Exhibit 1.1
Sales Agency Agreement
Sales Agency Agreement (this "Agreement"), dated as of December
15,
2005, between IDACORP, INC., an Idaho
corporation (the "Company"), and BNY
CAPITAL MARKETS, INC., a registered
broker-dealer organized under the laws of
New York ("BNYCMI").
W I T N E S S E T H:
WHEREAS, the Company has authorized and proposes to issue and sell
in
the manner contemplated by this Agreement
up to 2,500,000 Common Shares upon the
terms and subject to the conditions
contained herein; and
WHEREAS, BNYCMI has been appointed by the Company as its agent to
sell
the Common Shares and agrees to use its
commercially reasonable efforts to sell
the Common Shares offered by the Company
upon the terms and subject to the
conditions contained herein.
NOW THEREFORE, in consideration of the premises,
representations,
warranties, covenants and agreements
contained herein, and for other good and
valuable consideration, the receipt and
sufficiency of which are hereby
acknowledged, intending to be legally bound
hereby, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.01 Certain Definitions. For purposes of this
Agreement,
capitalized terms used herein and not
otherwise defined shall have the following
respective meanings:
"Actual Sold Amount" means the number of Issuance Shares that
BNYCMI has
sold during the Selling Period.
"Affiliate" of a Person means another Person that directly or
indirectly, through one or more
intermediaries, controls, is controlled by, or
is under common control with, such first-
mentioned Person. The term "control"
(including the terms "controlling,"
"controlled by" and "under common control
with") means the possession, direct or
indirect, of the power to direct or cause
the direction of the management and
policies of a Person, whether through the
ownership of voting securities, by contract
or otherwise.
"Closing" has the meaning set forth in Section 2.02.
"Closing Date" means the date on which the Closing occurs.
"Commission" means the United States Securities and Exchange
Commission.
"Commitment Period" means the period commencing on the date of
this
Agreement and expiring on the earliest to
occur of (x) the date on which BNYCMI
shall have sold the Maximum Program Amount
pursuant to this Agreement, (y) the
date this Agreement is terminated pursuant
to Article VII and (z) the second
anniversary of the date of this
Agreement.
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"Common Stock" shall mean the Company's Common Stock, without par
value,
and the preferred share purchase rights
attached thereto.
"Common Shares" shall mean shares of the Company's Common Stock
issued
or issuable pursuant to this Agreement.
"Effective Date" has the meaning set forth in Section 3.03.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Floor Price" means the minimum price set by the Company in the
Issuance
Notice below which BNYCMI shall not sell
Common Shares during the Selling
Period, which may be adjusted by the
Company at any time during the Selling
Period and which in no event shall be less
than $1.00 without the prior written
consent of BNYCMI, which may be withheld in
BNYCMI's sole discretion.
"Issuance" means each occasion the Company elects to exercise its
right
to deliver an Issuance Notice requiring
BNYCMI to use its commercially
reasonable efforts to sell the Common
Shares as specified in such Issuance
Notice, subject to the terms and conditions
of this Agreement.
"Issuance Amount" means the number of Issuance Shares to be sold
by
BNYCMI with respect to any Issuance, which
may not exceed 500,000 Common Shares
during any Selling Period without the prior
written consent of BNYCMI, which may
be withheld in BNYCMI's sole
discretion.
"Issuance Date" means any Trading Day during the Commitment Period
that
an Issuance Notice is deemed delivered
pursuant to Section 2.03(b) hereof.
"Issuance Notice" means a written notice to BNYCMI delivered in
accordance with this Agreement in the form
attached hereto as Exhibit A.
"Issuance Price" means the Sales Price less the Selling
Commission.
"Issuance Shares" means all shares of Common Stock issued or
issuable
pursuant to an Issuance that has occurred
or may occur in accordance with the
terms and conditions of this Agreement.
"Material Adverse Effect" means a material adverse effect on
the
business, earnings, assets, operations,
properties or condition (financial or
otherwise) of the Company and its
Subsidiaries, taken as a whole, or any
material adverse effect on the Company's
ability to consummate the transactions
contemplated by, or to execute, deliver and
perform its obligations under, this
Agreement.
"Material Subsidiary" has the meaning set forth in Section
3.05.
"Maximum Program Amount" means 2,500,000 Common Shares (or, if
less, the
aggregate amount of Common Shares
registered under the Registration Statement).
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"NYSE" means the New York Stock Exchange.
"Person" means an individual or a corporation, partnership,
limited
liability company, trust, incorporated or
unincorporated association, joint
venture, joint stock company, governmental
authority or other entity of any
kind.
"Principal Market"
means the NYSE.
"Prospectus" has the meaning set forth in Section 3.01.
"Registration Statement" has the meaning set forth in Section
3.01.
"Representation Date" has the meaning set forth in the
introductory
paragraph of Article III.
"Sales Price" means the actual sale execution price of each Common
Share
sold by BNYCMI on the Principal Market
hereunder in the case of ordinary
brokers' transactions, or as otherwise
agreed by the parties in other methods of
sale.
