UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

Form 8-K

 

 

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d) OF

THE SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of earliest event reported): December 28, 2016

 

 

PEABODY ENERGY CORPORATION

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   1-16463   13-4004153

(State or Other Jurisdiction

of Incorporation)

 

(Commission

File Number)

 

(I.R.S. Employer

Identification No.)

701 Market Street, St. Louis, Missouri   63101-1826
(Address of Principal Executive Offices)   (ZIP Code)

Registrant’s telephone number, including area code: (314) 342-3400

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

☐ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

☐ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

☐ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 

Item 1.01 Entry into a Material Definitive Agreement

Background

As previously disclosed, on April 13, 2016, Peabody Energy Corporation, a Delaware corporation (the “Company” or “Peabody Energy”), and a majority of the Company’s wholly owned domestic subsidiaries, as well as one international subsidiary in Gibraltar (collectively with the Company, the “Debtors”), filed voluntary petitions under Chapter 11 of Title 11 of the U.S. Code (the “Bankruptcy Code”) in the United States Bankruptcy Court for the Eastern District of Missouri (the “Bankruptcy Court”). The Debtors’ Chapter 11 cases (collectively, the “Chapter 11 Cases”) are being jointly administered under the caption  In re Peabody Energy Corporation ,  et al. , Case No. 16-42529.

On December 22, 2016, the Debtors filed with the Bankruptcy Court a Joint Plan of Reorganization under Chapter 11 of the Bankruptcy Code (the “Plan”) and a related Disclosure Statement (the “Disclosure Statement”).

On December 23, 2016, the Company filed a motion (the “PSA Motion”) with the Bankruptcy Court seeking authority to enter into a plan support agreement (the “PSA”) with certain of its lenders and noteholders (collectively, the “PSA Signatories”) to effect an agreed upon restructuring of the Debtors’ obligations embodied in the Plan (the “Restructuring”). The Debtors have requested that the Bankruptcy Court hear the PSA Motion at the hearing currently scheduled for January 26, 2017 (the “PSA Hearing”).

Copies of the Plan and the Disclosure Statement are available free of charge at www.kccllc.net/Peabody

Bankruptcy law does not permit solicitation of acceptances of the Plan until the Bankruptcy Court approves the Disclosure Statement. Accordingly, nothing contained herein is intended to be, nor should it be construed as, a solicitation for a vote on the Plan. The Plan will become effective only if it is confirmed by the Bankruptcy Court. There can be no assurance that the Bankruptcy Court will confirm the Plan or that the Plan will be implemented successfully.

All information contained in the Disclosure Statement is subject to change, whether as a result of amendments to the Plan, actions of third parties or otherwise.

Amendment to Private Placement Agreement

In accordance with the Plan, the Company has agreed to conduct a private placement (the “Private Placement”) pursuant to the private placement agreement, dated as of December 22, 2016 (the “Private Placement Agreement”) among the Company and certain of the Company’s creditors (the “Private Placement Parties”). Pursuant to the Private Placement Agreement, the Private Placement Parties will have the right and obligation to purchase $750 million in the aggregate of newly created mandatory convertible preferred stock (“Preferred Equity”) of the reorganized company (“Reorganized PEC”) in a private placement exempt from registration pursuant to section 4(a)(2) of the Securities Act of 1933 (the “Securities Act”). The Debtors will seek approval of the Private Placement and the Private Placement Agreement as part of the PSA Motion at the PSA Hearing.

On December 28, 2016, the Company and the Private Placement Parties entered into Amendment No. 1 to the Private Placement Agreement to extend the deadline for certain of the Company’s creditors to become a Phase Two Private Placement Party (as defined in the Private Placement Agreement) to 5:00 p.m. New York City time on December 30, 2016.

The foregoing descriptions of the Private Placement and the Private Placement Agreement, as amended, do not purport to be complete and are qualified in their entirety by reference to the Private Placement Agreement, a copy of which was filed as Exhibit 10.2 to the Company’s Current Report on Form 8-K filed on December 23, 2016, and Amendment No. 1 thereto, a copy of which is filed as Exhibit 10.1 hereto and incorporated herein by reference.

 

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Amendment to Backstop Commitment Agreement

In accordance with the Plan, (i) the Company also has agreed to conduct a $750 million rights offering to eligible creditors for shares of common stock of Reorganized PEC (the “Rights Offering”) and (ii) the Rights Offering will be 100% backstopped by certain of the Company’s noteholders (the “Commitment Parties”), in each case on the terms and subject to the conditions described in the term sheet for the Plan (previously filed as Exhibit 99.1 to the Company’s Current Report on Form 8-K filed on December 23, 2016) and pursuant to the backstop commitment agreement, dated as of December 22, 2016 (the “Backstop Commitment Agreement”) among the Company and the Commitment Parties. The Debtors will seek approval of the Rights Offering and the Backstop Commitment Agreement as part of the PSA Motion at the PSA Hearing.

The rights to purchase shares of common stock of Reorganized PEC in the Rights Offering, any shares issued upon exercise thereof, and all shares issued to the Commitment Parties pursuant to the Backstop Commitment Agreement will be issued in reliance upon an exemption from registration under the Securities Act provided by Section 1145 of the Bankruptcy Code, Section 4(a)(2) of the Securities Act and/or Regulation D thereunder.

On December 28, 2016, the Company and the Commitment Parties entered into Amendment No. 1 to the Backstop Commitment Agreement to extend the deadline for certain of the Company’s creditors to become a Phase Two Commitment Party (as defined in the Backstop Commitment Agreement) to 5:00 p.m. New York City time on December 30, 2016.

The foregoing descriptions of the Rights Offering and the Backstop Commitment Agreement, as amended, do not purport to be complete and are qualified in their entirety by the Backstop Commitment Agreement, a copy of which was filed as Exhibit 10.3 to the Company’s Current Report on Form 8-K filed on December 23, 2016, and Amendment No. 1 thereto, a copy of which is filed as Exhibit 10.2 hereto and incorporated herein by reference.

 

Item 7.01 Regulation FD Disclosure

As of December 29, 2016, additional holders of approximately 0.8 percent of the outstanding principal amount of the Company’s senior secured second lien notes and approximately 3.5 percent of the outstanding principal amount of the Company’s senior unsecured notes became parties to the PSA and joined the Backstop Commitment Agreement and the Private Placement Agreement as Phase Two parties.

