FIRST AMENDED AND RESTATED DISTRIBUTION AGREEMENT
Exhibit
1
FIRST
AMENDED AND RESTATED
February
17, 2009
KCCI
Inc.
00 Xxxxxx
Xxxx
Xxxxx
0000
Xxx Xxxx,
Xxx Xxxx 00000
Attention: Xxxx
Xxxxxx
Ladies
and Gentlemen:
Reference
is hereby made to that certain Distribution Agreement, dated February 19, 2008,
between the parties hereto and thereto (the “Prior Distribution
Agreement”). Such parties desire that the Prior Distribution
Agreement be amended and restated in its entirety, all on the terms and
conditions contained herein. Accordingly, in consideration of the
premises and the agreements, provisions and covenants contained herein, the
Prior Distribution Agreement is hereby amended and restated in its entirety to
be and to read as follows:
ALLETE,
Inc., a Minnesota corporation (the “Company”), confirms its
agreement with KCCI Inc., as agent (“you” or “KCCI”), with respect to the
issuance and sale from time to time by the Company, in the manner and subject to
the terms and conditions described below, of up to an aggregate of 6,556,200
shares (the “Maximum Number of
Shares”) of common stock, without par value (the “Common Stock”), including the
preferred share purchase rights attached thereto, if any (the “Rights”), of the Company (the
“Shares”). The
Company and KCCI agree that as of the date of this First Amended and Restated
Distribution Agreement (the “Agreement”), the Company has
issued and sold 1,556,200 Shares pursuant to the Prior Distribution Agreement,
the Basic Prospectus (as defined below) and a prospectus supplement dated
February 19, 2008 (the “Prior
Prospectus”), and that 5,000,000 Shares remain available for issuance and
sale from time to time by the Company (the “Remaining Shares”) pursuant to
this Agreement and the Prospectus (as defined below).
The
Company has filed with the Securities and Exchange Commission (the “Commission”) a registration
statement on Form S-3 (No. 333-147965) (the “registration statement”) for
the registration of an unspecified amount of securities, including Common Stock
and Rights, under the Securities Act of 1933, as amended, and the rules and
regulations of the Commission thereunder (collectively, the “Act”). Except where
the context otherwise requires, “Registration Statement,” as
used herein, means the registration statement, as amended at the time of such
registration statement’s effectiveness for purposes of Section 11 of the Act, as
such section applies to KCCI, including (i) all documents incorporated or deemed
to be incorporated by reference therein and (ii) any information contained or
incorporated by reference in a prospectus filed with the Commission pursuant to
Rule 424(b) under the Act, to the extent such information is deemed, pursuant to
Rule 430B under the Act, to be part of the registration statement at the
effective time. Except where the context otherwise requires, “Basic Prospectus,” as used
herein, means the prospectus filed as part of the Registration Statement,
together with any amendments or supplements thereto as of the date of this
Agreement. Except where the context otherwise requires, “Prospectus Supplement,” as
used herein, means the prospectus supplement, dated February 17, 2009, relating
to the Remaining Shares, filed by the Company with the Commission pursuant to
Rule 424(b) under the Act on or before the second business day after the date
hereof (or such earlier time as may be required under the Act), in the form
furnished by the Company to KCCI in connection with the offering of the
Remaining Shares. Except where the context otherwise requires, “Prospectus,” as used herein,
means the Prospectus Supplement together with the Basic Prospectus attached to
or used with the Prospectus Supplement. “Permitted Free Writing
Prospectuses,” as used herein, means any other documents that the parties
hereto shall hereafter expressly agree in writing to distribute in connection
with the offering of the Remaining Shares. Any reference herein to
the registration statement, the Registration Statement, any Basic Prospectus,
the Prospectus Supplement, the Prospectus or any Permitted Free Writing
Prospectus shall be deemed to refer to and include the documents, if any,
incorporated by reference, or deemed to be incorporated by reference, therein
(the “Incorporated
Documents”). Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to
the Registration Statement, any Basic Prospectus, the Prospectus Supplement, the
Prospectus or any Permitted Free Writing Prospectus shall be deemed to refer to
and include any document filed with the Commission under the Securities Exchange
Act of 1934, as amended, and the rules and regulations thereunder (collectively,
the “Exchange Act”) on
or after the initial effective date of the Registration Statement, or the date
of such Basic Prospectus, the Prospectus Supplement, the Prospectus or such
Permitted Free Writing Prospectus, as the case may be, and deemed to be
incorporated therein by reference.