"Securities Act" means the Securities Act of 1933, as amended.
"Selling Commission" means 1.0% of the Sales Price.
"Selling Period" means the period of one to twenty consecutive
Trading
Days (as determined by the Company in the
Company's sole discretion and
specified in the applicable Issuance
Notice) following the Trading Day on which
an Issuance Notice is delivered or deemed
to be delivered pursuant to Section
2.03(b) hereof.
"Settlement Date" means the third (3rd) Trading Day following the
sale
of any Issuance Shares pursuant to this
Agreement.
"Subsidiary" has the meaning set forth in Section 3.05.
"Trading Day" means any day which is a trading day on the NYSE,
other
than a day on which trading is scheduled to
close prior to its regular weekday
closing time.
"Voting Stock" of any Person as of any date means the capital stock
of
such Person that is at the time entitled to
vote in the election of the Board of
Directors of such Person.
ARTICLE II
ISSUANCE AND SALE OF COMMON STOCK
Section 2.01 Issuance. Section 2.02 (a) Upon the terms and subject
to
the conditions of this Agreement, the
Company may sell Common Shares through
BNYCMI and BNYCMI shall use its
commercially reasonable efforts to sell Common
Shares, up to the Maximum Program Amount,
based on and in accordance with such
number of Issuance Notices as the Company
shall choose to deliver during the
Commitment Period until the aggregate
number of Common Shares sold under this
Agreement equals the Maximum Program Amount
or this Agreement is
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otherwise terminated. Subject to the
foregoing and the other terms and
conditions of this Agreement, upon the
delivery of an Issuance Notice, and
unless the sale of the Issuance Shares
described therein has been suspended,
cancelled or otherwise terminated in
accordance with the terms of this
Agreement, BNYCMI will use its commercially
reasonable efforts consistent with
its normal trading and sales practices to
sell such Issuance Shares up to the
Issuance Amount specified in such Issuance
Notice, and otherwise in accordance
with the terms of such Issuance Notice.
BNYCMI will provide written confirmation
to the Company no later than the opening of
the Trading Day next following the
Trading Day on which it has made sales of
Issuance Shares hereunder setting
forth the portion of the Actual Sold Amount
for such Trading Day, the
corresponding Sales Price and the Issuance
Price payable to the Company in
respect thereof. BNYCMI may sell Issuance
Shares in the manner described in
Section 2.01(b) herein. The Company
acknowledges and agrees that (i) there can
be no assurance that BNYCMI will be
successful in selling Issuance Shares and
(ii) BNYCMI will incur no liability or
obligation to the Company or any other
Person if it does not sell Issuance Shares
for any reason other than a failure
by BNYCMI to use its commercially
reasonable efforts consistent with its normal
trading and sales practices to sell such
Issuance Shares as required under this
Section 2.01. In acting hereunder, BNYCMI
will be acting as agent for the
Company and not as principal.
(b) Method of Offer and Sale. The Common Shares may be offered and
sold
by any method permitted by law and deemed
to be an "at-the-market offering" as
defined in Rule 415 of the Securities Act,
including sales made directly on the
Principal Market or sales made, if and only
if the parties hereto have so agreed
in writing, to or through a market maker,
through an electronic communications
network or in privately negotiated
transactions. Nothing in this Agreement shall
be deemed to require either party to agree
to the offering and sale of Common
Shares to or through a market maker,
through an electronic communications
network or in privately negotiated
transactions, and either party may withhold
its consent thereto in its sole
discretion.
(c) Issuances. Upon the terms and subject to the conditions set
forth
herein, on any Trading Day as provided in
Section 2.03(b) hereof during the
Commitment Period on which the conditions
set forth in Section 5.01 and 5.02
hereof have been satisfied, the Company may
exercise an Issuance by the delivery
of an Issuance Notice, executed by the
Chief Executive Officer, the Chief
Financial Officer, the President, the
Executive Vice President, the Treasurer,
any Senior Vice President or the Secretary
of the Company, to BNYCMI. BNYCMI
shall use its commercially reasonable
efforts to sell pursuant to such Issuance
not more than the Issuance Amount. Each
sale of Issuance Shares will be settled
on the applicable Settlement Date following
such sale.
