EXECUTION COPY
2,500,000
Shares
ORMAT TECHNOLOGIES,
INC.
Common Stock
UNDERWRITING
AGREEMENT
December 14, 2006
LEHMAN BROTHERS INC.
745 Seventh Avenue
New York, NY 10019
Ladies and
Gentlemen:
Ormat Technologies, Inc., a
Delaware corporation (the ‘‘ Company
’’), proposes to sell 2,500,000 shares (the
‘‘ Stock ’’) of the Company’s
Common Stock, par value $0.001 per share (the ‘‘
Common Stock ’’) to Lehman Brothers Inc. (the
‘‘ Underwriter ’’). This is to
confirm the agreement concerning the purchase of the Stock from the
Company by the Underwriter.
SECTION 1.
Representations, Warranties and Agreements of the Company
. The Company represents, warrants and
agrees that:
(a) A
registration statement on Form S-3 relating to the Stock has (i)
been prepared by the Company in conformity with the requirements of
the Securities Act of 1933, as amended (the ‘‘
Securities Act ’’), and the rules and
regulations (the ‘‘ Rules and Regulations
’’) of the Securities and Exchange Commission (the
‘‘ Commission ’’) thereunder; (ii)
been filed with the Commission under the Securities Act; and (iii)
become effective under the Securities Act. Copies of such
registration statement and each of the amendments thereto have been
delivered by the Company to you as the Underwriter. As used in this
Agreement:
(i) ‘‘
Applicable Time ’’ means 8:40 a.m. (New York
City time) on the date of this Agreement;
(ii) ‘‘
Effective Date ’’ means any date as of which any
part of such registration statement relating to the Stock became,
or is deemed to have become, effective under the Securities Act in
accordance with the Rules and Regulations;
(iii) ‘‘
Issuer Free Writing Prospectus ’’ means each
‘‘free writing prospectus’’ (as defined in
Rule 405 of the Rules and Regulations) prepared by or on behalf of
the Company or used or referred to by the Company in connection
with the offering of the Stock;
(iv) ‘‘
Preliminary Prospectus ’’ means any preliminary
prospectus relating to the Stock included in such registration
statement or filed with the Commission pursuant to Rule 424(b) of
the Rules and Regulations, including any preliminary prospectus
supplement thereto relating to the Stock;
(v) ‘‘
Pricing Disclosure Package ’’ means, as of the
Applicable Time, the most recent Preliminary Prospectus, together
with each Issuer Free Writing Prospectus filed or used by the
Company on or before the Applicable Time, other than a road show
that is an Issuer Free Writing Prospectus under Rule 433 of the
Rules and Regulations;
(vi) ‘‘
Prospectus ’’ means the final prospectus
relating to the Stock, including any prospectus supplement thereto
relating to the Stock, as filed with the Commission pursuant to
Rule 424(b) of the Rules and Regulations; and
(vii) ‘‘
Registration Statement ’’ means, collectively,
the various parts of such registration statement, each as amended
as of the Effective Date for such part, including any Preliminary
Prospectus or the Prospectus and all exhibits to such registration
statement.
Any reference to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and
include any documents incorporated by reference therein pursuant to
Form S-3 under the Securities Act as of the date of such
Preliminary Prospectus or the Prospectus, as the case may be. Any
reference to the ‘‘most recent Preliminary
Prospectus’’ shall be deemed to refer to the latest
Preliminary Prospectus included in the Registration Statement or
filed pursuant to Rule 424(b) prior to or on the date hereof
(including, for purposes hereof, any documents incorporated by
reference therein prior to or on the date hereof). Any reference to
any amendment or supplement to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any document
filed under the Securities Exchange Act of 1934, as amended (the
‘‘ Exchange Act ’’), after the date
of such Preliminary Prospectus or the Prospectus, as the case may
be, and incorporated by reference in such Preliminary Prospectus or
the Prospectus, as the case may be; and any reference to any
amendment to the Registration Statement shall be deemed to include
any annual report of the Company on Form 10-K filed with the
Commission pursuant to Section 13(a) or 15(d) of the Exchange Act
after the Effective Date that is incorporated by reference in the
Registration Statement. The Commission has not issued any order
preventing or suspending the use of any Preliminary Prospectus or
the Prospectus or suspending the effectiveness of the Registration
Statement, and no proceeding or examination for such purpose has
been instituted or threatened by the Commission.
(b) The
Company was not at the time of initial filing of the Registration
Statement and at the earliest time thereafter that the Company or
another offering participant made a bona fide offer (within the
meaning of Rule 164(h)(2) of the Rules and Regulations) of the
Stock, is not on the date hereof and will not be on the Delivery
Date (as defined in Section 4) an ‘‘ineligible
issuer’’ (as defined in Rule 405 of the Rules and
Regulations). The Company has been since the time of initial filing
of the Registration Statement and continues to be eligible to use
Form S-3 for the offering of the Stock.
(c) The
Registration Statement conformed and will conform in all material
respects on the Effective Date and on the Delivery Date, and any
amendment to the Registration Statement filed after the date hereof
will conform in all material respects when filed, to the
requirements of the Securities Act and the Rules and Regulations.
The Preliminary Prospectus conformed, and the Prospectus will
conform, in all material respects when filed with the Commission
pursuant to Rule 424(b) and on the Delivery Date to the
requirements of the Securities Act and the Rules and Regulations.