The
Company and KCCI agree as follows:
1. Issuance and
Sale.
|
(a)
|
Upon
the basis of the representations and warranties and subject to the terms
and conditions set forth herein, on any Exchange Business Day (as defined
below) selected by the Company, the Company and KCCI shall enter into an
agreement in accordance with Section 2 hereof regarding the number of
Remaining Shares to be placed by KCCI and the manner in which and other
terms upon which such placement is to occur (each such transaction being
referred to as a “Transaction”). As
used in this Agreement, (i) the “Term” shall be the
period commencing on the date hereof and ending on the earliest of (y) the
date on which the Maximum Number of Shares have been issued and sold
pursuant to this Agreement and the Prior Distribution Agreement, or (z)
the termination of this Agreement pursuant to Section 8 or 9 (the “Termination Date”), (ii)
an “Exchange Business
Day” means any day during the Term that is a trading day for the
Exchange other than a day on which trading on the Exchange is scheduled to
close prior to its regular weekday closing time, and (iii) “Exchange” means The New
York Stock Exchange, Inc.
|
|
(b)
|
Subject
to the terms and conditions set forth below, the Company appoints KCCI as
agent in connection with the offer and sale of Remaining Shares in any
Transaction entered into hereunder. KCCI will use its
commercially reasonable efforts to sell such Shares in accordance with the
terms and conditions hereof and of the applicable Transaction Notice (as
defined in Section 2(a) below). Neither the Company nor KCCI
shall have any obligation to enter into a Transaction. The
Company shall be obligated to issue and sell through KCCI, and KCCI shall
be obligated to use its commercially reasonable efforts, as provided
herein and in the applicable Transaction Notice, to place Remaining Shares
issued by the Company only if and when a Transaction Notice related to
such Transaction has been delivered by the Company and accepted by KCCI as
provided in Section 2 below.
|
|
(c)
|
The
Company and KCCI agree that the Remaining Shares to be sold in a
Transaction shall be sold in a manner constituting an “at-the-market
offering” as defined in Rule 415 promulgated under the Act. In
such case, KCCI will confirm in writing to the Company the number of
Remaining Shares sold on any Exchange Business Day and the related actual
sales execution price(s) of the Remaining Shares sold (the “Gross Sales Price”) and
Net Sales Price (as such term is defined in Section 2(b) below) no later
than the opening of trading on the immediately following Exchange Business
Day.
|
|
(d)
|
KCCI
hereby covenants and agrees not to make any sales of the Remaining Shares
on behalf of the Company, pursuant to this Agreement, other than sales
deemed to be an “at-the-market offering” as defined in Rule 415 under the
Act, which may include (i) sales by means of ordinary brokers’
transactions between members of the Exchange that qualify for delivery of
a Prospectus to the Exchange in accordance with Rule 153 under the Act,
sales on any other exchange on which the Common Stock is then listed or
admitted to trading, and sales made to or through a market maker or
through an electronic communications network (such transactions are
hereinafter referred to as “At-the-Market
Offerings”) and (ii) such other sales of the Remaining Shares
on behalf of the Company in its capacity as agent of the Company as shall
be agreed by the Company and KCCI.