Section 2.02 Effectiveness. The effectiveness of this Agreement
(the
"Closing") shall be deemed to take place
concurrently with the execution and
delivery of this Agreement by the parties
hereto and the completion of the
closing transactions set forth in the
immediately following sentence. At the
Closing, the following closing transactions
shall take place, each of which
shall be deemed to occur simultaneously
with the Closing: (i) the Company shall
deliver to BNYCMI a certificate executed by
the Secretary of the Company,
signing in such capacity, dated the date of
the Closing (A) certifying that
attached thereto are true and complete
copies of the resolutions duly adopted by
the Board of Directors of the Company
authorizing the execution and delivery of
this Agreement and the consummation of the
transactions contemplated hereby
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(including, without limitation, the
issuance of the Common Shares pursuant to
this Agreement), which authorization shall
be in full force and effect on and as
of the date of such certificate and (B)
certifying and attesting to the office,
incumbency, due authority and specimen
signatures of each Person who executed
the Agreement for or on behalf of the
Company; (ii) the Company shall deliver to
BNYCMI a certificate executed by the Chief
Executive Officer, the President, the
Executive Vice President, any Senior Vice
President of the Company or the Chief
Financial Officer of the Company, signing
in such capacity, dated the date of
the Closing, confirming that the
representations and warranties of the Company
contained in this Agreement are true and
correct in all material respects and
that the Company has performed in all
material respects all of its obligations
hereunder to be performed on or prior to
the Closing Date and as to the matters
set forth in Section 5.01(a) hereof; (iii)
Thomas R. Saldin, Esq., Senior Vice
President, General Counsel and Secretary of
the Company, shall deliver to BNYCMI
an opinion, dated the date of the Closing
and addressed to BNYCMI, substantially
in the form of Exhibit B attached hereto;
(iv) LeBoeuf, Lamb, Greene & MacRae
LLP, counsel to the Company, shall deliver
to BNYCMI an opinion (relying for
matters of Idaho law on the opinion of Mr.
Saldin), dated the date of the
Closing and addressed to BNYCMI,
substantially in the form of Exhibit C attached
hereto; (v) Sullivan & Cromwell LLP,
counsel to BNYCMI, shall deliver such
opinion or opinions (relying for matters of
Idaho law on the opinion of Mr.
Saldin), dated as of the Closing, as BNYCMI
may reasonably request; and (vi)
Deloitte & Touche LLP, independent
registered public accounting firm for the
Company, shall deliver to BNYCMI a letter,
dated the Closing Date, in form and
substance reasonably satisfactory to
BNYCMI.
Section 2.03 Mechanics of Issuances. (a) Issuance Notice. On any
Trading
Day during the Commitment Period, the
Company may deliver an Issuance Notice to
BNYCMI, subject to the satisfaction of the
conditions set forth in Sections 5.01
and 5.02; provided, however, that (1) the
Issuance Amount for each Issuance as
designated by the Company in the applicable
Issuance Notice shall in no event
exceed 500,000 Common Shares without the
prior written consent of BNYCMI, which
may be withheld in BNYCMI's sole
discretion, and (2) notwithstanding anything in
this Agreement to the contrary, BNYCMI
shall have no further obligations with
respect to any Issuance Notice if and to
the extent the number of Issuance
Shares to be sold pursuant thereto,
together with the aggregate number of Common
Shares previously sold under this
Agreement, shall exceed the Maximum Program
Amount.
(b) Delivery of Issuance Notice. An Issuance Notice shall be
deemed
delivered on the Trading Day that it is
received by facsimile or otherwise (and
the Company confirms such delivery by
e-mail notice or by telephone (including
voicemail message)) by BNYCMI. No Issuance
Notice may be delivered other than on
a Trading Day during the Commitment
Period.
(c) Floor Price. BNYCMI shall not sell Common Shares below the
Floor
Price during any Selling Period, and such
Floor Price may be adjusted by the
Company at any time during any Selling
Period upon notice to BNYCMI and
confirmation to the Company.
(d) Determination of Issuance Shares to be Sold. The number of
Issuance
Shares to be sold by BNYCMI with respect to
any Issuance shall be the Actual
Sold Amount during the Selling Period.
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(e) Trading Guidelines. BNYCMI may, to the extent permitted under
the
Securities Act and the Exchange Act,
purchase and sell Common Stock for its own
account while this Agreement is in effect
provided that (i) no such purchase or
sale shall take place while an Issuance
Notice is in effect, (ii) in no
circumstances shall BNYCMI have a short
position in the Common Stock for its own
account and (iii) the Company shall not be
deemed to have authorized or
consented to any such purchases or sales by
BNYCMI. In addition, the Company
hereby acknowledges and agrees that
BNYCMI's affiliates, subject to compliance
with Regulation M under the Exchange Act,
may make markets in the Common Stock
or other securities of the Company, in
connection with which they may buy and
sell, as agent or principal, for long or
short account, shares of Common Stock
or other securities of the Company, at the
same time BNYCMI is acting as agent
pursuant to this Agreement.
Section 2.04 Use of Free Writing Prospectus. Neither the Company
nor
BNYCMI has prepared, used, referred to or
distributed, or will prepare, use,
refer to or distribute without the other
party's prior written consent, any
"written communication" which constitutes a
"free writing prospectus" as such
terms are defined in Rule 405 under the
Securities Act.
