PURCHASE AGREEMENT
Exhibit h.6
This Purchase Agreement (the “Agreement”) is made as of January 19, 2011, by and among
Tortoise Energy Infrastructure Corporation, a Maryland corporation (the “Fund”), Tortoise
Capital Advisors, LLC, a Delaware limited liability company (the “Adviser”), and The
Retirement Income Plan for the Employees of Underwriters Laboratories Inc. (the
“Investor”). The Fund, the Adviser and the Investor are referred to herein individually as
a “Party” and collectively as the “Parties.”
In consideration of the premises and the mutual representations, warranties, covenants and
agreements set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby
agree as follows:
1. Authorization and Sale of Shares. The Fund has authorized the sale and issuance of
One Hundred Thirty Thousand Eight Hundred Fifty Six (130,856) shares (the “Shares”) of
common stock of the Fund, par value $0.001 per share (the “Common Stock”), to the Investor
(the “Offering”). Upon the terms and subject to the conditions hereinafter set forth, at
the Closing (as defined herein), the Fund will issues and sell to the Investor, and the Investor
will purchase from the Fund, the Shares at $38.21 per share, for an aggregate purchase price of
$5,000,007.76 (the “Purchase Price”). The Investor acknowledges that certificates
representing the Shares will not be issued and instead the Shares will be credited to the Investor
using customary book-entry procedures.
2. Closing. The completion of the purchase and sale of the Shares (the
“Closing”) shall occur on January 20, 2011 at 9:00 a.m. (Kansas City time) or at such later
date and time as the Parties may agree upon (such date and time of payment being herein called the
“Closing Time”), at the offices of the Fund’s counsel. At the Closing, the Fund shall
deliver to the Investor, using customary book-entry procedures, the Shares, and the Investor shall
deliver to the Fund, via wire transfer, funds in the full amount of the Purchase Price to the bank
account designated by the Fund on Exhibit A hereto.
3. SEC Documents; Public Offering. The Fund has filed with the Securities and
Exchange Commission (the “Commission”) a registration statement on Form N-2 (File Nos.
333-165006 and 811-21462) which became effective on February 22, 2010, covering the registration of
the Shares under the Securities Act of 1933, as amended (the “1933 Act”), and a
notification on Form N-8A of registration of the Fund as an investment company under the Investment
Company Act of 1940, as amended (the “1940 Act”), and the rules and regulations of the
Commission under the 1933 Act and the 1940 Act (the “Rules and Regulations”). Promptly
after execution and delivery of this Agreement, the Fund will prepare and file a post-effective
amendment in accordance with Rule 462(d) and a prospectus supplement in accordance with the
provisions of Rule 430A (“Rule 430A”) and paragraph (c) and/or (h) of Rule 497 (“Rule
497”) of the Rules and Regulations. The information included in any such prospectus supplement
that was omitted from such registration statement at the time it became effective but that is
deemed to be part of such registration statement at the time it became effective pursuant to
paragraph (b) of Rule 430A is referred to as “Rule 430A Information.” Such registration
statement, including the
amendments thereto, the exhibits and schedules thereto at the time it became effective and
including the Rule 430A Information and any statement of additional information incorporated
therein by reference, is herein called the “Registration Statement.” The prospectus in the
form furnished to the Investor for use in connection with the issuance and sale of the Shares,
including the prospectus supplement filed pursuant to Rule 497, the base prospectus dated February
22, 2010, and the statement of additional information incorporated therein by reference, is herein
called the “Prospectus.”
4. Representations and Warranties.
4.1 Representations and Warranties of the Fund and the Adviser. The Fund and the
Adviser represent and warrant to the Investor as of the date hereof and as of the Closing Time, and
agree with the Investor, as follows:
(a) Compliance With Registration Requirements. The Registration Statement has become
effective under the 1933 Act and the Rule 462(d) post-effective amendment will become effective
upon its filing with the Commission. No stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act, or order of suspension or revocation of
registration pursuant to Section 8(e) of the 1940 Act, and no proceedings for any such purpose,
have been instituted or are pending or, to the knowledge of the Fund or the Adviser, are
contemplated by the Commission, and any request on the part of the Commission for additional
information has been complied with.