When combined with the holdings of the creditors party to the PSA, the Backstop Commitment Agreement and the Private Placement Agreement through December 28, 2016, holders of approximately 38.1 percent of the Company’s outstanding first lien debt are parties to the PSA, and holders of approximately 65.4 percent of the outstanding principal amount of the Company’s senior secured second lien notes and 68.7 percent of the outstanding principal amount of the Company’s senior unsecured notes are parties to each of the PSA and the Backstop Commitment Agreement.

In addition, a copy of the press release the Company issued to provide an update regarding the Plan is attached hereto as Exhibit 99.1 and is incorporated herein by reference. The information set forth in and incorporated into this Item 7.01 of this Current Report on Form 8-K is being furnished pursuant to Item 7.01 of Form 8-K and shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference into any of Peabody Energy’s filings under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, whether made before or after the date hereof and regardless of any general incorporation language in such filings, except to the extent expressly set forth by specific reference in such a filing. The filing of this Item 7.01 of this Current Report on Form 8-K shall not be deemed an admission as to the materiality of any information herein that is required to be disclosed solely by reason of Regulation FD.

Cautionary Note Regarding Forward-Looking Statements

This Current Report and the related exhibits contain forward-looking statements as that term is defined in the Private Securities Litigation Reform Act of 1995. These forward-looking statements include statements that relate to the intent, beliefs, plans or expectations of Peabody Energy or its management at the time of this Current Report, as well as any estimates or projections for the outcome of events that have not yet occurred at the time of this Current Report. All statements other than statements of historical fact are forward-looking statements. Forward-looking statements include expressions such as “believe” “anticipate,” “expect,” “estimate,” “intend,” “may,” “plan,” “predict,” “will” and similar terms and expressions. All forward-looking statements made by Peabody Energy are predictions and not guarantees of future performance and are subject to various risks, uncertainties and factors

 

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relating to Peabody Energy’s operations and business environment, and the progress of its Chapter 11 Cases, all of which are difficult to predict and many of which are beyond Peabody Energy’s control. These risks, uncertainties and factors could cause Peabody Energy’s actual results to differ materially from those matters expressed in or implied by these forward-looking statements. Such factors include, but are not limited to: those described under the “Risk Factors” section and elsewhere in Peabody Energy’s most recently filed Annual Report on Form 10-K and subsequent filings with the SEC, including its Quarterly Reports on Form 10-Q for the quarters ended March 31, 2016 and June 30, 2016, which are available on Peabody Energy’s website at www.peabodyenergy.com and on the SEC’s website at www.sec.gov, such as unfavorable economic, financial and business conditions, as well as risks and uncertainties relating to the Chapter 11 Cases, including, but not limited to:

 

  •   Peabody Energy’s ability to obtain Bankruptcy Court approval with respect to the Plan, the Disclosure Statement, the PSA, the Backstop Commitment Agreement, motions or other requests made to the Bankruptcy Court in the Chapter 11 Cases, including maintaining strategic control as debtor-in-possession;

 

  •   Peabody Energy’s ability to confirm and consummate the Plan;

 

  •   the effects of the Chapter 11 Cases on Peabody Energy’s operations, including customer, supplier, banking, insurance and other relationships and agreements, and relationships with third parties, regulatory authorities and employees;

 

  •   Bankruptcy Court rulings in the Chapter 11 Cases, as well as the outcome of all other pending litigation and the outcome of the Chapter 11 Cases in general;

 

  •   the length of time that Peabody Energy will operate under Chapter 11 protection and the continued availability of operating capital during the pendency of the proceedings;

 

  •   the risks associated with third-party motions in the Chapter 11 Cases, which may interfere with Peabody Energy’s ability to confirm and consummate the Plan and restructuring generally;

 

  •   increased advisory costs to execute the Plan and increased administrative and legal costs related to the Chapter 11 Cases and other litigation and the inherent risks involved in a bankruptcy process;

 

  •   the impact of the New York Stock Exchange’s delisting of Peabody Energy’s common stock on the liquidity and market price of Peabody Energy’s common stock and on Peabody Energy’s ability to access the public capital markets;

 

  •   the likelihood that Peabody Energy’s common stock will be cancelled and extinguished upon confirmation of the proposed Plan with no payments made to the holders of Peabody Energy’s common stock;

 

  •   the volatility of the trading price of Peabody Energy’s common stock and the absence of correlation between any increases in the trading price and its expectation that the common stock will be cancelled and extinguished upon confirmation of the proposed Plan with no payments made to the holders of Peabody Energy’s common stock;

 

  •   Peabody Energy’s ability to continue as a going concern in the long-term, including Peabody Energy’s ability to confirm the Plan that restructures Peabody Energy’s debt obligations to address Peabody Energy’s liquidity issues and allow emergence from the Chapter 11 Cases;

 

  •   Peabody Energy’s ability to maintain adequate debtor-in-possession financing or use cash collateral;

 

  •   the potential adverse effects of the Chapter 11 Cases on Peabody Energy’s liquidity, results of operations, or business prospects;

 

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  •   the cost, availability and access to capital and financial markets, including the ability to secure new financing upon and after emerging from the Chapter 11 Cases;

 

  •   the risk that the Chapter 11 Cases will disrupt or impede Peabody Energy’s international operations, including the Australian operations;

and other risks and uncertainties. Forward-looking statements made by Peabody Energy in this Current Report, or elsewhere, speak only as of the date on which the statements were made. New risks and uncertainties arise from time to time, and it is not possible for Peabody Energy to predict all of these events or how they may affect it or its anticipated results. Peabody Energy does not undertake any obligation to publicly update any forward-looking statements except as may be required by law. In light of these risks and uncertainties, readers should keep in mind that the events referenced by any forward-looking statements made in this Current Report and the related exhibits may not occur and should not place undue reliance on any forward-looking statements.

 

Item 9.01 Financial Statements and Exhibits

(d) Exhibits.

