SALES AGENCY FINANCING AGREEMENT

Exhibit 1.1

SALES AGENCY FINANCING AGREEMENT

Sales Agency Financing Agreement (this “ Agreement ”), dated as of May 8, 2009, between THE SOUTHERN COMPANY, a Delaware corporation (the “ Company ”), and BNY MELLON CAPITAL MARKETS, LLC, a registered broker-dealer organized under the laws of the State of Delaware (“ BNYMCM ”).

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 not to exceed 20,000,000 Common Shares upon the terms and subject to the conditions contained herein;

WHEREAS, BNYMCM 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; and

WHEREAS, the Company has also entered into a sales agency financing agreement (the “ Alternative Sales Agency Agreement ”), dated of even date herewith, with Barclays Capital Inc. (the “ Alternative Sales Agent ”), for the issuance and sale from time to time through the Alternative Sales Agent of Common Shares on the terms set forth in the Alternative Sales Agency Agreement. This Agreement and the Alternative Sales Agency Agreement are collectively referred to herein as the “ Sales Agency Agreements .” The aggregate number of Common Shares to be issued and sold pursuant to the Sales Agency Agreements shall not exceed the Maximum Program Amount (as defined 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:

“ 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.

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“ Applicable Time ” means the time of sale of any Common Shares pursuant to this Agreement.

“ Basic Prospectus ” has the meaning set forth in Section 3.02 hereof.

“ Closing ” has the meaning set forth in Section 2.02 hereof.

“ 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 BNYMCM and the Alternative Sales Agent together shall have sold the Maximum Program Amount pursuant to this Agreement and the Alternative Sales Agency Agreement, (y) the date this Agreement is terminated pursuant to Article VII and (z) the third anniversary of the date of this Agreement.

“ Common Shares ” shall mean shares of the Company’s Common Stock issued or issuable pursuant to this Agreement and the Alternative Sales Agency Agreement.

“ Common Stock ” shall mean the Company’s Common Stock, $5 per share par value.

“ Effective Date ” has the meaning set forth in Section 3.02 hereof.

“ Exchange Act ” means the Securities Exchange Act of 1934, as amended.

“ Final Supplemented Prospectus ” has the meaning set forth in Section 3.02 hereof.

“ Floor Price ” means the minimum price set by the Company in the Issuance Notice, below which BNYMCM 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 $5.00 per share.

“ Incorporated Documents ” has the meaning set forth in Section 3.02 hereof.

“ Issuance ” means each occasion the Company elects to exercise its right to deliver an Issuance Notice requiring BNYMCM 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 aggregate number of Issuance Shares to be sold by BNYMCM with respect to any Issuance, which may not exceed 10,000,000 Common Shares without the prior written consent of BNYMCM, which consent may be withheld in BNYMCM’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.

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“ Issuance Notice ” means a written notice to BNYMCM 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.

“ Maximum Program Amount ” means 20,000,000 Common Shares, representing the aggregate maximum number of shares that may be issued under the Sales Agency Agreements.

“ 1939 Act ” has the meaning set forth in Section 3.04 hereof.

“ 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 New York Stock Exchange.

“ Registration Statement ” has the meaning set forth in Section 3.02 hereof.

“ Representation Date ” has the meaning set forth in the introductory paragraph of Article III hereof.

“ Sales Price ” means the actual sale execution price of each Common Share sold by BNYMCM 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 1.000%.

“ 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 ” is when the Company shall deliver to BNYMCM the amount of Common Shares sold on the third business day following each Trading Day during the Selling Period and BNYMCM shall deliver to the Company the Issuance Price received on such sales. Alternatively, the Company may settle all sales for each Selling Period on the business day following the last day of the Selling Period, whereon the Company shall deliver to BNYMCM the amount of Common Shares sold during the Selling Period and BNYMCM shall deliver to the Company the Issuance Price received on such sales.

“ Trading Day ” means any day which is a trading day on the New York Stock Exchange, other than a day on which trading is scheduled to close prior to its regular weekday closing time.