Section 2.05 Settlements. Subject to the provisions of Article V,
on or
before each Settlement Date, the Company
will cause Wells Fargo Bank, National
Association, its transfer agent, to
electronically transfer the Issuance Shares
being sold by crediting BNYCMI or its
designee's account at The Depository Trust
Company through its Deposit/Withdrawal at
Custodian System, or by such other
means of delivery as may be mutually agreed
upon by the parties hereto, and
concurrently with the receipt of such
Issuance Shares, which in all cases shall
be freely tradable, transferable,
registered shares in good deliverable form,
BNYCMI will deliver the related Issuance
Price in same day funds to an account
designated by the Company. If the Company
defaults in its obligation to deliver
Issuance Shares on a Settlement Date, the
Company agrees that it will (i) hold
BNYCMI harmless against any loss, claim,
damage or expense (including, without
limitation, penalties, interest and
reasonable legal fees and expenses), as
incurred, arising out of or in connection
with such default by the Company, and
(ii) pay to BNYCMI any Selling Commission
to which it would otherwise have been
entitled absent such default. The
individuals listed on Schedule 1 hereto shall
be the contact persons for all matters
related to the settlement of the transfer
of Issuance Shares through the
Deposit/Withdrawal at Custodian System for
purposes of this Section 2.05.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to, and agrees with, BNYCMI
that as
of the Closing Date, as of each Issuance
Date, as of each Settlement Date and as
of any time that the Registration Statement
or the Prospectus shall be amended
or supplemented (each of the times
referenced above is referred to herein as a
"Representation Date"), except as may be
disclosed in the Prospectus on or
before a Representation Date:
Section 3.01 Registration. The Common Stock is registered pursuant
to
Section 12(b) of the Exchange Act and is
currently listed and quoted on the
Principal Market under the trading symbol
"IDA", and the Common Shares have been
listed on the Principal Market, subject to
notice of issuance. The Company (i)
meets the requirements for use of Form S-3
under the
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Securities Act and the rules and
regulations thereunder for the registration of
the transactions contemplated by this
Agreement and (ii) has been subject to the
requirements of Section 12 of the Exchange
Act and has timely filed all the
material required to be filed pursuant to
Sections 13 and 14 of the Exchange Act
for a period of more than 12 calendar
months. The Company has filed with the
Commission a registration statement on Form
S-3 (Registration No. 333-83434)
which registration statement has been
declared effective by the Commission for
the registration of up to $500,000,000
aggregate amount of Common Shares and
other securities under the Securities Act
(of which $120,750,000 has been issued
and sold prior to the date of this
Agreement), and the offering thereof from
time to time pursuant to Rule 415
promulgated by the Commission under the
Securities Act. Such registration
statement, and the prospectus constituting a
part of such registration statement,
together with the Prospectus Supplement (as
defined in Section 5.01(k)) and any pricing
supplement relating to a particular
issuance of the Issuance Shares (each, an
"Issuance Supplement"), including all
documents incorporated or deemed to be
incorporated therein by reference
pursuant to Item 12 of Form S-3 under the
Securities Act, in each case as from
time to time amended or supplemented, are
referred to herein as the
"Registration Statement" and the
"Prospectus," respectively, except that if any
revised prospectus is provided to BNYCMI by
the Company for use in connection
with the offering of the Common Shares that
is not required to be filed by the
Company pursuant to Rule 424(b) promulgated
by the Commission under the
Securities Act, the term "Prospectus" shall
refer to such revised prospectus
from and after the time it is first
provided to BNYCMI for such use. Promptly
after the execution and delivery of this
Agreement, the Company will prepare and
file the Prospectus Supplement relating to
the Issuance Shares pursuant to Rule
424(b) promulgated by the Commission under
the Securities Act, as contemplated
by Section 5.01(k) of this Agreement. As
used in this Agreement, the terms
"amendment" or "supplement" when applied to
the Registration Statement or the
Prospectus shall be deemed to include the
filing by the Company with the
Commission of any document under the
Exchange Act after the date hereof that is
or is deemed to be incorporated therein by
reference.
Section 3.02 Incorporated Documents. The documents incorporated
or
deemed to be incorporated by reference in
the Registration Statement and the
Prospectus pursuant to Item 12 of Form S-3
(collectively, the "Incorporated
Documents"), as of the date filed with the
Commission under the Exchange Act,
conformed and will conform in all material
respects to the requirements of the
Exchange Act and the rules and regulations
of the Commission promulgated
thereunder, and none of such documents
contained or will contain at such time an
untrue statement of a material fact or
omitted or will omit to state a material
fact necessary to make the statements
therein, in the light of the circumstances
under which they were made, not
misleading.
