by the [insert supplemental indenture number]
Supplemental Indenture the “Indenture”).
To the
extent there are no additional Underwriters listed on Schedule I other than you,
the term Representative as used herein shall mean you, as Underwriter, and the
terms Representative and Underwriter shall mean either the singular or plural as
the context requires.
Subject
to the terms and conditions and in reliance upon the representations and
warranties set forth herein and in the Company’s Debt Underwriting Agreement
Standard Provisions filed as Exhibit 1.2 to the Company’s Form S-3 dated March
2, 2009 (the “Standard Provisions”), the Company agrees to sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to purchase
from the Company, at the purchase price set forth in Schedule I to the
Underwriting Agreement the principal amount of the Securities set forth opposite
such Underwriter’s name in Schedule II to the Underwriting
Agreement.
Schedule
III hereto contains the Free Writing Prospectuses, if any, that shall be
included in the Disclosure Package and to which the parties hereto have provided
their consent for use pursuant to Section 5(h) of the Standard
Provisions.
Schedule
IV hereto contains the final term sheet prepared for the Offering.
Schedule
V hereto contains a list of the Company’s Significant Subsidiaries.
[LIST OF
PROVISIONS AND DETAILS SPECIFIC TO THE OFFERING INCLUDING DETAILS WITH RESPECT
TO LANGUAGE REQUIRED BY THE STANDARD PROVISIONS]
All
provisions contained in the Standard Provisions are incorporated by reference
herein in their entirety, except as explicitly amended by this Underwriting
Agreement (including if any term defined in such Standard Provisions is
otherwise defined herein), and shall be deemed to be a part of this Underwriting
Agreement to the same extent as if such provisions had been set forth in full
herein.
This
Agreement may be signed in one or more counterparts, each of which shall
constitute an original and all of which together shall constitute one and the
same agreement.
If the
foregoing is in accordance with your understanding of our agreement, please sign
and return to us the enclosed duplicate hereof, whereupon this letter and your
acceptance shall represent a binding agreement among the Company and the several
Underwriters.
The
foregoing Underwriting Agreement is
hereby
confirmed and accepted
as of the
date specified in Schedule I hereto.
[Representative]
| By: |
[Representative]
|
||
| By: | |||
| Name: | |||
| Title: | |||
For
themselves and the other
several
Underwriters, if any,
named in
Schedule II to the
foregoing
Underwriting Agreement.
SCHEDULE
I
|
Underwriting
Agreement dated
|
|
Registration
Statement No.
|
|
Representative(s):
|
|
Title,
Purchase Price and Description of Securities:
|
|
Title:
|
|
Principal
amount:
|
|
Purchase
price (include accrued
|
|
interest
or amortization, if
|
|
any):
|
|
Sinking
fund provisions:
|
|
Redemption
provisions:
|
|
Other
provisions:
|
| Closing Date, Time and Location: , 20 at 10:00 a.m. at [name and |
|
address
of Underwriters’ counsel]
|
|
Type
of Offering:
|
Modification
of items to be covered by the letter from
Ernst
& Young LLP delivered pursuant to
Section
6(f) at the Execution Time:
SCHEDULE
II
| Underwriters |
Principal
Amount
of Securities
to
be
Purchased
|
|
| $ | ||
|
Total
|
$ |
Schedule
of Free Writing Prospectuses included in the Disclosure Package
[list all
FWPs included in the Disclosure Package]
SCHEDULE
IV
|
Issuer:
|
Patriot
Coal Corporation
|
|
Security
Type:
|
[
]
|
|
Size:
|
US$[
]
|
|
Maturity:
|
[
]
|
|
Coupon:
|
[
]%
per annum, accruing from
[
]
|
|
Price
to Public:
|
[
]%
of face amount
|
|
Yield
to maturity:
|
[
]%
|
|
Spread
to Benchmark Treasury:
|
[
]
|
|
Benchmark
Treasury:
|
[
]
|
|
Benchmark
Treasury Price and Yield:
|
[
]
|
|
Interest
Payment Dates:
|
[ ]
and [
],
commencing [
]
|
|
Redemption:
|
[
]
|
|
Trade
Date:
|
[
]
|
|
Settlement
Date:
|
[
]
|
|
Ratings:
|
[
]
|
|
Underwriters:
|
[
]
|
List of
Significant Subsidiaries
[list all
Significant Subsidiaries]
[FORM OF
OPINION FOR OUTSIDE COUNSEL OF THE COMPANY]
[date]
[Name[s]
of managing underwriter[s]]
as
Representative of the several Underwriters named in
Schedule
II to the Underwriting Agreement referred to below
[c/o][[name
of lead manager]]
[address
of lead manager]
Ladies
and Gentlemen:
We have
acted as special counsel for Patriot Coal Corporation, a Delaware corporation
(the “Company”), in connection with the Underwriting Agreement dated _______,
20__ (the “Underwriting Agreement”) with you and the other several Underwriters
named in Schedule II thereto under which you and such other Underwriters have
severally agreed to purchase from the Company $[insert principal amount]
aggregate principal amount of its [designation of security] (the “Securities”).