The documents incorporated by reference in any Preliminary
Prospectus or the Prospectus conformed, and any further documents
so incorporated will conform, when filed with the Commission, in
all material respects to the requirements of the Exchange Act or
the Securities Act, as applicable, and the rules and regulations of
the Commission thereunder.
(d) The
Registration Statement did not, as of the Effective Date, 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; provided that no
representation or warranty is made as to information contained in
or omitted from the Registration Statement in reliance upon and in
conformity with written information furnished to the Company
through the Underwriter by or on behalf of the Underwriter
specifically for inclusion therein.
(e) The
Prospectus will not, as of its date and on the Delivery Date,
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, in the light of the circumstances under
which they were made, not misleading; provided that no
representation or warranty is made as to information contained in
or omitted from the Prospectus in reliance upon and in conformity
with written information furnished to the Company through the
Underwriter by or on behalf of the Underwriter specifically for
inclusion therein.
(f) The
documents incorporated by reference in any Preliminary Prospectus
or the Prospectus did not, and any further documents filed and
incorporated by reference therein will not, when filed with the
Commission, 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, in the light of the circumstances
under which they were made, not misleading.
2
(g) The
Pricing Disclosure Package did not, as of the Applicable Time,
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, in the light of the circumstances under
which they were made, not misleading, except that the price of the
Stock and disclosures directly relating thereto will be included on
the cover page of the Prospectus; provided that no
representation or warranty is made as to information contained in
or omitted from the Pricing Disclosure Package in reliance upon and
in conformity with written information furnished to the Company
through the Underwriter by or on behalf of the Underwriter
specifically for inclusion therein.
(h) Each
Issuer Free Writing Prospectus (including, without limitation, any
road show that is a free writing prospectus under Rule 433), when
considered together with the Pricing Disclosure Package as of the
Applicable Time, did 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, in the light of the
circumstances under which they were made, not misleading, except
that the price of the Stock and disclosures directly relating
thereto will be included on the cover page of the
Prospectus.
(i) Each
Issuer Free Writing Prospectus conformed or will conform in all
material respects to the requirements of the Securities Act and the
Rules and Regulations on the date of first use, and the Company has
complied with any filing requirements applicable to such Issuer
Free Writing Prospectus pursuant to the Rules and Regulations. The
Company has not made any offer relating to the Stock that would
constitute an Issuer Free Writing Prospectus without the prior
written consent of the Underwriter. The Company has retained in
accordance with the Rules and Regulations all Issuer Free Writing
Prospectuses that were not required to be filed pursuant to the
Rules and Regulations.
(j) The
Company and each of its subsidiaries (as defined in Section 16)
have been duly incorporated or formed, as applicable, and are
validly existing as corporations, limited liability companies or
partnerships, as applicable, in good standing under the laws of
their respective jurisdictions of incorporation, are duly qualified
to do business and are in good standing as foreign corporations,
limited liability companies or partnerships, as applicable, in each
jurisdiction in which their respective ownership or lease of
property or the conduct of their respective businesses requires
such qualification, except where the failure to be so qualified or
in good standing would not have, individually or in the aggregate,
a material adverse effect on the general affairs, management,
business, prospects, financial condition, revenues or expenses,
properties, stockholders’ equity or results of operations of
the Company and its subsidiaries taken as a whole (a ‘‘
Material Adverse Effect ’’), and have all power
and authority necessary to own or hold their respective properties
and to conduct the businesses in which they are engaged; and none
of the subsidiaries of the Company other than those listed on
Schedule 2 hereto is a ‘‘significant
subsidiary’’, as such term is defined in Rule 405 of
the Rules and Regulations.
(k) The
Company has an authorized capitalization as set forth in the
Pricing Disclosure Package. All of the issued shares of capital
stock of the Company have been duly and validly authorized and
issued, were issued in compliance with federal and state securities
laws. All of the Company’s options, warrants and other rights
to purchase or exchange any securities for shares of the
Company’s capital stock have been duly and validly authorized
and issued, were issued in compliance with federal and state
securities laws, and conform to the description thereof contained
in the most recent Preliminary Prospectus and the Prospectus. All
of the issued shares of capital stock, limited liability company
interests or partnership interests, as applicable, of each
subsidiary of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable and are owned directly
or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims, other than as set forth in the
most recent Preliminary Prospectus and the Prospectus. The Company
has not, at any time, granted any preemptive rights, resale rights,
rights of first refusal or similar rights with respect to its
capital stock.
(l) The
shares of the Stock to be issued and sold by the Company to the
Underwriter hereunder have been duly and validly authorized and,
when issued and delivered against payment therefor in accordance
with this Agreement, will be duly and validly issued, fully paid
and non-assessable and free of statutory and contractual preemptive
rights, resale rights, rights of first refusal and
similar
3
rights; and the Stock will conform
to the description of the material terms thereof contained in the
most recent Preliminary Prospectus and the Prospectus under the
caption ‘‘Description of Common Stock We May
Offer’’. Upon payment for and delivery of the Stock to
be sold by the Company pursuant to this Agreement, the Underwriter
will acquire good and valid title to such Stock, in each case free
and clear of all liens, encumbrances, equities, preemptive rights,
subscription rights, other rights to purchase, voting or transfer
restrictions and other claims.
