Exhibit h.4
PURCHASE AGREEMENT
Tortoise Energy Capital Corporation
00000 Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxx 00000
Ladies and Gentlemen:
The undersigned entities set forth on Schedule I hereto (each an
"Investor"), hereby confirm and agree with you as follows:
1. This Purchase Agreement (the "Agreement") is made as of ______________,
by and among Tortoise Energy Capital Corporation, a Maryland corporation (the
"Fund"), Tortoise Capital Advisors, LLC, a Delaware limited liability company
(the "Adviser") and each Investor.
2. The Fund has authorized the sale and issuance of up to
________________________ (________) shares (the "Shares") of common stock of the
Fund, par value $0.001 per share (the "Common Stock"), subject to adjustment by
the Fund's Board of Directors or a committee thereof, to certain investors (the
"Offering"). The Fund has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form N-2 (File Nos. 333-__________ and
811-__________) which became effective on ___________, 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 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 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." Each prospectus used before such
registration statement became effective, including in each case any statement of
additional information incorporated therein by reference, is herein called a
"Preliminary Prospectus." Such registration statement, including a Rule 462(d)
post-effective amendment or other 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 final prospectus in the form
first furnished to the Placement Agent for use in connection with the issuance
and sale of the Shares to the Investors, including the statement of additional
information incorporated therein by reference, is herein called the
"Prospectus."
3. The Fund and each Investor agree that each Investor will purchase from
the Fund and the Fund will issue and sell to each Investor the number of Shares,
set forth opposite such Investor's name on Schedule I hereto, at a purchase
price of $________ per share, pursuant to the Terms and Conditions for Purchase
of Shares attached hereto as Annex I and incorporated herein by reference as if
fully set forth herein. Each Investor acknowledges that the offering is not
being underwritten by the placement agent (the "Placement Agent") named in the
Prospectus
and that there is no minimum offering amount. Certificates representing the
Shares purchased by each Investor will not be issued to such Investor; instead,
such Shares will be credited to each Investor using customary book-entry
procedures.
4. Each Investor represents that, except as set forth on Schedule II
hereto, (a) it has had no position, office or other material relationship within
the past three years with the Fund or persons known to it to be affiliates of
the Fund, (b) it is not a, and it has no direct or indirect affiliation or
association with any, FINRA member as of the date hereof and (c) after giving
effect to the Offering, neither the undersigned Investor nor any group of
Investors (as identified in a public filing made with the Commission) of which
the undersigned Investor is a part, in connection with the offering of the
Shares will acquire, or obtain the right to acquire, 20% or more of the Common
Stock (or securities convertible or exercisable for Common Stock) or the voting
power of the Fund.
5. Each Investor hereby confirms receipt of the Fund's prospectus
supplement, dated __________________ and the Fund's base prospectus, dated
________________, each distributed by email to each Investor with this
Agreement. Each Investor confirms that it had full access to the Prospectus and
the information incorporated by reference therein and was fully able to
download, print, read and review such documents. Each Investor acknowledges that
it will be required to bear the cost, if any, of printing the Prospectus.
-2-
Please confirm that the foregoing correctly sets forth the agreement
between us by signing in the space provided below for that purpose.
AGREED AND ACCEPTED:
[PURCHASER]
By: _____________________________________
Name:
Aggregate number of Shares ______________
Price per Share $_____________
Aggregate purchase price $_____________
TORTOISE ENERGY CAPITAL CORPORATION
a Maryland corporation
By:______________________________
Name:____________________________
Title:___________________________
TORTOISE CAPITAL ADVISORS, LLC
a Delaware limited liability company
By:______________________________
Name:____________________________
Title:___________________________
-3-
SCHEDULE I
SCHEDULE OF INVESTORS
Name in which
book-entry Investor Address, Aggregate
should be made Telephone and Contact Number of Aggregate
Investor (if different): Person Shares Purchase Price Tax ID Number Name of Broker Broker DTC No.