The Securities are to be issued pursuant to the provisions of the Indenture
dated as of _______, 20__ (the “Base Indenture”), as amended by a [insert
supplemental indenture number] supplemental indenture dated _______, 20__ (the
“[insert supplemental indenture number] Supplemental Indenture”) between the
Company and Wilmington Trust Company, as trustee (the “Trustee”). The Base
Indenture as amended by the [insert supplemental indenture number] Supplemental
Indenture is hereinafter referred to as the “Indenture”.
We have
examined originals or copies, certified or otherwise identified to our
satisfaction, of such documents, corporate records, certificates of public
officials and other instruments as we have deemed necessary or advisable for the
purpose of rendering this opinion.
We have
also reviewed the Company’s registration statement on Form S-3 (File No.
333-_____)
[and Amendments Nos. _____ thereto] (including the documents incorporated by
reference therein (the “Incorporated Documents”)) filed with the Securities and
Exchange Commission (the “Commission”) pursuant to the provisions of the
Securities Act of 1933, as amended (the “Act”), relating to the registration of
securities (the “Shelf Securities”) to be issued from time to time by the
Company and have participated in the preparation of the preliminary prospectus
supplement dated _______, 20__ (the “Preliminary Prospectus Supplement”)
relating to the Securities, [list free writing prospectuses, if any, that form
part of the Disclosure Package as defined in the Underwriting Agreement] and the
prospectus supplement dated _________, 20__
relating to the Securities (the “Prospectus Supplement”). In addition, we have
[examined evidence] [been advised by the staff of the Commission] that the
registration statement [as so amended] was declared effective under the Act and
the Indenture qualified under the Trust Indenture Act of 1939, as amended (the
“Trust Indenture Act”), on [insert date of effectiveness]. The registration
statement [as amended] at the date of the Underwriting Agreement, including the
Incorporated Documents and the information deemed to be part of the registration
statement
We have
assumed the conformity of the documents filed with the Commission via the
Electronic Data Gathering, Analysis and Retrieval System (“XXXXX”), except for
required XXXXX formatting changes, to physical copies of the documents submitted
for our examination.
Capitalized
terms used but not otherwise defined herein are used as defined in the
Underwriting Agreement.
Based
upon the foregoing, we are of the opinion that:
1. The
Indenture has been duly authorized, executed and delivered by the Company and is
a valid and binding agreement of the Company, enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency and similar laws affecting
creditors’ rights generally, concepts of reasonableness and equitable principles
of general applicability. [APPLICABLE CARVE-OUTS TO BE ADDED IF REQUIRED BASED
UPON SUPPLEMENTAL INDENTURES.]
2. The
Securities, when executed and authenticated in accordance with the provisions of
the Indenture and delivered to and paid for by the Underwriters pursuant to the
Underwriting Agreement, will be valid and binding obligations of the Company,
enforceable in accordance with their terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors’ rights generally, concepts of
reasonableness and equitable principles of general applicability, and will be
entitled to the benefits of the Indenture pursuant to which such Securities are
to be issued. [APPLICABLE CARVE OUTS TO BE ADDED IF REQUIRED BASED UPON SPECIFIC
TERMS OF THE SECURITIES.]
3. The
Underwriting Agreement has been duly authorized, executed and delivered by the
Company.
4. The
Company is not, and after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof as described in the
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.