|
|
(e)
|
KCCI
hereby covenants and agrees, unless it has or shall have obtained, as the
case may be, the prior written consent of the Company, not to make any
offer relating to the Remaining Shares that would constitute any “issuer free writing
prospectus” (as defined in Rule 433) relating to the Remaining
Shares or that would otherwise constitute a “free writing prospectus”
(as defined in Rule 405) required to be filed by the Company with the
Commission or retained by the Company under Rule
433.
|
2. Transaction
Notices.
|
(a)
|
The
Company may, from time to time during the Term, propose to KCCI that they
enter into a Transaction to be executed on a specified Exchange Business
Day. If KCCI agrees to the terms of such proposed Transaction
or if the Company and KCCI mutually agree to modified terms for such
proposed Transaction, then the Company shall promptly send to KCCI a
notice, substantially in the form of Exhibit A
hereto (each a “Transaction Notice”),
confirming the agreed terms of such proposed Transaction. The time at
which the Company issues a Transaction Notice shall be the “Notice Time” for that
Transaction. If KCCI wishes such proposed
Transaction to become a binding agreement between it and the Company, KCCI
shall promptly indicate its acceptance thereof by countersigning and
returning such Transaction Notice to the Company or sending a written
notice to the Company (by any means permissible under Section 11 hereof)
indicating its acceptance. The terms reflected in a Transaction
Notice shall become binding on KCCI and the Company only if accepted by
KCCI no later than the times specified in Section 2(b)
below. Each Transaction Notice shall specify, among other
things:
|
(i) the
Exchange Business Day on which the Remaining Shares subject to such Transaction
are to be sold (the “Purchase
Date”);
(ii) the
number of Remaining Shares that the Company agrees to sell (the “Specified Number of Shares”)
on such Purchase Date, which shall not exceed the greater of (i) twenty
percent (20%) of the trading volume in the Common Stock on the Exchange on the
Purchase Date, or (ii) twenty percent (20%) of the average daily trading
volume in the Common Stock on the Exchange for the ninety (90) Exchange Business
Days preceding the Purchase Date; and
(iii) the
lowest price (if any) at which the Company shall be obligated to sell Remaining
Shares in such Transaction (a “Floor Price”).
A
Transaction Notice shall not set forth a Specified Number of Shares that, when
added to the aggregate number of Shares previously purchased and to be purchased
pursuant to pending Transaction Notices (if any) hereunder and under the Prior
Distribution Agreement, results in a total that exceeds the Maximum Number of
Shares. The Company shall have responsibility for maintaining records
with respect to the aggregate number of Shares sold, or for otherwise monitoring
the availability of Remaining Shares for sale under the Registration
Statement. A Transaction Notice conforming to the foregoing
requirements, once accepted by KCCI, shall be irrevocable, and the Company shall
be obligated to sell the Specified Number of Shares and KCCI shall be obligated,
subject to the terms of, and satisfaction of, the conditions set forth in this
Agreement and such Transaction Notice, including, but not limited to, Section
1(e) above and Section 2(e) below, to use its commercially reasonable efforts to
obtain performance from each Purchaser providing offers for the Remaining
Shares. Notwithstanding the foregoing, if the terms of any
Transaction contemplate that Remaining Shares shall be sold on more than one
Purchase Date, then the Company and KCCI shall mutually agree to such additional
terms and conditions as they deem necessary in respect of such multiple Purchase
Dates, and such additional terms and conditions shall be set forth in the
relevant Transaction Notice and be binding to the same extent as any other terms
contained therein.
|
(b)
|
The
Purchase Date in respect of the Remaining Shares deliverable pursuant to
any Transaction Notice shall occur on the Exchange Business Day next
following the date on which such Transaction Notice is accepted if such
acceptance occurs by 4:30 P.M. (New York time) on such acceptance date;
provided that if a Transaction Notice is accepted prior to 8:30 A.M. (New
York time) on an Exchange Business Day (or by such later time as the
Company may agree in its sole discretion), the Purchase Date in respect of
such Remaining Shares shall be on such date of acceptance. For
Transactions, KCCI’s commission shall be $0.03 per Share sold and the
“Net Sales Price”
shall be the Gross Sale Price less KCCI’s
commission.