 

Exhibit Number

  

Description

10.1    Amendment No. 1 to Private Placement Agreement dated as of December 28, 2016
10.2    Amendment No. 1 to Backstop Commitment Agreement dated as of December 28, 2016
99.1    Press Release of Peabody Energy Corporation dated December 29, 2016

 

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SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

  PEABODY ENERGY CORPORATION
December 30, 2016   By:  

/s/ A. Verona Dorch

   

Name:

Title:

 

A. Verona Dorch

Chief Legal Officer

EXHIBIT INDEX

 

Exhibit Number

  

Description

10.1    Amendment No. 1 to Private Placement Agreement dated as of December 28, 2016
10.2    Amendment No. 1 to Backstop Commitment Agreement dated as of December 28, 2016
99.1    Press Release of Peabody Energy Corporation dated December 29, 2016

Exhibit 10.1

EXECUTION VERSION

AMENDMENT TO PRIVATE PLACEMENT AGREEMENT

THIS AMENDMENT TO THE PRIVATE PLACEMENT AGREEMENT (this “ Amendment ”), is made and entered into as December 28, 2016, by and among Peabody Energy Corporation, a Delaware corporation (the “ Company ”) on behalf of itself and each of its direct and indirect debtor subsidiaries (each a “ Debtor ” and, collectively, the “ Debtors ” and, together with their non-Debtor affiliates, the “ Company Group ”) on the one hand, and each Noteholder Co-Proponent (as defined in the Private Placement Agreement (as defined below)) that is a Party hereto, on the other hand. The Company and each Noteholder Co-Proponent is referred to herein, individually, as a “ Party ” and, collectively, as the “ Parties ”.

RECITALS:

WHEREAS, the Company and the Private Placement Parties have executed that certain Private Placement Agreement, dated December 22, 2016 (the “ Private Placement Agreement ”); and

WHEREAS, the Parties desire to amend certain provisions of the Private Placement Agreement pursuant to the terms hereof.

NOW, THEREFORE, in consideration of the forgoing recitals and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:

1. A MENDMENT TO S ECTION  1.1 . Section 1.1 (Definitions) of the Private Placement Agreement is hereby amended by substituting the definition of the term of Phase Two Party Outside Date with the following:

“ Phase Two Party Outside Date ” means the date that is December 30, 2016 and by which the relevant party has executed this Agreement or a Joinder Agreement.

2. A MENDMENT TO S ECTION  2.3(a) . Section 2.3(a) is struck in its entirety and replaced with the following:

(a) Additional Private Placement Parties . Holders of Allowed Second Lien Notes Claims and Allowed Class 5B Claims may, in their sole discretion, elect to participate in the rights and obligations set forth by this Agreement as an Additional Private Placement Party (to the extent they meet the qualifications set forth in the definition of such term) until the date that is twenty (20) Business Days following the Debtors’ filing of the PPA and BCA Approval Motion (the “ Private Placement Enrollment Outside Date ”). All holders of Eligible Private Placement Claims electing to become Additional Private Placement Parties must execute and deliver to the Company and the Claims and Balloting Agent a joinder to this Agreement pursuant to an agreement in substantially the form attached as Exhibit B hereto or otherwise in form and substance reasonably acceptable to the Company (a “ Joinder Agreement ”), a joinder to the Backstop Commitment Agreement in the form set forth by the Backstop Commitment Agreement and a joinder to the Plan Support Agreement. Any Additional Private Placement Parties that become a Private Placement Party pursuant to this Section 2.3(a) by 5:00 p.m. New York City time on December 30, 2016 following the execution of this Agreement (excluding any Defaulting Private Placement Party) is deemed to be a “ Phase Two Private Placement

Party ”. Each Phase Two Private Placement Party shall report its Phase Two Party Claim Amount, and each Additional Private Placement Party shall report its Additional Party Claim Amount, to the Claims and Balloting Agent promptly after becoming a Phase Two Private Placement Party or Additional Private Placement Party, as the case may be, but in no event later than the Private Placement Enrollment Outside Date.

3. E FFECT ON T HE P RIVATE P LACEMENT A GREEMENT . Except as expressly set forth in this Amendment, this Amendment shall not constitute an amendment or waiver of any other provisions of the Private Placement Agreement. The Private Placement Agreement as specifically modified by this Amendment is, and shall continue to be, in full force and effect and is hereby in all respects ratified and confirmed. Each reference in the Private Placement Agreement to “this Agreement,” “herein”, “hereunder,” “hereof” or words of like import referring to the Private Placement Agreement shall mean and be a reference to the Private Placement as modified by this Amendment.

4. D EFINED T ERMS . Capitalized terms used but not otherwise defined herein shall have the meaning ascribed to them in the Private Placement Agreement.

5. I NCORPORATED P ROVISIONS . Section 10.2, Section 10.4, Section 10.5 and Section 10.6 of the Private Placement Agreement are hereby incorporated by reference herein mutatis mutandis .

[Signature Page Follows]

 

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IN WITNESS WHEREOF, and intending to be legally bound, the undersigned have executed this Amendment as of the date first mentioned above.

 

PEABODY ENERGY CORPORATION
By:   /s/ A. Verona Dorch
Name:   A. Verona Dorch
Title:   Executive VP and Chief Legal Officer

[Signature Page to the Amendment to Private Placement Agreement]

Contrarian Capital Fund I, L.P.
By: Contrarian Capital Management, L.L.C.
Its:  Investment Manager
By:   /s/ Jon Bauer
  Name: Jon Bauer
  Title:   Managing Member
Notice Information
411 West Putnam Avenue, Suite 425
Greenwich, CT 06830
Email address: jweisser@contrariancapital.com
Attention to: Josh Weisser

[ Signature page to Amendment to Private Placement Commitment Agreement ]

CCM Pension-A, L.L.C.
By: Contrarian Capital Management, L.L.C.
Its:  Managing Member
By:   /s/ Jon Bauer
  Name: Jon Bauer
  Title:   Managing Member
Notice Information
411 West Putnam Avenue, Suite 425
Greenwich, CT 06830
Email address: jweisser@contrariancapital.com
Attention to: Josh Weisser

[ Signature page to Amendment to Private Placement Commitment Agreement ]