Section 3.03 The Registration Statement. No stop order suspending
the
effectiveness of the Registration Statement
has been issued and no proceeding
for that purpose has been initiated or
threatened by the Commission. The
Registration Statement, as of the Effective
Date, conformed or will conform in
all material respects to the requirements
of the Securities Act, and the rules
and regulations of the Commission
promulgated thereunder and, as of the
Effective Date, does not and will not
contain an untrue statement of a material
fact or omit to state a material fact
required to be stated therein or necessary
to make the statements therein not
misleading, and the Prospectus, as of its
original issue date, as of the date of any
filing of an Issuance Supplement
thereto pursuant to Rule 424(b) promulgated
by the Commission under the
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Securities Act and as of the date of any
other amendment or supplement thereto,
conforms or will conform in all material
respects to the requirements of the
Securities Act and the rules and
regulations of the Commission promulgated
thereunder and, as of such respective
dates, does not and will not contain an
untrue statement of a material fact or omit
to state a material fact necessary
to make the statements therein, in the
light of the circumstances under which
they were made, not misleading; provided,
however, that this representation and
warranty shall not apply to any statements
or omissions made in reliance upon
and in conformity with information
furnished in writing to the Company by BNYCMI
expressly for use in the Prospectus. As
used herein, with respect to the
Registration Statement, the term "Effective
Date" means, as of a specified time,
the later of (i) the date that the
Registration Statement or the most recent
post-effective amendment thereto was or is
declared effective by the Commission
under the Securities Act and (ii) the date
that the Company's Annual Report on
Form 10-K for its most recently completed
fiscal year is filed with the
Commission under the Exchange Act.
Section 3.04 Changes. Since the date of the latest audited
financial
statements included or incorporated by
reference in the Prospectus there has
been no material adverse change in the
condition (financial or otherwise),
earnings, business or properties of the
Company and its subsidiaries considered
as a whole, whether or not arising from
transactions in the ordinary course of
business, except as set forth in or
contemplated by the Prospectus.
Section 3.05 Organizational Matters. The Company has been duly
incorporated and is validly existing as a
corporation in good standing under the
laws of the State of Idaho, with corporate
power and authority to own or lease
its properties and conduct its business in
all material respects as described in
the Registration Statement and the
Prospectus; the Company is duly qualified to
transact business and is in good standing
in each jurisdiction in which the
failure to so qualify would have a Material
Adverse Effect. Each Material
Subsidiary of the Company has been duly
incorporated and is validly existing as
a corporation or limited liability company,
as applicable, and to the extent
such concept is applicable, is in good
standing under the laws of its
jurisdiction of incorporation. As used in
this Agreement, the term "Subsidiary"
means any Person (other than a natural
person), at least a majority of the
outstanding Voting Stock of which is owned
by the Company, by one or more
Subsidiaries or by the Company and one or
more Subsidiaries. As of the date of
this Agreement, the only Material
Subsidiaries of the Company are Idaho Power
Company and IDACORP Financial Services,
Inc. (each, a "Material Subsidiary").
Section 3.06 Authorization; Enforceability. The Company has
duly
authorized, executed and delivered this
Agreement. This Agreement constitutes
the valid and binding obligation of the
Company, enforceable against the Company
in accordance with its terms, except as
enforceability may be limited by
applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws
affecting the enforcement of creditors'
rights generally and by general
principles of equity (regardless of whether
enforcement is sought in a
proceeding in equity or at law) and by
limitations imposed by law and public
policy on indemnification or
exculpation.
Section 3.07 Capitalization. The Company has an authorized
capitalization as set forth in the
Prospectus, and all of the outstanding
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shares of Common Stock of the Company have
been duly authorized and validly
issued and are fully paid and
non-assessable; none of the outstanding shares of
Common Stock of the Company was issued in
violation of the preemptive or other
similar rights of any security holder of
the Company; all of the outstanding
shares of capital stock of each Material
Subsidiary have been duly authorized
and validly issued and are fully paid and
non-assessable. The Common Shares have
been duly authorized by all necessary
corporate action on the part of the
Company and, when issued and delivered
against payment therefor as provided in
this Agreement, the Common Shares will be
validly issued, fully paid and
nonassessable, will not be subject to any
preemptive or similar rights and will
be free and clear of all claims, liens,
charges, encumbrances and security
interests of any nature whatsoever. The
Common Shares conform to the description
contained in the Prospectus under the
caption "Description of Common Stock."
Except as set forth in the Prospectus,
there are no outstanding options,
warrants, conversion rights, subscription
rights, preemptive rights, rights of
first refusal or other rights or agreements
of any nature outstanding to
subscribe for or to purchase any shares of
Common Stock of the Company or any
other securities of the Company of any kind
binding on the Company (except
pursuant to dividend reinvestment, stock
purchase or ownership, stock option,
director or employee benefit plans ) and
there are no outstanding securities or
instruments of the Company containing
anti-dilution or similar provisions that
will be triggered by the issuance of the
Common Shares as described in this
Agreement. There are no restrictions upon
the voting or transfer of any shares
of the Company's Common Stock pursuant to
the Company's Articles of
Incorporation or bylaws. There are no
agreements or other obligations
(contingent or otherwise) that may require
the Company to repurchase or
otherwise acquire any shares of its Common
Stock. No Person has the right,
contractual or otherwise, to cause the
Company to issue to it, or to register
pursuant to the Securities Act, any shares
of capital stock or other securities
of the Company upon the filing of the
Registration Statement or the issuance or
sale of the Common Shares hereunder.