(m) This
Agreement has been duly authorized, executed and delivered by the
Company.
(n) The
execution, delivery and performance of this Agreement by the
Company and the consummation of the transactions contemplated
hereby and the application of the proceeds from the sale of Stock
as described under ‘‘Use of Proceeds’’ in
the most recent Preliminary Prospectus and the Prospectus will not
conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, nor will such
actions result in any violation of the provisions of the charter or
by-laws of the Company or any of its subsidiaries or any statute or
any order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties or assets; and except for
the registration of the Stock under the Securities Act and such
consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act, the
applicable state securities laws or by the New York Stock Exchange,
Inc., if any, in connection with the purchase and distribution of
the Stock by the Underwriter, no consent, approval, authorization
or order of, or filing or registration with, any such court or
governmental agency or body is required for the execution, delivery
and performance of this Agreement by the Company and the
consummation of the transactions contemplated
hereby.
(o) Except
as described in the most recent Preliminary Prospectus, there are
no contracts, agreements or understandings between the Company and
any person granting such person the right to require the Company to
file a registration statement under the Securities Act with respect
to any securities of the Company owned or to be owned by such
person or to require the Company to include such securities in the
securities registered pursuant to the Registration Statement or in
any securities being registered pursuant to any other registration
statement filed by the Company under the Securities Act. With the
exception of Ormat Industries Ltd., the holders of outstanding
shares of the Company’s capital stock are not entitled to
preemptive rights, co-sale rights, rights of first refusal or other
rights to subscribe for or purchase any shares of the Stock and
there are no contracts, agreements or understandings between the
Company and any person granting such person such preemptive rights,
co-sale rights, rights of first refusal or other rights to
subscribe for or purchase the Stock. Except for the options to
purchase from the Company 539,288 shares of Common Stock, in the
aggregate, granted to directors, officers and employees of the
Company under the Company’s Ormat Technologies, Inc. 2004
Incentive Compensation Plan (the ‘‘ 2004 Plan
’’), there are no options, warrants or other rights to
purchase from the Company, agreements or other obligations of the
Company to issue, or right to convert any obligations of the
Company into or exchange any securities of the Company for shares
of Capital Stock of or ownership interests in the
Company.
(p) The
Company has not sold or issued any shares of Common Stock during
the six-month period preceding the date of the Prospectus,
including any sales pursuant to Rule 144A or Regulation D or S
under the Securities Act other than shares underlying options
issued pursuant to the 2004 Plan.
(q) Neither
the Company nor any of its subsidiaries has sustained, since the
date of the latest audited financial statements included or
incorporated by reference in the most recent Preliminary
Prospectus, any material loss or interference with its business
from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth
or contemplated in the most recent Preliminary Prospectus; and,
since such date, there has not been any change in the capital
stock, limited liability company interests or partnership
interests, as applicable, or long-term debt of the Company or any
of
4
its subsidiaries or any material
adverse change, or any development reasonably likely to have a
Material Adverse Effect, otherwise than as set forth or
contemplated in the most recent Preliminary
Prospectus.
(r) The
financial statements (including the related notes and supporting
schedules) included or incorporated by reference in the most recent
Preliminary Prospectus present fairly the financial condition and
results of operations of the entities purported to be shown
thereby, at the dates and for the periods indicated, and have been
prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods
involved. There are no material off-balance sheet arrangements (as
defined in Regulation S-K Item 303(a)(4)(ii)) that are reasonably
likely to have a current or future material effect on the
Company’s financial condition, revenues or expenses, results
of operations, liquidity, capital expenditures or capital
resources.
(s) PricewaterhouseCoopers
LLP, who have certified certain financial statements of the
Company, whose report appears in the most recent Preliminary
Prospectus or is incorporated by reference therein and who have
delivered the letters referred to in Section 7(h) hereof, are
independent public accountants as required by the Securities Act
and the Rules and Regulations. Except as described in the most
recent Preliminary Prospectus and as preapproved in accordance with
the requirements set forth in Section 10A of the Exchange Act,
since May 6, 2003, PricewaterhouseCoopers LLP has, to the best of
the Company’s knowledge, not engaged in any
‘‘prohibited activities’’ (as defined in
Section 10A of the Exchange Act) on behalf of the
Company.
(t) The
Company and each of its subsidiaries have good and marketable title
in fee simple to all real property owned by them and good and
marketable title to all personal property owned by them that is
material to the business of the Company and its subsidiaries, in
each case, free and clear of all liens, encumbrances and defects,
except such as are described in the most recent Preliminary
Prospectus or such as do not materially affect the value of such
property and do not materially interfere with the use made and
proposed to be made of such property by the Company and its
subsidiaries; and all assets held under lease by the Company and
its subsidiaries (including, without limitation, all geothermal
resources held under lease) are held by them under valid,
subsisting and enforceable leases, with such exceptions as are not
material and do not interfere with the use made and proposed to be
made of such property and buildings by the Company and its
subsidiaries, in each case, except as described in or contemplated
by the most recent Preliminary Prospectus.
(u) The
statistical and market-related data included in the most recent
Preliminary Prospectus and the consolidated financial statements of
the Company and its subsidiaries included or incorporated by
reference in the most recent Preliminary Prospectus are based on or
derived from sources that the Company believes to be reliable and
accurate.