------------------------------------------------------------------------------------------------------------------------------------
Sch. I-1
SCHEDULE II
None.
Sch. II-1
ANNEX I
TERMS AND CONDITIONS FOR PURCHASE OF SHARES
1. Authorization and Sale of Shares. The Fund has authorized the sale of up
to ______________________ (__________) Shares. The Fund reserves the right to
increase or decrease this number.
2. Agreement to Sell and Purchase the Shares; Subscription Date.
2.1 Upon the terms and subject to the conditions hereinafter set
forth, at the Closing (as defined in Section 3), the Fund will sell to each
Investor, and each Investor will purchase from the Fund, the number of
Shares set forth on Schedule I of this Agreement at the purchase price set
forth therein.
2.2 The Fund may enter into agreements similar to this Agreement with
certain other investors (the "Other Investors") and expects to complete
sales of Shares to them. (Each Investor and the Other Investors are
hereinafter collectively referred to as the "Investors," and this Agreement
and the purchase agreements executed by the Other Investors are hereinafter
collectively referred to as the "Agreements"). The Fund may accept or
reject any one or more Agreements in its sole discretion.
3. Delivery of the Shares at Closing. The completion of the purchase and
sale of the Shares (the "Closing") shall occur on ______________ at 10:00 a.m.
(Eastern Time) or at such later date and time as the parties hereto may agree
upon (such date and time of payment being herein called the "Closing Time"), at
the offices of the Placement Agent's counsel. At the Closing, the Fund shall
deliver to each Investor, using customary book-entry procedures, the number of
Shares set forth on Schedule I to this Agreement, and each Investor shall
deliver to the Fund or as otherwise directed by the Placement Agent a certified
or official bank check or wire transfer of funds in the full amount of the
aggregate purchase price for the Shares being purchased hereunder as set forth
opposite such Investor's name on Schedule I hereto to a bank account designated
by the Fund.
The Fund's obligation to issue and sell the Shares to each Investor shall
be subject to the following conditions, any one or more of which may be waived
by the Fund: (a) receipt by the Fund of a certified or official bank check or
wire transfer of funds in the full amount of the purchase price for the Shares
being purchased; (b) completion of the purchases and sales of Shares under the
Agreements that may be executed with the Other Investors; and (c) the accuracy
of the representations and warranties made by each Investor and the fulfillment
of those undertakings of each Investor to be fulfilled prior to the Closing.
Each Investor's obligation to purchase the Shares shall be subject to the
condition that the Placement Agent shall not have (a) terminated the Placement
Agency Agreement dated as of _______________, between the Fund, the Adviser and
the Placement Agent (the "Placement Agency Agreement") pursuant to the terms
thereof or (b) determined that the conditions to closing in the Placement Agency
Agreement have not been satisfied.
Annex I-1
4. Representations and Warranties.
4.1 Representations and Warranties by the Fund and the Adviser. The
Fund and the Adviser represent and warrant to each Investor as of the date
hereof and as of the Closing Time referred to in Section 3 hereof, and
agree with the Investor, as follows:
(a) Compliance With Registration Requirements. Each of the
Registration Statement and the Rule 462(d) post-effective amendment
has become effective under the 1933 Act and no stop order suspending
the effectiveness of the Registration Statement or the Rule 462(d)
post-effective amendment 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 Investors (filed before the Closing Time) became
effective and at the Closing Time, as hereinafter defined, 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. The
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with written
information furnished to the Fund by or on behalf of the Placement
Agent for use in the Registration Statement or Prospectus.
Annex I-2
As of the date hereof, the Statutory Prospectus (as defined
below) and the information included on Schedule A hereto, all
considered together (collectively, the "General Disclosure Package"),
did not include any untrue statement of a material fact or omitted 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.
As used in this subsection and elsewhere in this Agreement,
"Statutory Prospectus" as of any time means the prospectus relating to
the Shares that is included in the Registration Statement immediately
prior to that time, including any document incorporated by reference
therein.