|
|
(c)
|
Payment
of the Net Sales Price for Remaining Shares sold by the Company on any
Purchase Date pursuant to a Transaction Notice shall be made to the
Company by federal funds wire transfer to an account designated by the
Company in writing, against delivery of such Shares to the accounts
specified in writing by KCCI. Such payment and delivery shall
be made at or about 10:00 A.M., local time in New York, New York, on the
third Exchange Business Day (or such other day as may, from time to time,
become standard industry practice for settlement of such a securities
issuance) following each Purchase Date (the “Closing
Date”). If the Company fails for any reason to make
timely delivery of such Shares, the Company shall indemnify KCCI and its
successors and assigns and hold them harmless from and against any loss,
damage, expense, liability or claim that KCCI may incur as a result of
such failure.
|
|
(d)
|
If,
as provided in the related Transaction Notice, a Floor Price has been
agreed to by the parties with respect to a Transaction, and the Gross
Sales Price for such Transaction would not be at least equal to such Floor
Price, then the Company shall not be obligated to issue and sell through
KCCI, and KCCI shall not be obligated to place, the Specified Number of
Shares for such Transaction.
|
|
(e)
|
If
either party is aware that the Company is selling shares of Common Stock
(other than the Remaining Shares offered pursuant to this Agreement)
during the Term and the exemptive provisions set forth in Rule 101(c)(1)
of Regulation M under the Exchange Act are not satisfied with respect to
the sale of such other shares of Common Stock, it shall promptly notify
the other party and sales of the Remaining Shares under this Agreement and
any Transaction Notice shall be suspended until that or other exemptive
provisions have been satisfied in the judgment of each
party.
|
3. Representations and
Warranties of the Company.
The
Company represents and warrants to KCCI, on and as of (i) the date hereof, (ii)
each Notice Time, and (iii) each Closing Date that:
|
(a)
|
The
Company meets the requirements for use of Form S-3 under the Act for the
registration of the Remaining Shares to be sold pursuant to the
Transactions; the Registration Statement has become effective under the
Act and no stop order suspending the effectiveness of the Registration
Statement has been issued under the Act and no proceedings for that
purpose have been instituted or are pending or, to the Company’s
knowledge, are threatened by the Commission; at the respective times that
the Registration Statement and any post-effective amendment thereto became
effective, the Registration Statement and any post-effective amendment
thereto complied, in all material respects, with the requirements of the
Act; and the Basic Prospectus and the Prospectus Supplement, and any
supplement or amendment thereto, each when filed with the Commission and
on each Closing Date, complied or will comply in all material respects
with the provisions of the Act; each Incorporated Document, when filed
with the Commission, fully complied or will fully comply, in all material
respects, with the requirements of the Exchange Act; the Registration
Statement meets, and the offering and sale of the Shares as contemplated
hereby complies with, the requirements of Rule 415 under the Act; the
Registration Statement did not, as of the time of its effectiveness,
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; as of each Notice Time and each Closing Date, the
Prospectus, as then amended or supplemented, together with all of the then
issued Permitted Free Writing Prospectuses, if any, will not contain an
untrue statement of a material fact or 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; provided,
however, that the Company makes no representation or warranty with respect
to any statement in or omission from the Registration Statement, any Basic
Prospectus, the Prospectus or any Permitted Free Writing Prospectus made
in reliance upon and in conformity with information relating to KCCI
furnished in writing by or on behalf of KCCI expressly for use in the
Registration Statement, such Basic Prospectus, the Prospectus or such
Permitted Free Writing Prospectus.