CCM Pension-B, L.L.C.
By: Contrarian Capital Management, L.L.C.
Its:  Managing Member
By:   /s/ Jon Bauer
  Name: Jon Bauer
  Title:   Managing Member
Notice Information
411 West Putnam Avenue, Suite 425
Greenwich, CT 06830
Email address: jweisser@contrariancapital.com
Attention to: Josh Weisser

[ Signature page to Amendment to Private Placement Commitment Agreement ]

 

Contrarian Dome du Gouter Master Fund, LP
By: Contrarian Capital Management, L.L.C.
Its:  Investment Manager
By:   /s/ Jon Bauer
  Name: Jon Bauer
  Title:   Managing Member
Notice Information
411 West Putnam Avenue, Suite 425
Greenwich, CT 06830
Email address: jweisser@contrariancapital.com
Attention to: Josh Weisser

[ Signature page to Amendment to Private Placement Commitment Agreement ]

Contrarian Opportunity Fund, L.P.
By: Contrarian Capital Management, L.L.C.
Its:  Investment Manager
By:   /s/ Jon Bauer
  Name: Jon Bauer
  Title:   Managing Member
Notice Information
411 West Putnam Avenue, Suite 425
Greenwich, CT 06830
Email address: jweisser@contrariancapital.com
Attention to: Josh Weisser

[ Signature Page to the Amendment to Private Placement Agreement ]

Contrarian Capital Senior Secured, L.P.
By: Contrarian Capital Management, L.L.C.
Its:  Investment Manager
By:   /s/ Jon Bauer
  Name: Jon Bauer
  Title:   Managing Member
Notice Information
411 West Putnam Avenue, Suite 425
Greenwich, CT 06830
Email address: jweisser@contrariancapital.com
Attention to: Josh Weisser

[ Signature Page to the Amendment to Private Placement Commitment Agreement ]

Contrarian Capital Trade Claims, L.P.
By: Contrarian Capital Management, L.L.C.
Its:  Investment Manager
By:   /s/ Jon Bauer
  Name: Jon Bauer
  Title:   Managing Member
Notice Information
411 West Putnam Avenue, Suite 425
Greenwich, CT 06830
Email address: jweisser@contrariancapital.com
Attention to: Josh Weisser

[ Signature Page to the Amendment to Private Placement Commitment Agreement ]

Contrarian Advantage-B, LP
By: Contrarian Capital Management, L.L.C.
Its:  General Partner
By:   /s/ Jon Bauer
  Name: Jon Bauer
  Title:   Managing Member
Notice Information
411 West Putnam Avenue, Suite 425
Greenwich, CT 06830
Email address: jweisser@contrariancapital.com
Attention to: Josh Weisser

[ Signature page to Amendment to Private Placement Commitment Agreement ]

Contrarian Emerging Markets, L.P.
By: Contrarian Capital Management, L.L.C.
Its:  Investment Manager
By:   /s/ Jon Bauer
  Name: Jon Bauer
  Title:   Managing Member
Notice Information
411 West Putnam Avenue, Suite 425
Greenwich, CT 06830
Email address: jweisser@contrariancapital.com
Attention to: Josh Weisser

[ Signature page to Amendment to Private Placement Commitment Agreement ]

Contrarian EM SIF Master L.P.
By: Contrarian Capital Management, L.L.C.
Its:  Investment Manager
By:   /s/ Jon Bauer
  Name: Jon Bauer
  Title:   Managing Member
Notice Information
411 West Putnam Avenue, Suite 425
Greenwich, CT 06830
Email address: jweisser@contrariancapital.com
Attention to: Josh Weisser

[ Signature page to Amendment to Private Placement Commitment Agreement ]

Boston Patriot Summer St LLC
By: Contrarian Capital Management, L.L.C.
Its:  Investment Manager
By:   /s/ Jon Bauer
  Name: Jon Bauer
  Title:   Managing Member
Notice Information
411 West Putnam Avenue, Suite 425
Greenwich, CT 06830
Email address: jweisser@contrariancapital.com
Attention to: Josh Weisser

[ Signature page to Amendment to Private Placement Commitment Agreement ]

BlockHouse Master Fund LP
By:   /s/ Alfred J. Barbagallo
  Name: Alfred J. Barbagallo
  Title:   Managing Director & General Counsel
Notice Information
40 West 57 th Street, 25 th Floor
New York, NY 10019
compliance@pointstate.com

[ Signature page to Amendment to Private Placement Agreement ]

 

Conflux Fund LP
By:   /s/ Alfred J. Barbagallo
  Name: Alfred J. Barbagallo
  Title:   Managing Director & General Counsel
Notice Information
40 West 57 th Street, 25 th Floor
New York, NY 10019
compliance@pointstate.com

[ Signature page to Amendment to Private Placement Agreement ]

SteelMill Master Fund LP
By:   /s/ Alfred J. Barbagallo
  Name: Alfred J. Barbagallo
  Title:   Managing Director & General Counsel
Notice Information
40 West 57 th Street, 25 th Floor
New York, NY 10019
compliance@pointstate.com

[ Signature page to Amendment to Private Placement Agreement ]

PointState Fund LP
By:   /s/ Alfred J. Barbagallo
  Name: Alfred J. Barbagallo
  Title:   Managing Director & General Counsel
Notice Information
40 West 57 th Street, 25 th Floor
New York, NY 10019
compliance@pointstate.com

[ Signature page to Amendment to Private Placement Agreement ]

Panning Master Fund, LP
By: Panning Capital Management, LP
Its:   Investment Manager
By:   /s/ William Kelly
  Name: William Kelly
  Title:   Authorized Signatory
Notice Information
510 Madison Avenue, 23 rd Floor
New York, NY 10022
rayan@panning.com
Attention to: Rayan Joshi

Signature Page to Amendment to Private Placement Commitment Agreement

SOUTH DAKOTA INVESTMENT COUNCIL
By:   /s/ Matthew L. Clark
Name:   Matthew L. Clark
Title:   State Investment Officer
Address:   South Dakota Investment Council
  4009 West 49 th Street, Suite 300
  Sioux Falls, SD 57106-3784
Tel:   605-362-2820
Email:   Laurie.Riss@state.sd.us
Attn:   A. Laurie Riss

[Signature Page to Amendment to Private Placement Commitment Agreement]