Each preliminary prospectus and the prospectus filed as part of
the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 497 under the 1933 Act,
complied when so filed in all material respects with the Rules and
Regulations and the Prospectus delivered to the Placement Agent for
use in connection with the issuance and sale of Shares to the
Investors was identical to the electronically transmitted copies
thereof filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval System ("XXXXX"), except to the
extent permitted by Regulation S-T.
At the time of filing the Registration Statement and any 462(d)
post-effective amendments relating to the issuance and sale of the
Shares to the Investors and at the date hereof, the Fund was not and
is not an "ineligible issuer," as defined in Rule 405 of the Rules and
Regulations.
(b) Incorporation of Documents by Reference. The documents
incorporated in the Registration Statement, the Prospectus and the
Statutory Prospectus, at the time they were or hereafter are filed
with the Commission, complied and will comply in all material respects
with the requirements of the 1934 Act and the rules and regulations of
the Commission under the 1934 Act, the 1940 Act and the Rules and
Regulations and, when read together with the other information in the
Prospectus, (a) at the time the Registration Statement became
effective, (b) at the time the Prospectus was issued and (c) at the
Closing Time, 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.
(c) Financial Statements. The statement of assets and liabilities
included in the Registration Statement, the General Disclosure Package
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
Annex I-3
on a basis consistent with that of audited financial statements
included in the Registration Statement.
(d) No Material Adverse Change. Since the respective dates as of
which information is given in the Registration Statement, the General
Disclosure Package 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.
(e) Good Standing of the Fund. 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.
(f) 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.
(g) Authorization and Description of Shares. The Shares to be
purchased by the Investors from the Fund have been duly authorized for
issuance and sale to the Investors pursuant to this Agreement and,
when issued and delivered by the Fund pursuant to one or more Purchase
Agreements against payment of the consideration set forth therein,
will be validly issued, fully paid and non-assessable. The Shares
conform to all statements relating thereto contained in the General
Disclosure Package and 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.
Annex I-4
4.2 Representations and Warranties by the Adviser. The Adviser
represents and warrants to each Investor as of the date hereof and as of
the Closing Time referred to in Section 3 hereof 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 General Disclosure Package
and 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 (an "Adviser Material Adverse
Effect").
(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 for the Fund as contemplated by the Prospectus.
(c) Description of Adviser. The description of the Adviser in the
Registration Statement, the General Disclosure Package and the
Prospectus (including any amendment or supplement thereto) complied
and comply in all material respects with the provisions of the 1933
Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the
rules and regulations of the Commission promulgated under the Advisers
Act, and is true and correct and does not contain any untrue statement
of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein,
in light of the circumstances under which they were made, not
misleading.
(d) Authorization of Offering Agreements; Absence of Defaults and
Conflicts. This Agreement and the Investment Advisory Agreement have
each been duly authorized, executed and delivered by the Adviser, and
(assuming the due authorization, execution and delivery of each other
party thereto) each such Agreement constitutes a valid and binding
obligation of 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 thereunder may be limited by federal
or state laws; and neither the execution and delivery of this
Agreement, any Purchase Agreement or the Investment Advisory Agreement
nor the performance by the Adviser of its obligations hereunder or
thereunder will conflict with, or result in a breach of any of the
terms and
Annex I-5
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 Adviser is a party or by which it is bound,
(ii) the limited liability company operating agreement and other
organizational documents of the Adviser, or (iii) to the Adviser'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 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 an Adviser 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 Adviser of
the transactions contemplated by this Agreement, any Purchase
Agreement or the Investment Advisory Agreement, except as have been
obtained or will be obtained prior to the Closing Time or may be
required under the 1933 Act, the 1940 Act, the 1934 Act or state
securities laws.
5. Representations, Warranties and Covenants of each Investor.
5.1 Each Investor represents and warrants that it has received and
read the Fund's Prospectus.