5. [Except
as disclosed in the Prospectus, t][T]he execution and delivery by the Company
of, and the performance by the Company of its obligations under, the Indenture,
the Securities and the Underwriting Agreement (collectively, the “Documents”)
will not contravene (i) any
provision of the laws of the State of New York or any federal law of the United
States of America that in our experience is normally applicable to general
business corporations in relation to transactions of the type contemplated by
the Documents, or the General Corporation Law of the State of Delaware provided
that we express no opinion as to federal or state securities laws,
6. No
consent, approval, authorization, or order of, or qualification with, any
governmental body or agency under the laws of the State of New York or any
federal law of the United States of America that in our experience is normally
applicable to general business corporations in relation to transactions of the
type contemplated by the Documents, or the General Corporation Law of the State
of Delaware is required for the execution, delivery and performance by the
Company of its obligations under the Documents, except such as may be required
under federal or state securities or Blue Sky laws as to which we express no
opinion.
We have
considered the statements included in the Prospectus under the captions
“Description of Debt Securities” and “[Description of the Securities]” insofar
as they summarize provisions of the Indenture and the Securities. In our
opinion, such statements fairly summarize these provisions in all material
respects.
In
rendering the opinions in paragraphs (1) thru (3) above, we have assumed that
each party to the Documents has been duly incorporated and is validly existing
and in good standing under the laws of the jurisdiction of its organization. In
addition, we have assumed that (i) the execution, delivery and performance by
each party thereto of each Document to which it is a party, (a) are within its
corporate powers, (b) do not contravene, or constitute a default under, the
certificate of incorporation or bylaws or other constitutive documents of such
party, (c) require no action by or in respect of, or filing with, any
governmental body, agency or official and (d) do not contravene, or constitute a
default under, any provision of applicable law or regulation or any judgment,
injunction, order or decree or any agreement or other instrument binding upon
such party, provided that we make no such assumption to the extent that we have
specifically opined as to such matters with respect to the Company, and (ii)
each Document (other than the Underwriting Agreement) is a valid, binding and
enforceable agreement of each party thereto, (other than as expressly covered
above in respect of the Company).
We are
members of the Bar of the State of New York, and the foregoing opinion is
limited to the laws of the State of New York, the federal laws of the United
States of America and the General Corporation Law of the State of Delaware,
except that we express no opinion as to any law, rule or regulation that is
applicable to the Company, the Documents or such transactions solely because
such law, rule or regulation is part of a regulatory regime applicable to any
party to any of the Documents or any of its affiliates due to the specific
assets or business of such party or such affiliate.
This
opinion is rendered solely to you and the other several Underwriters in
connection with the Underwriting Agreement. This opinion may not be relied upon
by you for any other purpose or relied upon by any other person (including any
person acquiring Securities from the several Underwriters) or furnished to any
other person without our prior written consent.
|
Very
truly yours,
|
Form
of 10b-5 Statement of Outside Counsel for the Company
[date]
[Name[s]
of managing underwriter[s]]
as
Representative of the several Underwriters named in
Schedule
II to the Underwriting Agreement referred to below
[c/o][[name
of lead manager]]
[address
of lead manager]
Ladies
and Gentlemen:
We have
acted as special counsel for Patriot Coal Corporation, a Delaware corporation
(the “Company”), in connection with the Underwriting Agreement dated _______,
20__ (the “Underwriting Agreement”) with you and the other several Underwriters
named in Schedule II thereto under which you and such other Underwriters have
severally agreed to purchase from the Company $[insert principal amount]
aggregate principal amount of its [designation of security] (the “Securities”).
The Securities are to be issued pursuant to the provisions of the Indenture
dated as of _______, 20__ (the “Base
Indenture”), as amended by a [insert supplemental indenture number] supplemental
indenture dated _______, 20__ (the “[insert supplemental indenture number]
Supplemental Indenture”) between the Company and Wilmington Trust Company, as
trustee (the “Trustee”). The Base Indenture as amended by the [insert
supplemental indenture number] Supplemental Indenture is hereinafter referred to
as the “Indenture”.
We also
have reviewed the Company’s registration statement on Form S-3 (File No.