DISCOVERY CAPITAL MANAGEMENT, LLC
By:   /s/ Adam Schreck
Name:   Adam Schreck
Title:   General Counsel
Address:   20 Marshall Street, Suite 310
  South Norwalk, CT 06854
Attn:   Adam Schreck
  aschreck@discap.com
Tel:   (203) 956-7953

[Signature Page to the Amendment to Private Placement Agreement]

BLUE TURTLE CAPITAL, LLC, a Delaware Limited Liability Company
By:   /s/ Elliot Greenberg
  Name: Elliot Greenberg
  Title:   Vice President
BLUE TURTLE CAPITAL LIMITED, a Cayman Islands Limited Company
By:   /s/ Elliot Greenberg
  Name: Elliot Greenberg
  Title:   Vice President
Notice Information
Kramer Levin Naftalis & Frankel LLP
1177 Avenue of the Americas
New York, NY 10036
Email: KEckstein@kramerlevin.com;
       SZide@kramerlevin.com
       ADove@kramerlevin.com
Attention: Kenneth H. Eckstein, Esq.,
             Stephen D. Zide, Esq.,
             and Andrew M. Dove, Esq.

[Signature Page to the Amendment to Private Placement Agreement]

AURELIUS CAPITAL MASTER, LTD.
By:   Aurelius Capital Management, LP, solely as
  investment manager and not in its individual capacity
By:   /s/ Richard Petrilli
  Name: Richard Petrilli
  Title:   Chief Financial Officer
ACP MASTER, LTD.
By:   Aurelius Capital Management, LP, solely as investment manager and not in its individual capacity
By:   /s/ Richard Petrilli
  Name: Richard Petrilli
  Title:   Chief Financial Officer
Notice Information
Kramer Levin Naftalis & Frankel LLP
1177 Avenue of the Americas
New York, NY 10036
Email: KEckstein@kramerlevin.com;
       SZide@kramerlevin.com
       ADove@kramerlevin.com
Attention: Kenneth H. Eckstein, Esq.,
             Stephen D. Zide, Esq.,
             and Andrew M. Dove, Esq.

[Signature Page to the Amendment to Private Placement Agreement]

Exhibit 10.2

EXECUTION VERSION

AMENDMENT TO BACKSTOP COMMITMENT AGREEMENT

THIS AMENDMENT TO THE BACKSTOP COMMITMENT AGREEMENT (this “ Amendment ”), is made and entered into as December 28, 2016, by and among Peabody Energy Corporation, a Delaware corporation (the “ Company ”) on behalf of itself and each of its direct and indirect debtor subsidiaries (each a “ Debtor ” and, collectively, the “ Debtors ” and, together with their non-Debtor affiliates, the “ Company Group ”) on the one hand, and each Noteholder Co-Proponent (as defined in the Backstop Commitment Agreement (as defined below)) that is a Party hereto, on the other hand. The Company and each Noteholder Co-Proponent is referred to herein, individually, as a “ Party ” and, collectively, as the “ Parties ”.

RECITALS:

WHEREAS, the Company and the Commitment Parties have executed that certain Backstop Commitment Agreement, dated December 22, 2016 (the “ Backstop Commitment Agreement ”); and

WHEREAS, the Parties desire to amend certain provisions of the Backstop Commitment Agreement pursuant to the terms hereof.

NOW, THEREFORE, in consideration of the forgoing recitals and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:

1. A MENDMENT TO S ECTION 1.1. Section 1.1 (Definitions) of the Backstop Commitment Agreement is hereby amended by substituting the definition of the term of Phase Two Party Outside Date with the following:

“ Phase Two Party Outside Date ” means the date that is December 30, 2016 and by which the relevant party has executed this Agreement or a Joinder Agreement.

2. A MENDMENT TO S ECTION 2.3(a) . Section 2.3(a) is struck in its entirety and replaced with the following:

(a) Additional Commitment Parties . Holders of Allowed Second Lien Notes Claims and Allowed Class 5B Claims may, in their sole discretion, elect to participate in the rights and obligations set forth by this Agreement as an Additional Commitment Party (to the extent they meet the qualifications set forth in the definition of such term) until the date that is twenty (20) Business Days following the Debtors’ filing of the PPA and BCA Approval Motion (the “ Backstop Enrollment Outside Date ”). All holders of Eligible Backstop Claims electing to become Additional Commitment Parties must execute a joinder to this Agreement pursuant to an agreement in substantially the form attached as Exhibit B hereto or otherwise in form and substance reasonably acceptable to the Company (a “ Joinder Agreement ”) and a joinder to the Plan Support Agreement. Any Additional Commitment Parties that become a Commitment Party pursuant to this Section 2.3(a) by 5:00 p.m. New York City time on December 30, 2016 following the execution of this Agreement (excluding any Defaulting Commitment Party) is deemed to be a “ Phase Two Commitment Party ”. Each Phase Two Commitment Party shall report its Phase Two Party Claim Amount, and each Additional Commitment Party shall report its Additional Commitment Party Claim Amount, to the Claims and Balloting Agent promptly after becoming a Phase Two Commitment Party or Additional Commitment Party, as the case may be, but in no event later than the Backstop Enrollment Outside Date.

3. E FFECT ON T HE B ACKSTOP C OMMITMENT A GREEMENT . Except as expressly set forth in this Amendment, this Amendment shall not constitute an amendment or waiver of any other provisions of the Backstop Commitment Agreement. The Backstop Commitment Agreement as specifically modified by this Amendment is, and shall continue to be, in full force and effect and is hereby in all respects ratified and confirmed. Each reference in the Backstop Commitment Agreement to “this Agreement,” “herein”, “hereunder,” “hereof” or words of like import referring to the Backstop Commitment Agreement shall mean and be a reference to the Backstop Commitment Agreement as modified by this Amendment.

4. D EFINED T ERMS . Capitalized terms used but not otherwise defined herein shall have the meaning ascribed to them in the Backstop Commitment Agreement.

5. I NCORPORATED P ROVISIONS . Section 10.2, Section 10.4, Section 10.5 and Section 10.6 of the Backstop Commitment Agreement are hereby incorporated by reference herein mutatis mutandis .

[Signature Page Follows]

 

2

IN WITNESS WHEREOF, and intending to be legally bound, the undersigned have executed this Amendment as of the date first mentioned above.

