Exhibit 1.2
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 BARCLAYS CAPITAL INC., a registered
broker-dealer organized under the laws of the State of Connecticut
(“ Barclays ”).
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, Barclays 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 BNY Mellon Capital Markets, LLC (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.
“ 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
Barclays 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 Barclays 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 Barclays 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
Barclays with respect to any Issuance, which may not exceed
10,000,000 Common Shares without the prior written consent of
Barclays, which consent may be withheld in Barclays’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 Barclays 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
Barclays 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 Barclays the amount of
Common Shares sold on the third business day following each Trading
Day during the Selling Period and Barclays 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 Barclays the amount of Common Shares
sold during the Selling Period and Barclays 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.
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 Barclays and Barclays 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, Barclays 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. Barclays 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. Barclays 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
Barclays will be successful in selling Issuance Shares and (ii)
Barclays 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 Barclays 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, Barclays 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 Barclays. The number of Issuance Shares that Barclays
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 which shall be
deemed to occur simultaneously with the Closing: (i) the Company
shall deliver
to Barclays 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 Barclays 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 Barclays an
opinion, dated the date of the Closing and addressed to Barclays,
substantially in the form of Exhibit B attached hereto; (iv)
Deloitte & Touche LLP shall deliver to Barclays 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 Barclays 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 Barclays, 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, Barclays 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
Barclays. No Issuance Notice may be delivered other than on a
Trading Day during the Commitment Period.
(c) Floor
Price . Barclays 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
Barclays.
Section 2.04 Trading
Guidelines . Barclays 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 Barclays may
engage in sales of Issuance Shares purchased or deemed purchased
from the Company as a “riskless principal” or in a
similar capacity) and (ii) the Company shall not be deemed to have
authorized or consented to any such
purchases or sales by Barclays. In
addition, the Company hereby acknowledges and agrees that Barclays
and Barclays’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 Barclays 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 Barclays 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, Barclays
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 Barclays 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
Barclays 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,
Barclays 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 Barclays 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 Barclays 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, Barclays 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.
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
Barclays, became effective upon filing with the Commission in such
form (except that copies of the registration statement and any
post-effective amendment delivered to Barclays 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 Barclays 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
Barclays with respect to any statements or omissions made in
reliance upon and in conformity with information furnished in
writing to the Company by Barclays expressly for use in the Final
Supplemented Prospectus.
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 Barclays 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
”).
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 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 Barclays will be required to maintain
records of the Common Shares sold pursuant to any Issuance Notice,
Barclays 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 Barclays as
follows:
Section 4.01 Stop Order . As
soon as the Company is advised thereof, the Company will advise
Barclays 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 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 Barclays 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 Barclays 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 Barclays and will direct Barclays to
suspend offers to sell Common Shares (and, if so notified, Barclays
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 Barclays 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 Barclays 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 Barclays, 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 Barclays 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 Barclays, such approval not to be unreasonably
withheld, with the Commission on the date of this Agreement, and
will advise Barclays of such filing 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 Barclays, 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 Barclays, (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 Barclays, (iii) use its reasonable best efforts to
cause such registration statement or post-effective amendment to be
declared effective and (iv) promptly notify Barclays of such
effectiveness. The Company will take all other reasonable action
necessar