(v) The
leases (including, without limitation, all geothermal resources
leases), easements, licenses, rights of way and other rights
possessed by the Company and its subsidiaries provide the Company
and its subsidiaries with all rights and property interests
required to enable them to obtain, in all material respects, all
services, materials (including, without limitation, geothermal
resources) or rights (including, without limitation, access rights
and rights to extract and develop such geothermal resources that
may exist in the properties covered by such geothermal resources
leases) required for the operation and maintenance of their
operating projects, as contemplated by the most recent Preliminary
Prospectus.
(w) Each of
the power purchase agreements, transmission agreements,
interconnection agreements, financing documents, leases and other
agreements referred to in the most recent Preliminary Prospectus is
a valid and binding agreement, enforceable against each party
thereto in accordance with its terms, except as such enforceability
(i) may be limited by applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar
laws affecting the enforcement of creditors’ rights generally
and (ii) is subject to general principles of equity (regardless of
whether enforceability is considered in a proceeding in equity or
at law) and, except as described in the most recent Preliminary
Prospectus, the Company and any subsidiary of the Company are not
in any material default, and have no knowledge of any material
default of any of the counterparties
5
thereto, under any such power
purchase agreement, transmission agreement, interconnection
agreement, financing document, lease or other agreement referred to
in the most recent Preliminary Prospectus.
(x) The
Company and each of its subsidiaries carry, or are covered by,
insurance in such amounts and covering such risks as is adequate
for the conduct of their respective businesses and the value of
their respective properties and as is customary for companies
engaged in similar businesses in similar
industries.
(y) The
Company conducts no business other than as described in the most
recent Preliminary Prospectus (other than non-material business
activities, which in the aggregate, do not represent an investment
expense in excess of $2 million, and business activities relating
to the development of the Company’s solar power technology
and to the application of its Recovered Energy Generation
technology to the liquefied natural gas
industry).
(z) The
Company and its subsidiaries own or possess adequate rights to use
all patents, patent applications, trademarks, service marks,
service names, trade names, trademark registrations, service mark
registrations, copyrights, inventions, trade secrets, licenses and
other intellectual property necessary for the conduct of their
respective businesses (collectively, the ‘‘
Intellectual Property ’’) and, other than with
respect to Intellectual Property covered by licenses permitting
Company, Ormat Industries Ltd. or OPTI Canada Inc. use, are not
aware of any rights of third parties to any such Intellectual
Property. The Company and its subsidiaries have no reason to
believe that the conduct of their respective businesses conflict,
infringe or misappropriate, or will conflict with, infringe or
misappropriate, the intellectual property rights of others, and
have not received any notice of any claim of conflict with,
infringement or misappropriation of, the intellectual property
rights of others. There is no pending or, to the Company’s
best knowledge, threatened action, suit, proceeding or claim by
others challenging the validity or scope of such Intellectual
Property (and the Company and its subsidiaries are not aware of any
facts which would form a reasonable basis for such claim). To the
Company’s and its subsidiaries’ best knowledge: (a)
there is no infringement by third parties of any such Intellectual
Property and (b) there is no U.S. patent or published U.S. patent
application which contains claims that dominate or may dominate any
Intellectual Property or that interferes with the issued or pending
claims of any such Intellectual Property. There is no prior art of
which the Company or its subsidiaries is aware that may render any
U.S. patent held by the Company or its subsidiaries invalid or any
U.S. patent application held by the Company or its subsidiaries
unpatentable, which has not been disclosed to the U.S. Patent and
Trademark Office.
(aa) 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 or assets of the Company or any of its subsidiaries is the
subject which, if determined adversely to the Company or any of its
subsidiaries, could reasonably be expected to 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.
(bb) Except
as disclosed in the most recent Preliminary Prospectus, the Company
and each of its subsidiaries possess adequate certificates,
authorizations or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business described in
the most recent Preliminary Prospectus, except for such
certificates, authorizations or permits that the failure to so
possess would not, individually or in the aggregate, have a
Material Adverse Effect and except for those not yet required to be
obtained by the Company, which the Company intends to obtain in due
course. The Company, and each of its subsidiaries have not received
any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit that
would, individually or in the aggregate, have a Material Adverse
Effect.
(cc) There
are no contracts or other documents, which are required to be
described in the documents incorporated by reference into the most
recent Preliminary Prospectus or filed as exhibits to such
documents by the Securities Act or by the Rules and Regulations,
which have not been described in such documents or filed as
exhibits to such documents. Each contract, agreement or arrangement
to which the Company or any of its subsidiaries is a party or by
which it may be bound,
6
or to which any of the property or
assets of the Company or any of its subsidiaries is subject, has
been duly and validly authorized, executed and delivered by the
Company or any of its subsidiaries, as the case may be; neither the
Company nor any of its subsidiaries knows of any present condition
or fact which would prevent compliance by the Company or any of its
subsidiaries or any other party thereto with the terms of any such
contract, agreement or arrangement in accordance with its terms;
except as described in the most recent Preliminary Prospectus,
neither the Company nor any of its subsidiaries has any present
intention to exercise any right that it may have to cancel any such
contract, agreement or arrangement or otherwise to terminate its
rights and obligations thereunder other than in the ordinary course
of business, and neither the Company nor any of its subsidiaries
has any knowledge that any other party to any such contract,
agreement or arrangement has any current intention not to render
full performance as contemplated by the terms
thereof.