At the respective times the Registration Statement and the Rule 462(d) post-effective
amendment relating to the issuance and sale of the Shares to the Investor (filed before the Closing
Time) became effective and at the Closing Time, the Registration Statement, the Rule 462(d)
post-effective amendment, the notification on Form N-8A and all amendments and supplements thereto
complied and will comply in all material respects with the requirements of the 1933 Act, the 1940
Act and the Rules and Regulations, and did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading. Neither the Prospectus nor any amendment or supplement
thereto, at the time the Prospectus or any such amendment or supplement was issued and at the
Closing Time, included or will include an untrue statement of a material fact or omitted or will
omit to state a material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(b) Financial Statements. The statement of assets and liabilities included in the
Registration Statement and the Prospectus, together with the related notes, presents fairly in
accordance with generally accepted accounting principles (“GAAP”) in all material respects
the financial position of the Fund at the date indicated and has been prepared in conformity with
GAAP. The supporting schedules, if any, present fairly in accordance with GAAP the information
required to be stated therein. The selected financial data and the summary financial information
included in the Prospectus present fairly the information shown therein and have been compiled on a
basis consistent with that of audited financial statements included in the Registration Statement.
(c) No Material Adverse Change. Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as otherwise stated therein, (A)
there has been no material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Fund, whether or not arising in the
ordinary course of business (other than as a result of changes in market conditions generally) (a
“Material Adverse Effect”), (B) there have been no transactions entered into by the Fund,
other than those in the ordinary course of business, which are material with respect to the Fund,
and (C) there has been no dividend or distribution of any kind declared, paid or made by the Fund
on any class of its capital stock.
(d) Good Standing. The Fund has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Maryland and has the corporate power
and authority to own, lease and operate its properties and to conduct its business as described in
the Prospectus and to enter into and perform its obligations under this Agreement; and the Fund is
duly qualified as a foreign corporation to transact business and is in good standing in each other
jurisdiction in which such qualification is required, whether by reason of the ownership or leasing
of property or the conduct of business, except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect.
(e) Investment Company Status. The Fund is duly registered with the Commission under
the 1940 Act as a nondiversified, closed-end management investment company, and no order of
suspension or revocation of such registration has been issued or proceedings therefor initiated or,
to the Fund’s knowledge, threatened by the Commission.
(f) Authorization of Agreement; Absence of Defaults and Conflicts. This Agreement has
been duly authorized, executed and delivered by the Fund and the Adviser, and (assuming the due
authorization, execution and delivery of the Investor) constitutes a valid and binding obligation
of the Fund and the Adviser, enforceable in accordance with its terms, except as affected by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors’ rights generally and general equitable principles (whether
considered in a proceeding in equity or at law) or an implied covenant of good faith and fair
dealing and except as rights to indemnification or contribution hereunder may be limited by federal
or state laws; and neither the execution and delivery of this Agreement nor the performance by the
Fund or the Adviser of its obligations hereunder will conflict with, or result in a breach of any
of the terms and provisions of, or constitute, with or without the giving of notice or lapse of
time or both, a default under, (i) any agreement or instrument to which the Fund or the Adviser is
a party or by which it is bound, (ii) the organizational documents of the Fund or the Adviser, or
(iii) to the Fund’s or the Adviser’s knowledge, any law, order, decree, rule or regulation
applicable to it of any jurisdiction, court, federal or state regulatory body, administrative
agency or other governmental body, stock exchange or securities association having jurisdiction
over the Fund or the Adviser or its properties or operations other than any conflict, breach or
default that would not, individually or in the aggregate, reasonably be expected to result in a
Material Adverse Effect; and no consent, approval, authorization or order of any court or
governmental authority or agency is required for the consummation by the Fund or the Adviser of the
transactions contemplated by this Agreement, except as have been obtained or will be obtained prior
to the Closing Time.