 

PEABODY ENERGY CORPORATION  
By:  

/s/ A. Verona Dorch

 
Name:   A. Verona Dorch  
Title:   Executive VP and Chief Legal Officer  

[ Signature Page to the Amendment to Backstop Commitment Agreement ]

Contrarian Capital Fund I, L.P.
By:   Contrarian Capital Management, L.L.C.
Its:   Investment Manager
By:  

/s/ Jon Bauer

  Name: Jon Bauer
  Title:   Managing Member

Notice Information

 

411 West Putnam Avenue, Suite 425

Greenwich, CT 06830

 

Email address: jweisser@contrariancapital.com

 

Attention to: Josh Weisser

[ Signature page to Amendment to Backstop Commitment Agreement ]

CCM Pension-A, L.L.C.
By:   Contrarian Capital Management, L.L.C.
Its:   Managing Member
By:  

/s/ Jon Bauer

  Name: Jon Bauer
  Title:   Managing Member

Notice Information

 

411 West Putnam Avenue, Suite 425

Greenwich, CT 06830

 

Email address: jweisser@contrariancapital.com

 

Attention to: Josh Weisser

[ Signature page to Amendment to Backstop Commitment Agreement ]

CCM Pension-B, L.L.C.
By:   Contrarian Capital Management, L.L.C.
Its:   Managing Member
By:  

/s/ Jon Bauer

  Name: Jon Bauer
  Title:   Managing Member

Notice Information

 

411 West Putnam Avenue, Suite 425

Greenwich, CT 06830

 

Email address: jweisser@contrariancapital.com

 

Attention to: Josh Weisser

[ Signature page to Amendment to Backstop Commitment Agreement ]

Contrarian Dome du Gouter Master Fund, LP

 

By: Contrarian Capital Management, L.L.C.

Its:  Investment Manager

By:

              /s/ Jon Bauer
 

Name: Jon Bauer

 

Title:    Managing Member

Notice Information

411 West Putnam Avenue, Suite 425

Greenwich, CT 06830

Email address: jweisser@contrariancapital.com

Attention to: Josh Weisser

[ Signature page to Amendment to Backstop Commitment Agreement ]

Contrarian Opportunity Fund, L.P.

 

By: Contrarian Capital Management, L.L.C.

Its:  Investment Manager

By:

  /s/ Jon Bauer
 

Name: Jon Bauer

 

Title:    Managing Member

Notice Information

411 West Putnam Avenue, Suite 425

Greenwich, CT 06830

Email address: jweisser@contrariancapital.com

Attention to: Josh Weisser

[ Signature page to Amendment to Backstop Commitment Agreement ]

Contrarian Capital Senior Secured, L.P.

 

By: Contrarian Capital Management, L.L.C.

Its:  Investment Manager

By:

  /s/ Jon Bauer
 

Name: Jon Bauer

 

Title:    Managing Member

Notice Information

411 West Putnam Avenue, Suite 425

Greenwich, CT 06830

Email address: jweisser@contrariancapital.com

Attention to: Josh Weisser

[ Signature page to Amendment to Backstop Commitment Agreement ]

Contrarian Capital Trade Claims, L.P.

 

By: Contrarian Capital Management, L.L.C.

Its:  Investment Manager

By:

  /s/ Jon Bauer
 

Name: Jon Bauer

 

Title:    Managing Member

Notice Information

411 West Putnam Avenue, Suite 425

Greenwich, CT 06830

Email address: jweisser@contrariancapital.com

Attention to: Josh Weisser

[ Signature page to Amendment to Backstop Commitment Agreement ]

Contrarian Advantage-B, LP

 

By: Contrarian Capital Management, L.L.C.

Its:  General Partner

By:

  /s/ Jon Bauer
 

Name: Jon Bauer

 

Title:    Managing Member

Notice Information

411 West Putnam Avenue, Suite 425

Greenwich, CT 06830

Email address: jweisser@contrariancapital.com

Attention to: Josh Weisser

[ Signature page to Amendment to Backstop Commitment Agreement ]

Contrarian Emerging Markets, L.P.

 

By: Contrarian Capital Management, L.L.C.

Its:  Investment Manager

By:

  /s/ Jon Bauer
 

Name: Jon Bauer

 

Title:    Managing Member

Notice Information

411 West Putnam Avenue, Suite 425

Greenwich, CT 06830

Email address: jweisser@contrariancapital.com

Attention to: Josh Weisser

[ Signature page to Amendment to Backstop Commitment Agreement ]

Contrarian EM SIF Master L.P.

 

By: Contrarian Capital Management, L.L.C.

Its:  Investment Manager

By:

  /s/ Jon Bauer
 

Name: Jon Bauer

 

Title:    Managing Member

Notice Information

411 West Putnam Avenue, Suite 425

Greenwich, CT 06830

Email address: jweisser@contrariancapital.com

Attention to: Josh Weisser

[ Signature page to Amendment to Backstop Commitment Agreement ]

Boston Patriot Summer St LLC

 

By: Contrarian Capital Management, L.L.C.

Its:  Investment Manager

By:

  /s/ Jon Bauer
 

Name: Jon Bauer

 

Title:    Managing Member

Notice Information

411 West Putnam Avenue, Suite 425

Greenwich, CT 06830

Email address: jweisser@contrariancapital.com

Attention to: Josh Weisser

[ Signature page to Amendment to Backstop Commitment Agreement ]

BlockHouse Master Fund LP
By:  

/s/ Alfred J. Barbagallo

  Name:   Alfred J. Barbagallo
  Title:   Managing Director & General Counsel
Notice Information

40 West 57th Street, 25 th Floor

New York, NY 10019

Compliance@pointstate.com

Alfred J. Barabgallo

[ Signature page to Amendment to Backstop Commitment Agreement ]

Conflux Fund LP
By:  

/s/ Alfred J. Barbagallo

  Name:   Alfred J. Barbagallo
  Title:   Managing Director & General Counsel
Notice Information

40 West 57th Street, 25 th Floor

New York, NY 10019

Compliance@pointstate.com

Alfred J. Barabgallo

[ Signature page to Amendment to Backstop Commitment Agreement ]

SteelMill Master Fund LP
By:  