(dd) Except
as described in the most recent Preliminary Prospectus, no
relationships (including without limitation any loans or advances),
direct or indirect, exists, nor has any transaction been entered
into since January 1, 2001, between or among the Company and its
subsidiaries on the one hand, and the directors, officers,
shareholders of the Company or any subsidiary on the other hand.
Since July 30, 2002, the Company has not, directly or indirectly,
including through any subsidiary, extended or maintained credit, or
arranged for the extension of credit, or renewed or amended any
extension of credit, in the form of a personal loan to or for any
of its directors or executive officers.
(ee) No
labor disturbance by the employees of the Company exists or, to the
knowledge of the Company, is imminent, which could reasonably be
expected to have a Material Adverse Effect.
(ff) Each of
the Company’s operating projects in the United States, other
than the Puna Facility, is a ‘‘qualifying small power
production facility’’ within the meaning of Section
3(17)(C) of the Federal Power Act, as amended (‘‘
FPA ’’) and a ‘‘qualifying
facility’’ within the meaning of 18 C.F.R.
§292.101(b)(1) that is eligible for the regulatory exemptions
set forth in 18 C.F.R. Sections 292.601 and 292.602 from the FPA
and from certain state laws and regulations.
(gg) Puna
Geothermal Venture, L.P. is the owner of the Puna Facility and is
an ‘‘exempt wholesale generator’’ as such
term is defined in Section 1262(6) of the Public Utility Holding
Company Act of 2005 (‘‘ PUHCA
’’).
(hh) The
Company and its subsidiaries are eligible for an exemption from
PUHCA.
(ii) The
Company is in compliance in all material respects with all
presently applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended, including the regulations and
published interpretations thereunder (‘‘ ERISA
’’); no ‘‘ reportable event
’’ (as defined in Section 4043 of ERISA) has occurred
with respect to any ‘‘ pension plan
’’ subject to Title IV of ERISA (a ‘‘Title
IV Plan’’) (as defined in ERISA) for which the Company
would have any liability; the Company has not incurred and does not
expect to incur liability under (i) Title IV of ERISA with respect
to the termination of, or withdrawal from, any Title IV Plan or
(ii) Sections 412 or 4971 of the Internal Revenue Code of 1986, as
amended, including the regulations and published interpretations
thereunder (the ‘‘ Code ’’); and
each ‘‘pension plan’’ for which the Company
would have any liability that is intended to be qualified under
Section 401(a) of the Code is so qualified in all material respects
and nothing has occurred, whether by action or by failure to act,
which would cause the loss of such qualification.
(jj) The
Company has filed all tax returns required to be filed through the
date hereof (other than any tax returns not so required to be filed
through the date hereof as a result of the existence of waiver or
extension granted in connection with any such tax returns) and has
paid all taxes shown to be due thereon, and no tax deficiency has
been determined adversely to the Company or any of its subsidiaries
which has had (nor does the Company have any knowledge of any tax
deficiency which, if determined adversely to the Company or any of
its subsidiaries, could reasonably be expected to have) a Material
Adverse Effect.
(kk) Since
the date as of which information is given in the most recent
Preliminary Prospectus through the date hereof, and except as may
otherwise be disclosed in the most recent Preliminary Prospectus,
the Company has not (i) issued or granted any securities (other
than options issued
7
pursuant to the 2004 Plan as
described in the Prospectus), (ii) incurred any liability or
obligation, direct or contingent, other than non-material
liabilities and obligations which were incurred in the ordinary
course of business, (iii) entered into any transaction not in the
ordinary course of business or (iv) declared or paid any dividend
on its capital stock.
(ll) The
Company (i) makes and keeps accurate books and records and (ii)
maintains internal accounting controls which provide reasonable
assurance that (A) transactions are executed in accordance with
management’s authorization, (B) transactions are recorded as
necessary to permit preparation of its financial statements and to
maintain accountability for its assets, (C) access to its assets is
permitted only in accordance with management’s authorization
and (D) the reported accountability for its assets is compared with
existing assets at reasonable intervals. No action, suit or
proceeding by or before any court or governmental agency, authority
or body or any arbitrator involving the Company or any of its
subsidiaries with respect to the applicable financial recordkeeping
and reporting requirements of the Currency and Foreign Transactions
Reporting Act of 1970, as amended, the money laundering statutes of
all jurisdictions, the rules and regulations thereunder and any
related or similar rules, regulations or guidelines, issued,
administered or enforced by any governmental agency is pending or,
to the knowledge of the Company, threatened, except, in each case,
as would not reasonably be expected to have a Material Adverse
Effect.
(mm) Neither
the Company nor any of its subsidiaries (i) is in violation of its
charter or by-laws or other governing documents, (ii) is in
default, and no event has occurred which, with notice or lapse of
time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition
contained in any material indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which it is a party
or by which it is bound or to which any of its properties or assets
is subject or (iii) is in violation of any law, ordinance,
governmental rule, regulation or court decree to which it or its
property or assets may be subject or has failed to obtain any
license, permit, certificate, franchise variance, special exception
or other governmental authorization or permit or municipal
government approval necessary to the ownership of its property or
to the conduct of its business, except, in the case of clauses (ii)
and (iii), for such defaults, violations or failures to obtain as
would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect.