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ARTICLE II

ISSUANCE AND SALE OF COMMON SHARES

Section 2.01      (a) Issuance . Upon the terms and subject to the conditions of this Agreement, the Company may issue Common Shares through BNYMCM and BNYMCM shall use its commercially reasonable efforts to sell Common Shares, 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 and the Alternative Sales Agency Agreement equals the Maximum Program Amount or this Agreement is 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, BNYMCM will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Issuance Shares up to the amount specified in such Issuance Notice into the Principal Market, and otherwise in accordance with the terms of such Issuance Notice. BNYMCM 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 number of Issuance Shares sold on the preceding Trading Day, the corresponding Sales Price and the Issuance Price payable to the Company in respect thereof. BNYMCM may sell Issuance Shares in the manner described in Section 2.01(b) hereof. The Company acknowledges and agrees that (i) there can be no assurance that BNYMCM will be successful in selling Issuance Shares and (ii) BNYMCM 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 BNYMCM 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, BNYMCM 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 in any method or payment permitted by law 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 to or through a market maker or through an electronic communications network.

(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 Sections 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 Treasurer or any Assistant Treasurer of the Company, to BNYMCM. The number of Issuance Shares that BNYMCM shall use its commercially reasonable efforts to sell pursuant to such Issuance shall have an aggregate Sales Price equal to the Issuance Amount. Each Issuance will be settled on the applicable Settlement Date following the Issuance Date.

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

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which shall be deemed to occur simultaneously with the Closing: (i) the Company shall deliver to BNYMCM a certificate executed by the Secretary or an Assistant 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 or a duly authorized committee thereof of the Company authorizing the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby (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 this Agreement for or on behalf of the Company; (ii) the Company shall deliver to BNYMCM a certificate executed by the President, any Vice President, the Treasurer or any Assistant Treasurer 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 and that the Company has performed all of its obligations hereunder to be performed on or prior to the Closing Date and as to the matters set forth in Sections 5.01(a)(i) and 5.01(d) hereof; (iii) Troutman Sanders LLP, counsel to the Company, shall deliver to BNYMCM an opinion, dated the date of the Closing and addressed to BNYMCM, substantially in the form of Exhibit B attached hereto; (iv) Deloitte & Touche LLP shall deliver to BNYMCM a letter, dated the Closing Date, substantially in the form of Exhibit C attached hereto; and (v) the Company shall pay the expenses set forth in Section 9.02(ii), (iv) and (viii) hereof by wire transfer to the account designated by BNYMCM in writing prior to the Closing.

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 BNYMCM, subject to the satisfaction of the conditions set forth in Sections 5.01 and 5.02 hereof; provided, however, that notwithstanding anything in this Agreement to the contrary, BNYMCM shall have no further obligations with respect to any Issuance Notice if and to the extent the number of Issuance Shares sold pursuant thereto, together with the aggregate number of Common Shares previously sold under this Agreement and the Alternative Sales Agreement, shall equal 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, e-mail or otherwise (and the Company confirms such delivery by e-mail notice or by telephone (including voicemail message)) by BNYMCM. No Issuance Notice may be delivered other than on a Trading Day during the Commitment Period.

(c)      Floor Price . BNYMCM 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 in writing (including by e-mail) or by telephone (confirmed immediately by verifiable facsimile transmission or e-mail) to BNYMCM.

Section 2.04       Trading Guidelines . BNYMCM 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 (except to the extent BNYMCM may engage in sales of Issuance Shares purchased or deemed purchased from the Company as a “riskless principal” or in a

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similar capacity) and (ii) the Company shall not be deemed to have authorized or consented to any such purchases or sales by BNYMCM. In addition, the Company hereby acknowledges and agrees that BNYMCM and BNYMCM’s affiliates 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 BNYMCM is acting as agent pursuant to this Agreement.

Section 2.05       Settlements . Subject to the provisions of Article V hereof, on or before each Settlement Date, the Company will, or will cause its transfer agent to, electronically transfer the Issuance Shares being sold by crediting BNYMCM or its designee’s account at The Depository Trust Company through its Deposit/Withdrawal At Custodian (DWAC) System, or by such other means of delivery as may be mutually agreed upon by the parties hereto, and, upon receipt of such Issuance Shares, which in all cases shall be freely tradeable, transferable, registered shares in good deliverable form, BNYMCM will deliver the related Issuance Price in same day funds delivered to an account designated by the Company prior to the Settlement Date. If the Company defaults in its obligation to deliver Issuance Shares on a Settlement Date, the Company agrees that it will (i) hold BNYMCM 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 BNYMCM any Selling Commission to which it would otherwise have been entitled absent such default. The parties acknowledge and agree that, in performing its obligations under this Agreement, BNYMCM may borrow shares of Common Stock from stock lenders, and may use the Issuance Shares to settle or close out such borrowings.

Section 2.06       Use of Free Writing Prospectus . Neither the Company nor BNYMCM 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. Any “free writing prospectus” the use of which has been consented to in writing by the Company and BNYMCM is hereinafter referred to as a “ Permitted Free Writing Prospectus .”