Section 3.08 No Conflicts. The execution and delivery by the
Company of,
and the performance by the Company of its
obligations under, this Agreement will
not (a) conflict with or result in a breach
or violation of any of the terms or
provisions of, or constitute a default
under, or result in the imposition of a
lien or security interest upon any property
or assets used in the conduct of the
business of the Company or any Material
Subsidiary pursuant to, any material
indenture, mortgage, deed of trust, loan
agreement or other agreement or
instrument to which the Company or any
Material Subsidiary is a party or by
which the Company or any Material
Subsidiary is bound or to which any of the
property or assets used in the conduct of
the business of the Company or any
Material Subsidiary is subject, (b) result
in any violation of the provisions of
the certificate of incorporation or the
by-laws of the Company or the
organizational documents of any Material
Subsidiary, or (c) result in any
violation of any applicable statute or any
order, rule or regulation of any
court or governmental agency or body having
jurisdiction over the Company or any
Material Subsidiary or any of their
properties (except in each case for
conflicts, breaches, violations, defaults,
liens or security interests that
would not have a Material Adverse Effect).
No consent, approval, authorization,
order, registration or qualification of or
with any court or governmental agency
or body is required for the performance by
the Company of its obligations under
this Agreement, except such as have been,
or will have been prior to the Closing
Date, obtained under the Securities Act,
and for such consents, approvals,
authorizations, orders, registrations or
qualifications as may be required under
state securities or blue sky laws, as the
case may be, and except in any case
where the failure to obtain such consent,
approval, authorization, order,
registration or qualification would not
have a Material Adverse Effect.
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Section 3.09 Legal Proceedings. Other than as set forth in the
Prospectus, there are no legal or
governmental proceedings pending to which the
Company or any of its Subsidiaries is a
party or of which any property of the
Company or any of its Subsidiaries is the
subject which, if determined adversely
to the Company or any of its Subsidiaries,
would individually or in the
aggregate have a Material Adverse Effect
and, to the best of the Company's
knowledge, no such proceedings are
threatened or contemplated by governmental
authorities or threatened by others.
Section 3.10 Sale of Common Shares. Immediately after any sale of
Common
Shares by the Company hereunder, the
aggregate amount of Common Stock that has
been issued and sold by the Company
hereunder will not exceed the aggregate
amount of Common Stock registered under the
Registration Statement (in this
regard, the Company acknowledges and agrees
that BNYCMI shall have no
responsibility for maintaining records with
respect to the aggregate amount of
Common Shares sold, or of otherwise
monitoring the availability of Common Stock
for sale, under the Registration
Statement).
Section 3.11 Permits. Each of the Company and the Material
Subsidiaries
has such permits, licenses, franchises and
authorizations of governmental or
regulatory authorities (the "permits") as
are necessary to conduct its business
in the manner described in the Prospectus,
except where the failure to obtain
such permits would not reasonably be
expected to have a Material Adverse Effect;
and to the best knowledge of the Company
after due inquiry, each of the Company
and the Material Subsidiaries are in
compliance with all terms and conditions of
any such permit, except where the failure
to comply with the terms and
conditions of such permits would not
reasonably be expected to have a Material
Adverse Effect.
Section 3.12 Investment Company. The Company is not, and after
giving
effect to the offering and sale of the
Common Shares, will not be, an
"investment company" within the meaning of
the Investment Company Act of 1940,
as amended (the "1940 Act").
Section 3.13 Financial Condition; No Adverse Changes. (a) The
financial
statements, together with related schedules
and notes, included or incorporated
by reference in the Registration Statement
and the Prospectus, present fairly
the consolidated financial position,
results of operations and changes in
financial position of the Company and the
Subsidiaries on the basis stated
therein at the respective dates or for the
respective periods to which they
apply; such statements and related
schedules and notes have been prepared in
accordance with generally accepted
accounting principles consistently applied
throughout the periods involved, subject to
normal year-end adjustments, except
as disclosed therein; and the other
financial and statistical information and
data included or incorporated by reference
in the Registration Statement and the
Prospectus are accurately presented and
prepared on a basis consistent with such
financial statements and the books and
records of the Company and the
Subsidiaries. No other financial statements
are required to be set forth or to
be incorporated by reference in the
Registration Statement or the Prospectus
under the Securities Act.
(b) The Company and its Subsidiaries maintain systems of
internal
control over financial reporting (as such
term is defined in Rule 13a-15(f) of
the Exchange Act). The Company's internal
control over financial reporting was
effective as of December 31, 2004, and the
Company is not aware of any material
weaknesses therein. Since the date of the
latest audited financial statements
included or incorporated by reference in
the Prospectus, there has
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been no change that has materially
adversely affected, or is reasonably likely
to materially adversely affect, the
Company's internal control over financial
reporting.