(nn) Neither
the Company nor any of its subsidiaries, nor any director, officer,
employee or other person acting on behalf of the Company or any of
its subsidiaries nor, to the best of the Company’s knowledge,
any agent or other person associated with the Company, has used any
corporate funds for any unlawful contribution, gift, entertainment
or other unlawful expense relating to political activity; made any
direct or indirect unlawful payment to any foreign or domestic
government official or employee from corporate funds; violated or
is in violation of any provision of the Foreign Corrupt Practices
Act of 1977; or made any bribe, rebate, payoff, influence payment,
kickback or other unlawful payment.
(oo) Except
as disclosed in the most recent Preliminary Prospectus, there has
been no storage, disposal, generation, manufacture, refinement,
transportation, handling or treatment of toxic wastes, medical
wastes, hazardous wastes or hazardous substances by the Company or
any of its subsidiaries (or, to the knowledge of the Company, any
of their predecessors in interest) at, upon or from any of the
property now or previously owned or leased by the Company or its
subsidiaries in violation of any applicable environmental law,
ordinance, rule, regulation, order, judgment, decree or permit or
which would require remedial action under any applicable
environmental law, ordinance, rule, regulation, order, judgment,
decree or permit, except for any violation or remedial action which
would not have, or would not be reasonably likely to have,
individually or in the aggregate with respect to all such
violations and remedial actions, a Material Adverse Effect; there
has been no material spill, discharge, leak, emission, injection,
escape, dumping or release of any kind onto such property or into
the environment surrounding such property of any toxic wastes,
medical wastes, solid wastes, hazardous wastes or hazardous
substances due to or caused by the Company or any of its
subsidiaries or with respect to which the Company or any of its
subsidiaries have knowledge, except for any such spill, discharge,
leak, emission, injection, escape, dumping or release which is
authorized pursuant to an applicable law or permit or which would
not have or would not be reasonably likely to
have,
8
individually or in the aggregate
with respect to all such spills, discharges, leaks, emissions,
injections, escapes, dumpings and releases, a Material Adverse
Effect. The terms ‘‘ hazardous wastes
’’, ‘‘ toxic wastes ’’,
‘‘ hazardous substances ’’ and
‘‘ medical wastes ’’ shall have the
meanings specified in any applicable local, state, federal and
foreign laws or regulations with respect to environmental
protection.
(pp) Neither
the Company nor any of its subsidiaries is, or, after giving effect
to the offering and sale of the Stock and the application of the
net proceeds therefrom as described in the Prospectus will be, an
‘‘investment company’’ as defined in the
Investment Company Act of 1940, as amended together with the rules
and regulations promulgated thereunder (the ‘‘
Investment Company Act ’’).
(qq) Except
for this Agreement, there are no contracts, agreements or
understandings between the Company and any person that would give
rise to a valid claim against the Company or the Underwriter for a
brokerage commission, finder’s fee or other like payment in
connection with the offering and sale of the Stock contemplated by
this Agreement.
(rr) Except
as disclosed in the most recent Preliminary Prospectus, neither the
Company nor any subsidiary has abandoned (or intends to abandon)
any of its operating projects.
(ss) The
material mechanical, electrical and other operating systems on and
in the Company’s operating projects are in all material
respects in good working order and repair relative to their time in
service (ordinary wear and tear excepted) and are adequate in all
material respects for the operation of the projects by the Company
and its subsidiaries as described in the most recent Preliminary
Prospectus.
(tt) Except
as disclosed in the most recent Preliminary Prospectus, there are
no pending actions, suits or proceedings against or affecting the
Company or any of its subsidiaries in connection with the
condemnation or appropriation of any of its operating
projects.
(uu) The
Company has established and maintains disclosure controls and
procedures (as such term is defined in Rule 13a-15 under the
Exchange Act), which (i) are designed to ensure that material
information relating to the Company, including its consolidated
subsidiaries, is made known to the Company’s principal
executive officer and its principal financial officer by others
within those entities, particularly during the preparation of the
Registration Statement, and in the future, during the periods in
which the periodic reports required under the Exchange Act are
being prepared and (ii) as of the date hereof are effective in all
material respects to perform the functions for which they were
established.
(vv) The
Company is not aware of (i) any significant deficiency or material
weakness in the design or operation of internal control over
financial reporting which are reasonably likely to adversely affect
the Company’s ability to record, process, summarize and
report financial information except as disclosed in the most recent
Preliminary Prospectus; or (ii) any fraud, whether or not material,
that involves management or other employees who have a significant
role in the Company’s internal control over financial
reporting.
(ww) The
Company has not distributed and, prior to the later to occur of the
Delivery Date and completion of the distribution of the Stock, will
not distribute any offering material in connection with the
offering and sale of the Stock other than any Preliminary
Prospectus, the Prospectus, any Issuer Free Writing Prospectus to
which the Underwriter has consented in accordance with Section 1(i)
or 5(a)(vi).
(xx) The
Stock has been approved for listing, subject to official notice of
issuance, on the New York Stock Exchange, Inc.