ARTICLE III

REPRESENTATIONS AND WARRANTIES OF THE COMPANY

The Company represents and warrants to, and agrees with, BNYMCM 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 Final Supplemented 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 Final Supplemented Prospectus (including any documents incorporated by reference therein and any supplements thereto) on or before a Representation Date:

Section 3.01       Listing . 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 “SO.” Prior to the delivery of any Issuance Notice, the Common Shares shall have been listed on the Principal Market, subject to notice of issuance.

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Section 3.02       Registration . (a) A registration statement on Form S-3 (File No. 333-159072) in respect of the Common Shares and certain other securities has been prepared and filed in accordance with the provisions of the Securities Act with the Commission; such registration statement and any post-effective amendment thereto, each in the form heretofore delivered or to be delivered to BNYMCM, became effective upon filing with the Commission in such form (except that copies of the registration statement and any post-effective amendment delivered to BNYMCM need not include exhibits but shall include all documents incorporated by reference therein); and no stop order suspending the effectiveness of such registration statement has been issued and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering has been initiated or, to the best knowledge of the Company, threatened by the Commission; as used herein, “ Registration Statement ” means, at any specified time, such registration statement and any amendment or amendments thereto, as used with respect to the Common Shares, including information deemed a part thereof at such time pursuant to Rule 430B(f)(1) under the Securities Act, including the exhibits thereto and all documents incorporated by reference therein pursuant to Item 12 of Form S-3 at such time; as used herein, “ Effective Date ” means any date of such registration statement’s effectiveness for purposes of Section 11 of the Securities Act, as such section applies to the Company and BNYMCM for the Common Shares pursuant to Rule 430B(f)(2) under the Securities Act; the base prospectus relating to the Common Shares and certain other securities of the Company, in the form in which it has most recently been filed with the Commission on or prior to the date of this Agreement, relating to the Common Shares is hereinafter called the “ Basic Prospectus ”; the Basic Prospectus as amended or supplemented in final form, including by a prospectus supplement relating to the Common Shares in the form in which it is filed with the Commission, pursuant to Rule 424(b) under the Securities Act in accordance with Section 4.05 hereof is hereinafter called the “ Final Supplemented Prospectus ”; any reference herein to the Basic Prospectus or the Final Supplemented Prospectus shall be deemed to refer to and include, as of any specified time, the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities Act, as of such time; any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement; and as used herein, “ Incorporated Documents ” means, at any specified time, the documents incorporated by reference in the Registration Statement or the Final Supplemented Prospectus at such time.

Section 3.03       Incorporated Documents . The Incorporated Documents, when they were filed with the Commission, complied in all material respects with the applicable provisions of the Exchange Act and the rules and regulations of the Commission thereunder and, as of such time of filing, when read together with the Final Supplemented Prospectus, none of such documents contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the Company makes no warranty or representation to BNYMCM with respect to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by BNYMCM expressly for use in the Final Supplemented Prospectus.

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Section 3.04       Compliance and Disclosure . The Registration Statement and the Final Supplemented Prospectus comply in all material respects with the applicable provisions of the Securities Act, the Exchange Act and the General Rules and Regulations of the Commission thereunder and the Registration Statement and the Final Supplemented Prospectus do not and will not, (i) as of any Effective Date as to the Registration Statement and any amendment thereto, (ii) at each Representation Date and, with respect to the Final Supplemented Prospectus, as of each Applicable Time and (iii) as of the date of the Final Supplemented Prospectus as to the Final Supplemented Prospectus or as of the date when any supplement is filed as to the Final Supplemented Prospectus as further supplemented contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the case of the Registration Statement and any amendment thereto, and, in the light of the circumstances under which they were made, not misleading in the case of the Final Supplemented Prospectus as further supplemented; except that the Company makes no warranties or representations with respect to (A) that part of the Registration Statement which shall constitute the Statement of Eligibility (Form T-1) under the Trust Indenture Act of 1939, as amended (the “ 1939 Act ”), or (B) any statements or omissions made in the Registration Statement or the Final Supplemented Prospectus in reliance upon and in conformity with information furnished in writing to the Company by BNYMCM expressly for use therein.

Section 3.05       Well-Known Seasoned Issuer . (a) With respect to the Registration Statement, (i) the Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405 under the Securities Act), (ii) the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to the use of the automatic shelf registration statement and (iii) the conditions for use of Form S-3, as set forth in the General Instructions thereof, have been satisfied.