(g) Authorization and Description of Shares. The Shares to be purchased by the
Investor from the Fund hereunder have been duly authorized and, when issued and delivered by the
Fund to the Investor against payment of the Purchase Price, will be validly issued, fully paid and
non-assessable. The Shares conform to all statements relating thereto contained in the Prospectus
and such description conforms in all material respects to the rights set forth in the instruments
defining the same; and the issuance and sale of the Shares is not subject to the preemptive or
other similar rights of any securityholder of the Fund.
(h) NYSE Listing. The Shares have been duly authorized for listing, upon notice of
issuance, on the NYSE and the Fund’s registration statement on Form 8-A under the 1934 Act has
become effective.
4.2 Representations and Warranties of the Adviser. The Adviser represents and
warrants to the Investor as of the date hereof and as of the Closing Time and agrees with the
Investor, as follows:
(a) Good Standing of the Adviser. The Adviser has been duly organized and is validly
existing and in good standing as a limited liability company under the laws of the State of
Delaware with full power and authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and is duly qualified as a foreign entity to transact
business and is in good standing in each other jurisdiction in which such qualification is required
except as would not, individually or in the aggregate, result in a material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or business prospects of
such Adviser, whether or not arising in the ordinary course of business.
(b) Investment Adviser Status. The Adviser is duly registered and in good standing
with the Commission as an investment adviser under the Investment Advisers Act of 1940, as amended
(the “Advisers Act”), and is not prohibited by the Advisers Act, the 1940 Act, or the rules
and regulations under such acts, from acting under the Investment Advisory Agreement between the
Adviser and the Fund as contemplated by the Prospectus.
4.3 Representations and Warranties of the Investor. The Investor represents and
warrants to the Fund and the Adviser as of the date hereof and as of the Closing Time, and agrees
with the Fund and the Adviser as follows:
(a) Good Standing. The Investor has been duly organized and is validly existing as a
501(c)(3) corporation in good standing under the laws of the State of Delaware and has the
corporate power and authority to own, lease and operate its properties and to conduct its business
as currently being conducted and to enter into and perform its obligations under this Agreement.
(b) Authorization of Agreement; Absence of Defaults and Conflicts. This Agreement has
been duly authorized, executed and delivered by the Investor, and (assuming the due authorization,
execution and delivery of the Fund and the Adviser) constitutes a valid and binding obligation of
the Investor, enforceable in accordance with its terms, except as affected by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors’ rights generally and general equitable principles (whether considered in a
proceeding in equity or at law) or an implied covenant of good faith and fair
dealing and except as rights to indemnification or contribution hereunder may be limited by
federal or state laws; and neither the execution and delivery of this Agreement nor the performance
by the Investor of its obligations hereunder will conflict with, or result in a breach of any of
the terms and provisions of, or constitute, with or without the giving of notice or lapse of time
or both, a default under, (i) any agreement or instrument to which the Investor is a party or by
which it is bound, (ii) the organizational documents of the Investor, or (iii) to the Investor’s
knowledge, by any law, order, decree, rule or regulation applicable to it of any jurisdiction,
court, federal or state regulatory body, administrative agency or other governmental body, stock
exchange or securities association having jurisdiction over the Investor or its properties or
operations other than any conflict, breach or default that would not, individually or in the
aggregate, reasonably be expected to result in a material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business prospects of the Investor,
whether or not arising in the ordinary course of business; and no consent, approval, authorization
or order of any court or governmental authority or agency is required for the consummation by the
Investor of the transactions contemplated by this Agreement, except as have been obtained or will
be obtained prior to the Closing Time.
(c) Prospectus. The Investor has received and read the Prospectus and the information
incorporated by reference therein. The Investor understands that nothing in the Prospectus, this
Agreement or any other materials presented to the Investor in connection with the purchase and sale
of the Shares constitutes legal, tax or investment advice. The Investor has consulted such legal,
tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in
connection with its purchase of Shares. The Investor acknowledges that it will be required to bear
the cost, if any, of printing the Prospectus.