|
|
(b)
|
Prior
to the execution of this Agreement, the Company has not, directly or
indirectly, offered or sold any Shares by means of any “prospectus”
(within the meaning of the Act) or used any “prospectus” (within the
meaning of the Act) in connection with the offer and sale of the Shares,
in each case other than the Prospectus and the Prior Prospectus; the
Company has not, directly or indirectly, prepared, used or referred to any
Permitted Free Writing Prospectus except in compliance with Rules 164 and
433 under the Act in connection with the offer and sale of the Shares; and
the Company is not an “ineligible issuer” (as
defined in Rule 405 under the Act) as of the eligibility determination
date for purposes of Rules 164 and 433 under the Act with respect to the
offering of the Remaining Shares contemplated by the Registration
Statement.
|
|
(c)
|
The
Company is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation, and is duly
qualified as a foreign corporation and is in good standing in each
jurisdiction in which such qualification is required by law, other than
those jurisdictions as to which the failure to be so qualified or in good
standing could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. “Material Adverse
Effect,” as used herein, means a material adverse effect on (i) the
business, operations, affairs, financial condition, assets or properties
of the Company and its Subsidiaries, taken as a whole, or (ii) the ability
of the Company to perform its obligations under this Agreement, or (iii)
the validity or enforceability of this Agreement. “Subsidiary,” as used herein,
means, as to any Person, any other Person in which such first Person or
one or more of its Subsidiaries or such first Person and one or more of
its Subsidiaries owns sufficient equity or voting interests to enable it
or them (as a group) ordinarily, in the absence of contingencies, to elect
a majority of the directors (or Persons performing similar functions) of
such second Person, and any partnership or joint venture if more than a
50% interest in the profits or capital thereof is owned by such first
Person or one or more of its Subsidiaries or such first Person and one or
more of its Subsidiaries (unless such partnership or joint venture can and
does ordinarily take major business actions without the prior approval of
such Person or one or more of its Subsidiaries). “Person,” as used herein,
means an individual, partnership, corporation, limited liability company,
association, trust, unincorporated organization, or business
entity. The Company has the corporate power and authority to
own or hold under lease the properties it purports to own or hold under
lease, to transact the business it transacts and proposes to transact, to
execute and deliver this Agreement and to perform the provisions hereof
and thereof.
|
|
(d)
|
No
consent, approval or authorization of, or registration, filing or
declaration with, any federal, state or local governmental or regulatory
commission, board, body, authority or agency is required in connection
with the execution, delivery or performance by the Company of this
Agreement and the issuance of the Remaining Shares, except (i) such as
have been, or will have been prior to the Closing Date, obtained under the
Act, (ii) for an existing order of the Minnesota Public Utilities
Commission (the “MPUC”) dated February 3, 2009 approving the capital
structure of the Company including the issuance and sale of the Remaining
Shares (which order is, to the best knowledge of the Company, still in
full force and effect), and future orders of the MPUC, which will be
obtained as required, to permit the issuance and sale of the Remaining
Shares hereunder, (iii) for such consents, approvals, authorizations,
orders, registrations or qualifications as may be required under state
securities or blue sky laws, as the case may be, and except in any case
where the failure to obtain such consent, approval, authorization, order,
registration or qualification would not have a Material Adverse Effect and
(iv) such as may be required in connection with the exercise of the
Rights.
|
|
(e)
|
Except
as disclosed in the Registration Statement, any Basic Prospectus, the
Prospectus or any Permitted Free Writing Prospectus, all of the
outstanding equity interests of each of the Significant Subsidiaries have
been duly authorized and validly issued, are fully paid and non-assessable
and are owned by the Company, directly or indirectly, subject to no
security interest, mortgage, pledge, lien, encumbrance, claim or other
equity or adverse claim except such as do not materially affect the value
thereof (collectively, “Encumbrance”). “Significant Subsidiary,”
as used herein, has the meaning set forth in Item 1.02(w) of Regulation
S-X under the Act.