(b)     (A) At the time of filing of the Registration Statement, (B) at the time of the most recent amendment to the Registration Statement for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus) and (C) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Common Shares in reliance on the exemption of Rule 163 under the Securities Act, the Company was a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act).

(c)     At the determination date for purposes of the Common Shares within the meaning of Rule 164(h) under the Securities Act, the Company was not an “ineligible issuer” as defined in Rule 405 under the Securities Act.

Section 3.06       Material Adverse Change . Since the most recent dates as of which information is given in the Registration Statement and the Final Supplemented Prospectus, except as otherwise stated therein, there has been no material adverse change in the business, properties or financial condition of the Company, whether or not arising in the ordinary course of business (“ Material Adverse Change ”).

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Section 3.07       Due Incorporation . The Company has been duly incorporated and is validly existing and in good standing as a corporation under the laws of the State of Delaware and has due corporate authority to conduct the business in which it is engaged and to own and operate the properties used by it in such business, to enter into and perform its obligations under this Agreement and to issue and sell the Common Shares.

Section 3.08       Authorization of Agreement . This Agreement has been duly authorized, executed and delivered by the Company.

Section 3.09       Authorization and Description of Common Shares . The Common Shares, when issued and delivered by the Company pursuant to this Agreement against payment of the consideration set forth in this Agreement, will be duly authorized, validly issued, fully paid and nonassessable and will not be subject to any preemptive or similar right under (i) the statutes, judicial and administrative decisions, and the rules and regulations of the governmental agencies of the State of Delaware, (ii) the Company’s Certificate of Incorporation or By-Laws or (iii) any instrument, document, contract or other agreement filed as an exhibit to the Registration Statement. The Common Stock, including the Common Shares, will conform in all material respects to all statements relating thereto contained in the Registration Statement and the Final Supplemented Prospectus.

Section 3.10       Investment Company Act . The Company is not and, after giving effect to the offering and sale of the Common Shares, will not be an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.

Section 3.11       No Conflicts . The execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the transactions contemplated herein and compliance by the Company with its obligations hereunder shall have been duly authorized by all necessary corporate action on the part of the Company and do not and will not result in any violation of the Certificate of Incorporation or By-Laws of the Company, and do not and will not conflict with, or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company under (A) any contract, indenture, mortgage, loan agreement, note, lease or other agreement or instrument to which the Company is a party or by which it may be bound or to which any of its properties may be subject (except for conflicts, breaches or defaults which would not, individually or in the aggregate, be materially adverse to the Company or materially adverse to the transactions contemplated by this Agreement), or (B) any existing applicable law, rule, regulation, judgment, order or decree of any government, governmental instrumentality or court, domestic or foreign, or any regulatory body or administrative agency or other governmental body having jurisdiction over the Company, or any of its properties.

Section 3.12       Regulatory Approvals . No authorization, approval, consent or order of any court or governmental authority or agency is necessary in connection with the issuance and sale by the Company of the Common Shares or the transactions by the Company contemplated in this Agreement, except (A) such as may be required under the Securities Act or the rules and

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regulations thereunder and (B) such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or “blue sky” laws.

Section 3.13       Financial Statements . The financial statements incorporated by reference in the Registration Statement and the Final Supplemented Prospectus, together with the related schedules and notes, present fairly, in all material respects, the financial position, results of operations and cash flows of the Company as of and for the dates indicated; said financial statements have been prepared in conformity with accounting principles generally accepted in the United States (“ GAAP ”) applied on a consistent basis (except that the unaudited financial statements incorporated by reference in the Registration Statement and the Final Supplemented Prospectus may be subject to normal year-end adjustments) throughout the periods involved and necessarily include amounts that are based on the best estimates and judgments of management. The selected financial data and the summary financial information included in the Final Supplemented Prospectus present fairly the information shown therein and have been compiled on a basis consistent with that of the audited and unaudited financial statements incorporated by reference in the Registration Statement. Any historical pro forma financial statements of the Company included or incorporated by reference in the Registration Statement have been prepared in accordance with the applicable requirements of the Securities Act and the Exchange Act, as applicable. The assumptions used in preparing any pro forma financial statements of the Company included or incorporated by reference in the Registration Statement and the Final Supplemented Prospectus provide a reasonable basis for presenting the significant effects directly attributable to the transactions or events described therein; any related pro forma adjustments give appropriate effect to those assumptions in all material respects; and any pro forma columns therein reflect the proper application of those adjustments to the corresponding historical financial statement amounts in all material respects.