(c) The accountants who have audited the financial statements of
the
Company that are incorporated by reference
in the Registration Statement and the
Prospectus are independent registered
public accountants as required by the
Securities Act and the rules and
regulations of the Commission promulgated
thereunder.
(d) The Company maintains disclosure controls and procedures (as
such
term is defined in Rule 13a-15(e) of the
Exchange Act) that were effective as of
September 30, 2005.
Section 3.14 Use of Proceeds. The Company will use the net proceeds
from
the offering of Common Shares in the manner
specified in the Prospectus under
"Use of Proceeds."
Section 3.15 Environmental Matters. Other than as set forth in
the
Prospectus, (a) the Company and its
Subsidiaries are in compliance in all
material respects with all applicable state
and federal environmental laws,
except for instances of noncompliance that,
individually or in the aggregate,
would not have a Material Adverse Effect,
and (b) no event or condition has
occurred that is reasonably likely to
interfere in any material respect with the
compliance by the Company and its
Subsidiaries with any environmental law or
that is reasonably likely to give rise to
any liability under any environmental
law, in each case that, individually or in
the aggregate, would have a Material
Adverse Effect.
Section 3.16 Public Utility Holding Company Act of 1935. The
Company is
exempt from the provisions of the Public
Utility Holding Company Act of 1935, as
amended (repealed, effective February 8,
2006), applicable to it as a holding
company except Section 9(a)(2) thereof and
is exempt therefrom with respect to
the issuance and sale of the Common
Shares.
Section 3.17 Insurance. 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 management
of the Company believes to be
prudent.
Section 3.18 Officer's Certificate. Any certificate signed by the
Chief
Executive Officer, the President, the
Executive Vice President, any Senior Vice
President, or the Chief Financial Officer
of the Company and delivered to BNYCMI
or to counsel for BNYCMI in connection with
an Issuance shall be deemed a
representation and warranty by the Company
to BNYCMI as to the matters covered
thereby on the date of such
certificate.
Section 3.19 Finder's Fees. The Company has not incurred (directly
or
indirectly) nor will it incur, directly or
indirectly, any liability for any
broker's, finder's, financial advisor's or
other similar fee, charge or
commission in connection with this
Agreement or the transactions contemplated
hereby.
ARTICLE IV
COVENANTS
The Company covenants and agrees during the term of this Agreement
with
BNYCMI as follows:
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Section 4.01 Registration Statement and Prospectus. (i) To make
no
amendment or supplement to the Registration
Statement or the Prospectus (other
than (x) an amendment or supplement
relating solely to the issuance or offering
of securities other than the Common Shares
and (y) by means of an Annual Report
on Form 10-K, a Quarterly Report on Form
10-Q or a Current Report on Form 8-K
filed with the Commission under the
Exchange Act and incorporated or deemed to
be incorporated by reference in the
Registration Statement or the Prospectus)
after the date of delivery of an Issuance
Notice and prior to the related
Settlement Date(s) that is reasonably
disapproved by BNYCMI promptly after
reasonable notice thereof; (ii) to prepare,
with respect to any Issuance Shares
to be sold pursuant to this Agreement, an
Issuance Supplement with respect to
such Common Shares in a form previously
approved by BNYCMI and to file such
Issuance Supplement pursuant to Rule 424(b)
promulgated by the Commission under
the Securities Act within the time period
required thereby, only if delivery and
filing of such an Issuance Supplement is
required by applicable law or by the
rules and regulations of the Commission;
(iii) to make no amendment or
supplement to the Registration Statement or
the Prospectus (other than (x) an
amendment or supplement relating solely to
the issuance or offering of
securities other than the Common Shares and
(y) by means of an Annual Report on
Form 10-K, a Quarterly Report on Form 10-Q
or a Current Report on Form 8-K filed
with the Commission under the Exchange Act
and incorporated or deemed to be
incorporated by reference in the
Registration Statement or the Prospectus) at
any time prior to having afforded BNYCMI a
reasonable opportunity to review and
comment thereon; (iv) to file within the
time periods required by the Exchange
Act all reports and any definitive proxy or
information statements required to
be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act for so long as
the delivery of a prospectus is
required under the Securities Act or under
the blue sky or securities laws of
any jurisdiction in connection with the
offering or sale of the Common Shares,
and during such same period to advise
BNYCMI, promptly after the Company
receives notice thereof, of the time when
any amendment to the Registration
Statement has been filed or has become
effective or any supplement to the
Prospectus or any amended Prospectus has
been filed with the Commission, of the
issuance by the Commission of any stop
order or of any order preventing or
suspending the use of any prospectus
relating to the Common Shares, of the
suspension of the qualification of the
Common Shares for offering or sale in any
jurisdiction, of the initiation or
threatening of any proceeding for any such
purpose, of any request by the Commission
for the amendment or supplement of the
Registration Statement or the Prospectus or
for additional information relating
thereto, or the receipt of any comments
from the Commission with respect to the
Registration Statement or the Prospectus
(including, without limitation, any
Incorporated Documents); and (v) in the
event of the issuance of any such stop
order or of any such order preventing or
suspending the use of any such
prospectus or suspending any such
qualification, to use promptly its reasonable
best efforts to obtain its withdrawal.