(yy) No
consent, approval, authorization or order of, or filing or
registration with, any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of
their properties or assets is required for the execution, delivery
and performance of this Agreement by the Company, the consummation
of the transactions contemplated hereby, the application of the
proceeds from the sale of the Stock as described under
‘‘Use of Proceeds’’ in each of the most
recent Preliminary Prospectus and the Prospectus, except for the
registration of the Stock under the
9
Securities Act and such consents,
approvals, authorizations, registrations or qualifications as may
be required under the Exchange Act and applicable state or foreign
securities laws in connection with the purchase and sale of the
Stock by the Underwriter.
(zz) There
is and has been no failure on the part of the Company and any of
the Company’s directors or officers, in their capacities as
such, to comply with the provisions of the Sarbanes-Oxley Act of
2002 and the rules and regulations promulgated in connection
therewith.
(aaa) No
subsidiary of the Company is currently prohibited, directly or
indirectly, from paying any dividends to the Company, from making
any other distribution on such subsidiary’s capital stock,
from repaying to the Company any loans or advances to such
subsidiary from the Company or from transferring any of such
subsidiary’s property or assets to the Company or any other
subsidiary of the Company, except as described in or contemplated
by the most recent Preliminary Prospectus for such restrictions
contained in financing arrangements or documents and any documents
incorporated by reference therein.
(bbb) Neither
the Company nor any of its subsidiaries nor, to the knowledge of
the Company, any director, officer, agent, employee or affiliate of
the Company or any of its subsidiaries is currently subject to any
U.S. sanctions administered by the Office of Foreign Assets Control
of the U.S. Treasury Department (‘‘ OFAC
’’); and the Company will not directly or indirectly
use the proceeds of the offering, or lend, contribute or otherwise
make available such proceeds to any subsidiary, joint venture
partner or other person or entity, for the purpose of financing the
activities of any person currently subject to any U.S. sanctions
administered by OFAC.
(ccc) The
Company has not taken and will not take, directly or indirectly,
any action designed to or that has constituted or that could
reasonably be expected to cause or result in the stabilization or
manipulation of the price of any security of the Company to
facilitate the sale or resale of the shares of the
Stock.
Each certificate signed by any
officer of the Company and delivered to the Underwriter or counsel
to the Underwriter in connection with the transaction contemplated
hereunder shall be deemed to be a representation and warranty by
the Company to the Underwriter as to the matters covered
thereby.
SECTION 2.
Purchase of the Stock by the Underwriter
. On the basis of the representations and
warranties contained in, and subject to the terms and conditions
of, this Agreement, the Company agrees to sell 2,500,000 shares of
the Stock to the Underwriter and the Underwriter agrees to purchase
the number of shares of the Stock set forth opposite the
Underwriter’s name in Schedule 1 hereto. The price of
the Stock shall be $37.07 per share.
The Company shall not be obligated
to deliver any of the Stock to be delivered on the Delivery Date
(as hereafter defined), except upon payment for all the Stock to be
purchased on the Delivery Date as provided
herein.
SECTION 3.
Offering of Stock by the Underwriter
. Upon the release of the Stock, the
Underwriter proposes to offer the Stock for sale upon the terms and
conditions set forth in the Prospectus.
SECTION 4.
Delivery of and Payment for the Stock
. Delivery of and payment for the Stock
shall be made at the offices of White & Case LLP, 1155 Avenue
of the Americas, New York, New York, 10036, at 10:00 A.M., New York
City time, on the third full business day following the date of
this Agreement or at such other date or place as shall be
determined by agreement between the Underwriter and the Company.
This date and time are sometimes referred to as the ‘‘
Delivery Date .’’ On the Delivery Date, the
Company shall deliver or cause to be delivered certificates
representing the Stock to the Underwriter for the account of the
Underwriter against payment to or upon the order of the Company of
the purchase price by wire transfer in immediately available funds.
Time shall be of the essence, and delivery at the time and place
specified pursuant to this Agreement is a further condition of the
obligation of the Underwriter hereunder. Upon delivery, the Stock
shall be registered in such names and in such denominations as the
Underwriter shall request in writing not less than two full
business days prior to the Delivery Date. For the purpose of
expediting the checking and
10
packaging of the certificates for
the Stock, the Company shall make the certificates representing the
Stock available for inspection by the Underwriter in New York, New
York, not later than 2:00 P.M., New York City time, on the business
day prior to the Delivery Date.
SECTION 5.