333-_____)
[and Amendments Nos. _____ thereto] (including the documents incorporated by
reference therein (the “Incorporated Documents”)) filed with the Securities and
Exchange Commission (the “Commission”) pursuant to the provisions of the
Securities Act of 1933, as amended (the “Act”), relating to the registration of
securities (the “Shelf Securities”) to be issued from time to time by the
Company and have participated in the preparation of the preliminary prospectus
supplement dated _______, 20__ (the “Preliminary Prospectus Supplement”)
relating to the Securities, [list free writing prospectuses, if any, that form
part of the Disclosure Package as defined in the Underwriting Agreement] and the
prospectus supplement dated _________, 20__
relating to the Securities (the “Prospectus Supplement”). The registration
statement [as amended] at the date of the Underwriting Agreement, including the
Incorporated Documents and the information deemed to be part of the registration
statement at the time of effectiveness pursuant to Rule 430B under the Act, is
hereinafter referred to as the “Registration Statement”, and the related
prospectus (including the Incorporated Documents) dated ____________, 20__
relating to the Shelf Securities is hereinafter referred to as the “Basic
Prospectus.” The Basic Prospectus, as supplemented by the Preliminary Prospectus
Supplement, together with the [free writing prospectus[es] set forth in Schedule
III to the Underwriting Agreement for the Securities] [information] are
hereinafter called the “Disclosure Package”. The Basic Prospectus,
as
supplemented
by the Prospectus Supplement, in the form first used to confirm sales of the
Securities (or in the form first made available by the Company to the
Underwriters to meet requests of purchasers of the Securities under Rule 173
under the Act), is hereinafter referred to as the “Prospectus”.
We have
assumed the conformity of the documents filed with the Commission via the
Electronic Data Gathering, Analysis and Retrieval System (“XXXXX”), except for
required XXXXX formatting changes, to physical copies of the documents submitted
for our examination.
The
primary purpose of our professional engagement was not to establish or confirm
factual matters or financial, accounting or quantitative information (including
information with respect to proven and probable coal reserves). Furthermore,
many determinations involved in the preparation of the Registration Statement,
the Disclosure Package and the Prospectus are of a wholly or partially non-legal
character or relate to legal matters outside the scope of our opinion separately
delivered to you today in respect of certain matters under the laws of the State
of New York, the federal laws of the United States of America and the General
Corporation Law of the State of Delaware. As a result, we are not passing upon,
and do not assume any responsibility for, the accuracy, completeness or fairness
of the statements contained in the Registration Statement, the Disclosure
Package and the Prospectus, and we have not ourselves checked the accuracy,
completeness or fairness of, or otherwise verified, the information furnished in
such documents (except to the extent expressly set forth in our opinion letter
separately delivered to you today as to statements included in the Prospectus
under the captions “Description of Debt Securities” and “[Description of the
Securities]”). However, in the course of our acting as counsel to the Company in
connection with the preparation of the Registration Statement, the Disclosure
Package and the Prospectus, we have generally reviewed and discussed with your
representatives and your counsel and with certain officers and employees of, and
independent public accountants for, the Company the information furnished,
whether or not subject to our check and verification. We have also reviewed and
relied upon certain corporate records and documents, letters from counsel and
accountants and oral and written statements of officers and other
representatives of the Company and others as to the existence and consequence of
certain factual and other matters.
Capitalized
terms used but not otherwise defined herein are used as defined in the
Underwriting Agreement.
On the
basis of the information gained in the course of the performance of the services
rendered above, but without independent check or verification except as stated
above:
(i) the
Registration Statement and the Prospectus appear on their face to be
appropriately responsive in all material respects to the requirements of the Act
and the applicable rules and regulations of the Commission thereunder;
and
(ii) nothing
has come to our attention that causes us to believe that, insofar as relevant to
the offering of the Securities:
(a) the
Registration Statement or the prospectus included therein at the time the
Registration Statement became effective and on the date of the Underwriting
Agreement,
(b) at the
Execution Time, the Disclosure Package contained any untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or
(c) the
Prospectus as of the date of the Underwriting Agreement or as of the date hereof
contained or contains any untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
In
providing this letter to you and the other several Underwriters, we have not
been called to pass upon, and we express no view regarding, the financial
statements or financial schedules or other financial or accounting data or
statements regarding proven and probable coal reserves included in the
Registration Statement, the Disclosure Package, the Prospectus, or the Statement
of Eligibility of the Trustee on Form T-1. In addition, we express no view as to
the conveyance of the Disclosure Package or the information contained therein to
investors.