Section 4.02 Blue Sky. To use its reasonable best efforts to cause
the
Common Shares to be listed on the Principal
Market and promptly from time to
time to take such action as BNYCMI may
reasonably request to cooperate with
BNYCMI in the qualification of the Common
Shares for offering and sale under the
blue sky or securities laws of such
jurisdictions within the United States of
America and its territories as BNYCMI may
reasonably request and to use its
reasonable best efforts to comply with such
laws so as to permit the continuance
of sales and dealings therein for as long
as may be necessary to complete the
sale of the Common Shares; provided,
however, that in connection therewith the
Company shall not be required to
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qualify as a foreign corporation, to file a
general consent to service of
process or to subject itself to taxation in
respect of doing business in any
jurisdiction.
Section 4.03 Copies of Registration Statement and Prospectus. To
furnish
BNYCMI with copies (which may be electronic
copies) of the Registration
Statement and each amendment thereto, and
with copies of the Prospectus and each
amendment or supplement thereto in the form
in which it is filed with the
Commission pursuant to the Securities Act
or Rule 424(b) promulgated by the
Commission under the Securities Act, both
in such quantities as BNYCMI may
reasonably request from time to time; and,
if the delivery of a prospectus is
required under the Securities Act or under
the blue sky or securities laws of
any jurisdiction at any time on or prior to
the applicable Settlement Date for
any Selling Period in connection with the
offering or sale of the Common Shares
and if at such time any event has occurred
as a result of which the Prospectus
would include an 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 when such Prospectus is delivered,
not misleading, or, if for any other reason
it is necessary during such same
period to amend or supplement the
Prospectus or to file under the Exchange Act
any document incorporated by reference in
the Prospectus in order to comply with
the Securities Act or the Exchange Act, to
notify BNYCMI and request BNYCMI to
suspend offers to sell Common Shares (and,
if so notified, BNYCMI shall cease
such offers as soon as practicable); and if
the Company decides to amend or
supplement the Registration Statement or
the Prospectus, to advise BNYCMI
promptly by telephone (with confirmation in
writing) and to prepare and cause to
be filed promptly with the Commission an
amendment or supplement to the
Registration Statement or the Prospectus
that will correct such statement or
omission or effect such compliance;
provided, however, that if during such same
period BNYCMI is required to deliver a
prospectus in respect of transactions in
the Common Shares, the Company shall
promptly prepare and file with the
Commission such an amendment or
supplement.
Section 4.04 Rule 158.
To make generally available to its holders of the
Common Shares as soon as practicable, but
in any event not later than eighteen
months after the effective date of the
Registration Statement (as defined in
Rule 158(c) promulgated by the Commission
under the Securities Act), an earnings
statement of the Company and the
Subsidiaries (which need not be audited)
complying with Section 11(a) of the
Securities Act and the rules and regulations
of the Commission promulgated thereunder
(including the option of the Company to
file periodic reports in order to make
generally available such earnings
statement, to the extent that it is
required to file such reports under Section
13 or Section 15(d) of the Exchange Act,
pursuant to Rule 158 promulgated by the
Commission under the Securities Act).
Section 4.05 Information. Except where such reports,
communications,
financial statements or other information
are available on the Commission's
EDGAR system, to furnish to BNYCMI (in
paper or electronic format) copies of all
publicly available reports or other
communications (financial or other)
furnished generally to stockholders and
filed with the Commission pursuant to
the Exchange Act, and deliver to BNYCMI (in
paper or electronic format) (i)
promptly after they are available, copies
of any publicly available reports and
financial statements furnished to or filed
with the Commission or any national
securities exchange on which any class of
securities of the Company is listed;
and (ii) such additional publicly available
information concerning the business
and financial condition of the Company as
BNYCMI may from time to time
reasonably request (such financial
statements to be on a
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consolidated basis to the extent the
accounts of the Company and its
Subsidiaries are consolidated in reports
furnished to its stockholders generally
or to the Commission).
Section 4.06 Representations and Warranties. That each delivery of
an
Issuance Notice and each delivery of Common
Shares on a Settlement Date shall be
deemed to be (i) an affirmation to BNYCMI
that the representations and
warranties of the Company contained in or
made pursuant to this Agreement are
true and correct in all material respects
as of the date of such Issuance Notice
or of such Settlement Date, as the case may
be, as though made at and as of each
such date, except as may be disclosed in
the Prospectus or otherwise in writing
by the Company to BNYCMI on or before such
date of delivery or Settlement Date,
as the case may be, and (ii) an undertaking
that the Company will advise BNYCMI
if any of such representations and
warranties will not be true and correct in
all material respects as of the Settlement
Date for the Common Shares relating
to such Issuance Notice, as thou