Section 3.14       Sale of Common Shares . Immediately after any sale of Common Shares by the Company hereunder, the aggregate amount of Common Shares that have been issued and sold by the Company hereunder will not exceed the aggregate amount of Common Stock registered and available under the Registration Statement (in this regard, the Company acknowledges and agrees that, although BNYMCM will be required to maintain records of the Common Shares sold pursuant to any Issuance Notice, BNYMCM shall have no responsibility for maintaining records with respect to the availability of Common Stock for sale pursuant to the Registration Statement).

ARTICLE IV

COVENANTS

The Company covenants and agrees during the term of this Agreement with BNYMCM as follows:

Section 4.01       Stop Order . As soon as the Company is advised thereof, the Company will advise BNYMCM orally of the issuance of any stop order under the Securities Act with respect to the Registration Statement, or the institution of any proceedings for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Common Shares, of which the Company shall have received notice, and will use its best efforts

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to prevent the issuance of any such stop order and to secure the prompt removal thereof, if issued.

Section 4.02       Copies . The Company will furnish BNYMCM with written or electronic copies of the Registration Statement, the Final Supplemented Prospectus and each amendment and supplement to the Final Supplemented Prospectus relating to the offering of the Common Shares in such quantities as BNYMCM may from time to time reasonably request; and, if the delivery of a prospectus is required under the Securities Act or under the blue sky or securities laws of any jurisdiction in the United States at any time on or prior to the applicable Settlement Date for any Selling Period in connection with the offering or sale of Common Shares and if at such time any event relating to or affecting the Company has occurred as a result of which the Final Supplemented Prospectus as then amended or supplemented 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 Final Supplemented Prospectus is delivered, not misleading, or, if for any other reason it is necessary during such same period to amend or supplement the Final Supplemented Prospectus or to file under the Exchange Act any document incorporated by reference in the Final Supplemented Prospectus in order to comply with the Securities Act or the Exchange Act, will notify BNYMCM and will direct BNYMCM to suspend offers to sell Common Shares (and, if so notified, BNYMCM shall cease such offers as soon as practicable); and if the Company decides to amend or supplement the Registration Statement or the Final Supplemented Prospectus as then amended or supplemented, the Company will advise BNYMCM promptly by telephone (with confirmation in writing) and will prepare and cause to be filed promptly with the Commission an amendment or supplement to the Registration Statement or the Final Supplemented Prospectus as then amended or supplemented that will correct such statement or omission or effect such compliance; provided, however, that if during such same period BNYMCM is required to deliver a prospectus in respect of transactions in the Common Shares, the Company shall prepare and file with the Commission in a timely manner such an amendment or supplement.

Section 4.03       Blue Sky . The Company will endeavor, in cooperation with BNYMCM, to qualify the Common Shares for offering and sale under the applicable securities laws of such states and the other jurisdictions of the United States as BNYMCM may designate; provided, however, that the Company shall not be obligated to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to file a consent to service of process or to file annual reports or to comply with any other requirements in connection with such qualification deemed by the Company to be unduly burdensome.

Section 4.04       Rule 158 . The Company will make generally available to its security holders as soon as practicable but not later than 45 days after the close of the period covered thereby, an earnings statement of the Company (in form complying with the provisions of Rule 158 of the rules and regulations under the Securities Act) covering a twelve-month period beginning not later than the first day of the Company’s fiscal quarter next following the “effective date” (as defined in Rule 158) of the Registration Statement.

Section 4.05       Rule 424 Filing . The Company will file the Final Supplemented Prospectus, in a form approved by BNYMCM, such approval not to be unreasonably withheld, with the Commission on the date of this Agreement, and will advise BNYMCM of such filing

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and will confirm such advice in writing. Furthermore, the Company will make any other required filings pursuant to Rule 433(d)(1) of the Securities Act within the time required by such Rule.

Section 4.06       WKSI Status . If at any time when Common Shares remain unsold by BNYMCM, the Company receives from the Commission a notice pursuant to Rule 401(g)(2) of the Securities Act or otherwise ceases to be eligible to use the automatic shelf registration statement form, the Company will (i) promptly notify BNYMCM, (ii) promptly file a new registration statement or post-effective amendment on the proper form relating to the Common Shares, in a form satisfactory to BNYMCM, (iii) use its reasonable best efforts to cause such registration statement or post-effective amendment to be declared effective and (iv) promptly notify BNYMCM of such effectiveness.