/s/ Alfred J. Barbagallo

  Name:   Alfred J. Barbagallo
  Title:   Managing Director & General Counsel
Notice Information

40 West 57th Street, 25 th Floor

New York, NY 10019

Compliance@pointstate.com

Alfred J. Barabgallo

[ Signature page to Amendment to Backstop Commitment Agreement ]

PointState Fund LP
By:  

/s/ Alfred J. Barbagallo

  Name:   Alfred J. Barbagallo
  Title:   Managing Director & General Counsel
Notice Information

40 West 57th Street, 25 th Floor

New York, NY 10019

Compliance@pointstate.com

Alfred J. Barabgallo

[ Signature page to Amendment to Backstop Commitment Agreement ]

Panning Master Fund, LP
By:   Panning Capital Management, LP
Its:   Investment Manager
By:   /s/ William Kelly
 

Name:  William Kelly

Title:    Authorized Signatory

Notice Information

 

510 Madison Avenue, 23rd Floor

New York, NY 10022

 

rayan@panning.com

 

Attention to: Rayan Joshi

Signature page to Amendment to Backstop Commitment Agreement

SOUTH DAKOTA INVESTMENT COUNCIL
By:  

/s/ Matthew L. Clark

Name:  Matthew L. Clark

Title:  State Investment Officer

Address:   

South Dakota Investment Council

4009 West 49 th Street, Suite 300

Sioux Falls, SD 57106-3784

Tel:    605-362-2820
Email:    Laurie.Riss@state.sd.us
Attn:    A. Laurie Riss

[ Signature page to Amendment to Backstop Commitment Agreement ]

    DISCOVERY CAPITAL MANAGEMENT, LLC

 

By:  

/s/ Adam Schreck

Name:  Adam Schreck

Title:  General Counsel

Address:   

20 Marshall Street, Suite 310

South Norwalk, CT 06854

Attn:    Adam Schreck
   aschreck@discap.com
Tel:    (203) 956-7953

[Signature page to Amendment to Backstop Commitment Agreement]

BLUE TURTLE CAPITAL, LLC, a Delaware Limited

Liability Company

By:   /s/ Elliot Greenberg                    
 

        Name:  Elliot Greenberg

        Title:    Vice President

BLUE TURTLE CAPITAL LIMITED, a Cayman Islands

Limited Company

By:   /s/ Elliot Greenberg                    
 

Name:  Elliot Greenberg

Title:    Vice President

Notice Information

Kramer Levin Naftalis & Frankel LLP

1177 Avenue of the Americas

New York, NY 10036

Email: KEckstein@kramerlevin.com;

            SZide@kramerlevin.com

            ADove@kramerlevin.com

Attention:        Kenneth H. Eckstein, Esq.,

                        Stephen D. Zide, Esq.,

                        and Andrew M. Dove, Esq.

[Signature Page to the Amendment to Backstop Commitment Agreement]

AURELIUS CAPITAL MASTER, LTD.

By: Aurelius Capital Management, LP, solely as

       investment manager and not in its individual capacity

By:   /s/ Richard Petrilli                                                         

    Name:  Richard Petrilli

    Title:    Chief Financial Officer

ACP MASTER, LTD.

By: Aurelius Capital Management, LP, solely as

       investment manager and not in its individual capacity

By: /s/ Richard Petrilli                                    

Name:  Richard Petrilli

Title:    Chief Financial Officer

Notice Information

Kramer Levin Naftalis & Frankel LLP

1177 Avenue of the Americas

New York, NY 10036

Email: KEckstein@kramerlevin.com;

            SZide@kramerlevin.com

            ADove@kramerlevin.com

Attention:        Kenneth H. Eckstein, Esq.,

                        Stephen D. Zide, Esq.,

                        and Andrew M. Dove, Esq.

[Signature Page to the Amendment to Backstop Commitment Agreement]

Exhibit 99.1

 

LOGO   

News Release

 

CONTACT:

Vic Svec

314.342.7768

FOR IMMEDIATE RELEASE

Dec. 29, 2016

PEABODY ENERGY PROVIDES UPDATE REGARDING PLAN OF REORGANIZATION

ST. LOUIS, Dec. 29 – Peabody Energy today announced that it has materially increased the consensus among creditor classes in recent days in support of the company’s plan of reorganization. Following discussions with certain other creditors, the company also has reached agreement with the creditor co-proponents of the plan to extend the deadline for holders of the company’s senior secured second lien notes and senior unsecured notes to become parties to the Plan Support Agreement (PSA) and to join the Backstop Commitment Agreement (BCA) relating to the proposed $750 million common stock rights offering and the Private Placement Agreement (PPA) relating to the proposed private placement of $750 million of mandatorily convertible preferred stock as Phase Two parties.

The Phase Two deadline has been extended by 48 hours, and the new deadline is 5:00 p.m., New York City time, on Dec. 30, 2016.

As of Dec. 28, 2016, additional holders of approximately 25 percent of the outstanding principal amount of the company’s senior secured second lien notes and approximately 25 percent of the outstanding principal amount of the company’s senior unsecured notes became parties to the PSA, BCA and PPA.

When combined with the holdings of the creditors initially party to the PSA, BCA and PPA, holders of approximately 38 percent of the company’s outstanding first lien debt are parties to the PSA, and holders of approximately 65 percent of the outstanding principal amount of the company’s senior secured second lien notes and 65 percent of the outstanding principal amount of the company’s senior unsecured notes are parties to each of the PSA, BCA and PPA.

“We are very pleased by the substantial incremental support our plan has received over the past few days,” said Peabody Energy Executive Vice President and Chief Financial Officer Amy B. Schwetz. “The plan has gained significant additional consensus among Peabody’s senior bondholders as we continue to move toward confirmation.”

In addition, the company notes that the U.S. Bankruptcy Court for the Eastern District of Missouri has entered an order that allows specified holders of approximately 12 percent of the outstanding principal amount of the company’s senior secured second lien notes and approximately 7 percent of the outstanding principal amount of the company’s senior unsecured notes to become Phase Two parties under the BCA and PPA if they submit joinders to the PSA, BCA and PPA on or prior to 3:00 p.m., New York City time, on Jan. 6, 2017.