Further Agreements of the Company
. (a) The Company covenants and
agrees:
(i) To
prepare the Prospectus in a form approved by the Underwriter and to
file such Prospectus pursuant to Rule 424(b) under the Securities
Act not later than the Commission’s close of business on the
second business day following the execution and delivery of this
Agreement; to make no further amendment or any supplement to the
Registration Statement or the Prospectus prior to the Delivery Date
except as permitted herein; to advise the Underwriter, promptly
after it receives notice thereof, of the time when any amendment or
supplement to the Registration Statement or the Prospectus has been
filed and to furnish the Underwriter with copies thereof; to file
promptly 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
subsequent to the date of the Prospectus and for so long as the
delivery of a prospectus is required in connection with the
offering or sale of the Stock; to advise the Underwriter, promptly
after it receives notice thereof, of the issuance by the Commission
of any stop order or of any order preventing or suspending the use
of the Prospectus or any Issuer Free Writing Prospectus, of the
suspension of the qualification of the Stock for offering or sale
in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose or of any request by the Commission
for the amending or supplementing of the Registration Statement,
the Prospectus or any Issuer Free Writing Prospectus or for
additional information; and, in the event of the issuance of any
stop order or of any order preventing or suspending the use of the
Prospectus or any Issuer Free Writing Prospectus or suspending any
such qualification, to use promptly its best efforts to obtain its
withdrawal;
(ii) To
furnish promptly to each of the Underwriter and to counsel for the
Underwriter a signed copy of the Registration Statement as
originally filed with the Commission, and each amendment thereto
filed with the Commission, including all consents and exhibits
filed therewith;
(iii) To
deliver promptly to the Underwriter, without charge, such number of
the following documents as the Underwriter shall reasonably
request: (A) conformed copies of the Registration Statement as
originally filed with the Commission and each amendment thereto (in
each case excluding exhibits), (B) each Preliminary Prospectus, the
Prospectus and any amended or supplemented Prospectus, (C) each
Issuer Free Writing Prospectus and (D) any document incorporated by
reference in any Preliminary Prospectus or the Prospectus; and, if
the delivery of a prospectus is required at any time after the date
hereof in connection with the offering or sale of the Stock
relating thereto and if at such time any events shall have occurred
as a result of which the 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 Prospectus is delivered, not misleading, or, if for
any other reason it shall be necessary 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 the Underwriter
and, upon its request, to file such document and to prepare and
furnish without charge to the Underwriter and to any dealer in
securities as many copies as the Underwriter may from time to time
reasonably request of an amended or supplemented Prospectus which
will correct such statement or omission or effect such
compliance;
(iv) To file
promptly with the Commission any amendment to the Registration
Statement or the Prospectus or any supplement to the Prospectus
that may, in the judgment of the Company or the Underwriter, be
required by the Securities Act or requested by the
Commission;
(v) Prior to
filing with the Commission any amendment or supplement to the
Registration Statement or the Prospectus, any document incorporated
by reference in the Prospectus or any amendment to any document
incorporated by reference in the Prospectus, to furnish a copy
thereof to the Underwriter and counsel for the Underwriter and
obtain the consent of the Underwriter to the filing (which consent
shall not be unreasonably withheld);
11
(vi) Not to
make any offer relating to the Stock that would constitute an
Issuer Free Writing Prospectus without the prior written consent of
the Underwriter;
(vii) To
retain in accordance with the Rules and Regulations all Issuer Free
Writing Prospectuses not required to be filed pursuant to the Rules
and Regulations; and if at any time after the date hereof any
events shall have occurred as a result of which any Issuer Free
Writing Prospectus, as then amended or supplemented, would conflict
with the information in the Registration Statement, the most recent
Preliminary Prospectus or the Prospectus or 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, not misleading, or,
if for any other reason it shall be necessary to amend or
supplement any Issuer Free Writing Prospectus, to notify the
Underwriter and, upon its request, to file such document and to
prepare and furnish without charge to the Underwriter as many
copies as the Underwriter may from time to time reasonably request
of an amended or supplemented Issuer Free Writing Prospectus that
will correct such conflict, statement or omission or effect such
compliance;
(viii) As
soon as practicable and, in any event, no later than 15 months
after the Effective Date, to make generally available to the
Company’s security holders and to deliver to the Underwriter
an earnings statement of the Company and its subsidiaries (which
need not be audited) complying with Section 11(a) of the Securities
Act and the Rules and Regulations (including, at the option of the
Company, Rule 158);
(ix) For a
period of three years following the Effective Date, to furnish to
the Underwriter copies of all materials furnished by the Company to
its shareholders and all public reports and all reports and
financial statements furnished by the Company to the principal
national securities exchange upon which the Common Stock may be
listed pursuant to requirements of or agreements with such exchange
or to the Commission pursuant to the Exchange Act or any rule or
regulation of the Commission thereunder;
(x) Promptly
from time to time to take such action as the Underwriter may
reasonably request to qualify the Stock for offering and sale under
the securities laws of such jurisdictions as the Underwriter may
request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for
as long as may be necessary to complete the distribution of the
Stock; provided that in connection therewith the Company shall not
be required to qualify as a foreign corporation or to file a
general consent to service of process in any jurisdiction in which
it is not so qualified or subject itself to taxation in respect of
doing business in any jurisdiction in which it is not otherwise
subject;
(xi) For a
period commencing on the date hereof and ending on the 90th day
after the date of the Prospectus (the ‘‘ Lock-Up
Period ’’), not to, directly or indirectly, (1)
offer for sale, sell, pledge or otherwise dispose of (or enter into
any transaction or device which is designed to, or could be
expected to, result in the disposition by any person at any time in
the future of) any shares of Common Stock or securities convertible
into or exchangeable for Common Stock (other than the Stock and
securities convertible into or exchangeable for Common Stock issued
pursuant to the 2004 Plan), or sell or grant options, rights or
warrants with respect to any shares of Common Stock or securities
convertible into or exchangeable for Common Stock (other than the
grant of Common Stock or securities convertible into or
exchangeable for Common Stock pursuant to the 2004 Plan), (2) enter
into any swap or other derivatives transaction that transfers to
another, in whole or in part, any of the economic benefits or risks
of ownership of such shares of Common Stock, whether any such
transaction described in clause (1) or (2) above is to be settled
by delivery of Common Stock or other securities, in cash or
otherwise, (3) file or cause to be filed a registration statement,
including any amendm