This
letter is delivered solely to you and the other several Underwriters in
connection with the Underwriting Agreement. This letter may not be relied upon
by you for any other purpose or relied upon by any other person (including any
person acquiring Securities from the several Underwriters) or furnished to any
other person without our prior written consent.
|
Very
truly yours,
|
[FORM OF
OPINION OF COMPANY COUNSEL]
[date]
[Name[s]
of managing underwriter[s]]
as
Representative of the several Underwriters named in
Schedule
II to the Underwriting Agreement referred to below
[c/o][[name
of lead manager]]
[address
of lead manager]
Ladies
and Gentlemen:
I, Xxxxxx
X. Xxxx, am Senior Vice President and General Counsel of Patriot Coal
Corporation, a Delaware corporation (the “Company”). This opinion is delivered
in connection with the Underwriting Agreement dated _______, 20__ (the
“Underwriting Agreement”) with you and the other several Underwriters named in
Schedule II thereto under which you and such other Underwriters have severally
agreed to purchase from the Company $[insert principal amount] aggregate
principal amount of its [designation of security] (the “Securities”). The
Securities are to be issued pursuant to the provisions of the Indenture dated as
of _______, 20__ (the “Base Indenture”), as amended by a [insert supplemental
indenture number] supplemental indenture dated _______, 20__ (the “[insert
supplemental indenture number] Supplemental Indenture”) between the Company and
Wilmington Trust Company, as trustee (the “Trustee”). The Base Indenture as
amended by the [insert supplemental indenture number] Supplemental Indenture is
hereinafter referred to as the “Indenture”.
I have
examined originals or copies, certified or otherwise identified to my
satisfaction, of such documents, corporate records, certificates of public
officials and other instruments as I have deemed necessary or advisable for the
purpose of rendering this opinion.
Capitalized
terms used but not otherwise defined herein are used as defined in the
Underwriting Agreement.
Based
upon the foregoing, I am of the opinion that:
1. Each
of the Company and the Significant Subsidiaries listed on Schedule V to the
Underwriting Agreement (individually, a “Significant Subsidiary” and
collectively, the “Significant Subsidiaries”) has been duly incorporated or
organized and is validly existing as a corporation, limited liability company or
other entity in good standing under the laws of the jurisdiction in which it is
formed, with full corporate power and authority to own or lease, as the case may
be, and to operate its properties and conduct its business as described in the
Disclosure Package and the Final Prospectus, and is duly qualified to do
business as a foreign corporation and is in good standing under the laws of each
jurisdiction which requires such qualification,
2. There is
no pending or, to my knowledge, threatened action, suit or proceeding by or
before any court or governmental agency, authority or body or any arbitrator
involving the Company or any of the Significant Subsidiaries or its or their
property that (a) is within the scope of Item l03 of Regulation S-K under the
Securities Act and (b) is not described in the Disclosure Package and the Final
Prospectus; and the statements in the Preliminary Prospectus and the Final
Prospectus under the headings listed in the Underwriting Agreement fairly
summarize the matters therein described in all material respects.
3. Neither
the execution and delivery of the Indenture or the Underwriting Agreement, the
issuance and sale of the Securities, nor the consummation of any other of the
transactions therein contemplated, nor the fulfillment of the terms thereof,
will conflict with, result in a breach or violation of, or imposition of any
lien, charge or encumbrance upon any property or asset of the Company or of any
of its Significant Subsidiaries pursuant to any statute, law, rule, regulation,
judgment, order or decree applicable to the Company or any of the Significant
Subsidiaries of any court, regulatory body, administrative agency, governmental
body, arbitrator or other authority having jurisdiction over the Company, any of
the Significant Subsidiaries or any of their respective properties (including
any mining or environmental law, rule or regulation) or the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or instrument to
which the Company or its Significant Subsidiaries is a party or bound or to
which its or their property is subject.
The
foregoing opinion is limited to the federal laws of the United States of America
and the General Corporation Law of the State of Delaware.
This
opinion is rendered solely to you in connection with the Underwriting Agreement.
This opinion may not be relied upon by you for any other purpose or relied upon
by any other person (including any person acquiring Securities from the several
Underwriters) or furnished to any other person without my prior written
consent.
|
Very
truly yours,
|