The plan of reorganization is subject to confirmation by the court, and the related disclosure statement is subject to approval by the court. This press release is not intended as solicitation for a vote on the plan. The full terms of the plan of reorganization and disclosure statement, as well as the related motions and other documentation relating to the Chapter 11 cases, are available online at http://www.kccllc.net/Peabody.

Peabody Energy is the world’s largest private-sector coal company and a Fortune 500 company. The company serves metallurgical and thermal coal customers in 25 countries on six continents. For further information, visit PeabodyEnergy.com.

-End-

Certain statements included in this release are forward-looking as defined in the Private Securities Litigation Reform Act of 1995. The Company uses words such as “anticipate,” “believe,” “expect,” “may,” “forecast,” “project,” “should,” “estimate,” “plan,” “outlook,” “target,” “likely,” “will,” “to be” or other similar words to identify forward-looking statements. These forward-looking statements are made as of the date the release was filed and are based on numerous assumptions that the Company believes are reasonable, but these assumptions are open to a wide range of uncertainties and business risks that may cause actual results to differ materially from expectations. These factors are difficult to accurately predict and may be beyond the Company’s control. Factors that could affect the Company’s results include, but are not limited to: the Company’s ability to obtain bankruptcy court approval with respect to motions or other requests made to the bankruptcy court in connection with the Company’s voluntary petitions for reorganization under Chapter 11 of Title 11 of the U.S. Code (the Chapter 11 Cases), including maintaining strategic control as debtor-in-possession; the Company’s ability to negotiate, develop, confirm and consummate a plan of reorganization; the effects of the Chapter 11 Cases on the operations of the Company, including customer, supplier, banking, insurance and other relationships and agreements; bankruptcy court rulings in the Chapter 11 Cases as well as the outcome of all other pending litigation and the outcome of the Chapter 11 Cases in general; the length of time that the Company will operate under Chapter 11 protection and the continued availability of operating capital during the pendency of the proceedings; risks associated with third-party motions in the Chapter 11 Cases, which may interfere with the Company’s ability to confirm and consummate a plan of reorganization and restructuring generally; increased advisory costs to execute a plan of reorganization; the impact of the New York Stock Exchange’s delisting of the Company’s common stock on the liquidity and market price of the Company’s common stock and on the Company’s ability to access the public capital markets; the volatility of the trading price of the Company’s common stock and the absence of correlation between any increases in the trading price and the Company’s expectation that the common stock will be cancelled and extinguished upon confirmation of a proposed plan of reorganization with no payments made to the holders of the Company’s common stock; the Company’s ability to continue as a going concern including the Company’s ability to confirm a plan of reorganization that restructures the Company’s debt obligations to address liquidity issues and allow emergence from the Chapter 11 Cases; the risk that the plan of reorganization may not be accepted or confirmed, in which case there can be no assurance that the Chapter 11 cases will continue rather than be converted to Chapter 7 liquidation cases or that any alternative plan of reorganization would be on terms as favorable to holders of claims and interests as the terms of the plan of reorganization filed by the Company; the Company’s ability to use cash collateral; the effect of the Chapter 11 Cases on the Company’s relationships with third parties, regulatory authorities and employees; the potential adverse effects of the Chapter 11 Cases on the Company’s liquidity, results of operations, or business prospects; the Company’s ability to execute its business and restructuring plan; increased administrative and legal costs related to the Chapter 11 Cases and other litigation and the inherent risks involved in a bankruptcy process; the cost, availability and access to capital and financial markets, including the ability to secure new financing after emerging from the Chapter 11 Cases; the risk that the Chapter 11 Cases will disrupt or impede the Company’s international operations, including the Company’s business operations in Australia; competition in the coal industry and supply and demand for the Company’s coal products, including the impact of alternative energy sources, such as natural gas and renewables, global steel demand and the downstream impact on metallurgical coal prices, and lower demand for the Company’s products by electric power generators; the Company’s ability to successfully consummate planned divestitures, including the planned sale of the Metropolitan Mine; the Company’s ability to appropriately secure its obligations for reclamation, federal and state workers’ compensation, federal coal leases and other obligations related to the Company’s operations, including its ability to utilize self-bonding and/or successfully access the commercial surety bond market; customer procurement practices and contract duration; the impact of weather and natural disasters on demand, production and transportation; reductions and/or deferrals of purchases by major customers and the Company’s ability to renew sales contracts; credit and performance risks associated with customers, suppliers, contract miners, co-shippers, and trading, bank and other financial counterparties; geologic, equipment, permitting, site access, operational risks and new technologies related to mining; transportation availability, performance and

costs; availability, timing of delivery and costs of key supplies, capital equipment or commodities such as diesel fuel, steel, explosives and tires; impact of take-or-pay arrangements for rail and port commitments for the delivery of coal; successful implementation of business strategies, including, without limitation, the actions the Company is implementing to improve its organization and respond to current industry conditions; negotiation of labor contracts, employee relations and workforce availability, including, without limitation, attracting and retaining key personnel; the Company’s ability to comply with financial and other restrictive covenants in various agreements; changes in postretirement benefit and pension obligations and their related funding requirements; replacement and development of coal reserves; effects of changes in interest rates and currency exchange rates (primarily the Australian dollar); effects of acquisitions or divestitures; economic strength and political stability of countries in which the Company has operations or serves customers; legislation, regulations and court decisions or other government actions, including, but not limited to, new environmental and mine safety requirements, changes in income tax regulations, sales-related royalties, or other regulatory taxes and changes in derivative laws and regulations; the Company’s ability to obtain and renew permits necessary for the Company’s operations; litigation or other dispute resolution, including, but not limited to, claims not yet asserted; any additional liabilities or obligations that the Company may have as a result of the bankruptcy of Patriot Coal Corporation, including, without limitation, as a result of litigation filed by third parties in relation to that bankruptcy; terrorist attacks or security threats, including, but not limited to, cybersecurity threats; impacts of pandemic illnesses; and other risks detailed in the Company’s reports filed with the SEC. The Company does not undertake to update its forward-looking statements except as required by law. As outlined in the plan of reorganization, our equity securities will be cancelled and extinguished upon confirmation of a plan of reorganization by the bankruptcy court, and holders thereof will not be entitled to receive, and will not receive or retain, any property or interest in property on account of such equity interests.