(d) Indemnification. The Investor will indemnify the Fund and the Adviser against any
claims against them for brokerage or similar fees or commissions payable to any broker, agent or
finder retained by or on behalf of the Investor or any of its affiliates or subsidiaries in
connection with the transactions contemplated by this Agreement.
(e) Ownership. The Investor does not, and will not as a result of the transactions
contemplated by this Agreement, own five percent or more of the Fund’s issued and outstanding
Common Stock.
(f) Trading Activities. The Investor’s trading and distribution activities with
respect to the Fund’s Common Stock will be in compliance with all applicable state and federal
securities laws, rule and regulations and the rules and regulations of the New York Stock Exchange.
Neither the Investor nor any of its affiliates (as that term is defined in Rule 405 promulgated
under the 0000 Xxx) has taken, nor will any of them take, directly or indirectly, any action
designed to cause or that would result in, or which constitutes or that might reasonably be
expected to constitute, the stabilization or manipulation of the price of the Fund’s Common Stock
to facilitate the purchase, sale or resale of the Shares.
5. Survival of Representations, Warranties and Agreements. Notwithstanding any
investigation made by any Party to this Agreement, all covenants, agreements, representations and
warranties made by the Fund, the Adviser and the Investor herein shall survive the execution
of this Agreement, the delivery to the Investor of the Shares being purchased and the payment
therefor.
6. Notices. All notices, requests, consents and other communications hereunder shall
be in writing, shall be mailed (A) if within domestic United States by first-class registered or
certified airmail, or nationally recognized overnight express courier, postage prepaid, or by
facsimile, or (B) if delivered from outside the United States, by International Federal Express or
facsimile, and shall be deemed given (i) if delivered by first-class registered or certified mail
domestic, three business days after so mailed, (ii) if delivered by a nationally recognized
overnight carrier, one business day after so mailed, (iii) if delivered by International Federal
Express, two business days after so mailed, or (iv) if delivered by facsimile, upon electronic
confirmation of receipt and shall be delivered as addressed as follows:
if to the Fund, to:
Tortoise Energy Infrastructure Corporation
00000 Xxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Facsimile No.: (000) 000-0000
00000 Xxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Facsimile No.: (000) 000-0000
if to the Investor, to:
Underwriters Laboratories Inc.
Attn: Xxxxxxx X. Xxxxx
000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxxxx X. Xxxxx
000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
and
BNY Mellon Asset Servicing
Attn: Xxxxxxxxx Xx
One Xxxx Xxxxxx, 00xx Xxxxx
AIM #102-1200
Xxx Xxxx, XX 00000
Attn: Xxxxxxxxx Xx
One Xxxx Xxxxxx, 00xx Xxxxx
AIM #102-1200
Xxx Xxxx, XX 00000
7. Changes. This Agreement may not be modified or amended except pursuant to an
instrument in writing signed by each Party.
8. Headings. The headings of the various sections of this Agreement have been
inserted for convenience or reference only and shall not be deemed to be part of this Agreement.
9. Severability. In case any provision contained in this Agreement should be invalid,
illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining
provisions contained herein shall not in any way be affected or impaired thereby.
10. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF KANSAS APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SAID
STATE.
11. Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall constitute an original, but all of which, when taken together, shall constitute but one
instrument, and shall become effective when one or more counterparts have been signed by each Party
and delivered to each other Party.
[Remainder of Page Intentionally Left Blank — Signature Page Follows]
In witness whereof, the Parties have caused this Agreement to be executed by their respective
representatives, hereunto duly authorized, as of the date first written above.
| Tortoise Energy Infrastructure Corporation |
||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | Senior Vice President | |||
| Tortoise Capital Advisors, LLC |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Managing Director | |||
| The Retirement Income Plan for the Employees of Underwriters Laboratories Inc. |
||||
| By: | /s/ Xxxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxxx X. Xxxxxxx | |||
| Title: | Senior Vice President and Treasurer | |||
EXHIBIT A
Wire Transfer Instructions
Wire Transfer Instructions