5.2 Each Investor, if outside the United States, will comply with all
applicable laws and regulations in each foreign jurisdiction in which it
purchases, offers, sells or delivers Shares or has in its possession or
distributes any offering material, in all cases at its own expense.
5.3 Each Investor further represents and warrants to, and covenants
with, the Fund that (i) such Investor has full right, power, authority and
capacity to enter into this Agreement and to consummate the transactions
contemplated hereby and has taken all necessary action to authorize the
execution, delivery and performance of this Agreement, and (ii) this
Agreement constitutes a valid and binding obligation of such 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, general
equitable principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing and except as
rights to indemnification or contribution thereunder may be limited by
federal or state laws.
5.4 Each Investor understands that nothing in the Prospectus, this
Agreement or any other materials presented to such Investor in connection
with the purchase and sale of the Shares constitutes legal, tax or
investment advice. Such 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.
5.5 From and after obtaining the knowledge of the sale of the Shares
contemplated hereby, such Investor has not taken, and prior to the public
announcement
Annex I-6
of the transaction such Investor shall not take, any action that has caused
or will cause such Investor to have, directly or indirectly, sold or agreed
to sell any shares of Common Stock, effected any short sale, whether or not
against the box, established any "put equivalent position" (as defined in
Rule 16a-1(h) under the 0000 Xxx) with respect to the Common Stock, granted
any other right (including, without limitation, any put or call option)
with respect to the Common Stock or with respect to any security that
includes, relates to or derives any significant part of its value from the
Common Stock, whether or not, directly or indirectly, in order to hedge its
position in the Shares.
6. 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 and each Investor
herein shall survive the execution of this Agreement, the delivery to such
Investor of the Shares being purchased and the payment therefor.
7. 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, (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 Capital Corporation
00000 Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Facsimile No.: (000) 000-0000
if to an Investor, at its address on Schedule I hereto, or at such other
address or addresses as may have been furnished to the Fund in writing.
8. Changes. This Agreement may not be modified or amended except pursuant
to an instrument in writing signed by the Fund and each Investor.
9. 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.
10. 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.
Annex I-7
11. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED IN SAID STATE.
12. 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 hereto and
delivered to the other parties.
[Remainder of Page Intentionally Left Blank]
Annex I-8
SCHEDULE A
Price Per Share = $__________
Annex I-9
INSTRUCTION SHEET FOR INVESTOR - PRICING
(to be read in conjunction with the entire Purchase Agreement)
1. Completing Purchase Agreement
Print all the information regarding the Investor requested on:
(i) Schedule I to the Purchase Agreement to facilitate the Closing and the
electronic delivery of the Shares; and
(ii) the signature page to the Purchase Agreement
The Purchase Agreement must be executed by an individual authorized to bind the
Investor.
2. Delivering Purchase Agreement
(i) FAX COPIES of (1) Schedule I, see (1)(i) above AND (2) the signature
page, see (1)(ii) above.
By 8:00 p.m. New York Time on _______________, return via facsimile signed
copies of the Purchase Agreement to each of the following persons:
(ii) MAIL ORIGINAL
Please deliver the originally signed documents to Xxxxxxx Xxxxx LLP at the
address above via overnight delivery.
3. A copy of the Purchase Agreement signed by the Fund will be delivered to
the Investor at a later date.
INSTRUCTION SHEET FOR INVESTOR - CLOSING
(to be read in conjunction with the entire Purchase Agreement)
1. Delivery of Funds
By NO LATER THAN NOON New York Time on _______________, wire the purchase price
for the Shares to the trust account of The Fund, using the wire instructions
below.
2. Wire Instructions
Please CLEARLY INDICATE ON THE WIRE:
(i) the name of the originator (i.e., the Investor); and
(ii) the beneficiary, Tortoise Energy Capital Corporation.
Please also coordinate with your financial institution to ensure that
transaction fees are not inadvertently deducted from the wired funds prior to
their receipt by _____________.