|
|
(f)
|
This
Agreement has been duly authorized by all necessary corporate action on
the part of the Company, and this Agreement constitutes a legal, valid and
binding obligation of the Company enforceable against the Company in
accordance with its terms, except as such enforceability may be limited by
(i) applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors’ rights generally and
(ii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
|
|
(g)
|
The
Remaining Shares have been duly authorized and, when issued, delivered and
paid for as provided in this Agreement, will be validly issued, fully paid
and non-assessable. The Remaining Shares will conform in all
material respects to the description thereof contained in any Permitted
Free Writing Prospectus and the Prospectus as amended or supplemented to
the date of such issuance.
|
|
(h)
|
The
form of certificates evidencing the Remaining Shares (to the extent such
Shares are certificated) complies with all applicable legal requirements
and, in all material respects, with all applicable requirements of the
Amended and Restated Articles of Incorporation , as amended, and Bylaws,
as amended, of the Company and the requirements of the Exchange (if
any).
|
|
(i)
|
PricewaterhouseCoopers
LLP, which has audited the audited financial statements and the internal
controls over financial reporting of the Company, is an independent
registered public accounting firm with respect to the Company within the
applicable rules and regulations adopted by the Commission and the Public
Accounting Oversight Board (United States) and as required by the
Act.
|
|
(j)
|
Each
of the Company and its Subsidiaries has all necessary licenses,
authorizations, consents and approvals and has made all necessary filings
required under any federal, state, local or foreign law, regulation or
rule, and has obtained all necessary authorizations, consents and
approvals from other persons, in order to conduct its respective business
as described in the Registration Statement, any Basic Prospectus, the
Prospectus or any Permitted Free Writing Prospectus, unless the failure to
possess such licenses, authorizations, consents and other governmental or
regulatory authorizations and approvals or make such necessary filing,
individually or in the aggregate, would not have, or reasonably be
expected to have, a Material Adverse Effect; and except as described in
the Registration Statement, any Basic Prospectus, the Prospectus or any
Permitted Free Writing Prospectus, neither the Company nor any of its
Subsidiaries is in violation of, in default under or has received any
notice regarding a possible violation, default or revocation of any such
license, authorization, consent or approval or any federal, state, local
or foreign law, regulation or rule or any decree, order or judgment
applicable to the Company or any of its Subsidiaries the effect of which
would have, or would reasonably be expected to have, a Material Adverse
Effect.
|
|
(k)
|
Except
as disclosed in the Registration Statement, any Basic Prospectus, the
Prospectus or any Permitted Free Writing Prospectus, there are no actions,
suits, investigations or proceedings pending or, to the knowledge of the
Company, threatened against or affecting the Company or any of its
Subsidiaries or any property of the Company or any of its Subsidiaries in
any court or before any arbitrator of any kind or before or by any
Governmental Authority which is reasonably likely to be determined
adversely and, if determined adversely, might reasonably be expected to
have a Material Adverse Effect.
|
|
(l)
|
The
financial statements included or incorporated in the Registration
Statement, any Basic Prospectus, the Prospectus or any Permitted Free
Writing Prospectus fairly present in all material respects the
consolidated financial position of the Company and its Subsidiaries as of
the respective dates specified in such financial statements and the
consolidated results of their operations and cash flows for the respective
periods so specified and have been prepared in accordance with generally
accepted accounting principles as applied in the United States
consistently applied throughout the periods involved except as set forth
in the notes thereto (subject, in the case of any interim financial
statements, to normal year-end
adjustments).
|
|
(m)
|
Subsequent
to the respective dates as of which information is given in the
Registration Statement, any Basic Prospectus, the Prospectus or any
Permitted Free Writing Prospectus, there has not been (i) any change in
the business, properties or assets described or referred to in the
Registration Statement, or the results of operations, condition (financial
or otherwise), business or operations of the Company and its Subsidiaries,
taken as a whole, that would have, or reasonably be expected to have, a
Material Adverse Effect, or (ii) except as otherwise expressly disclosed
in the Registration Statement, the Basic Prospectus or the Prospectus, (A)
any transaction which is material to the Company or its Subsidiaries,
taken as a whole, planned or entered into by the Company or any of its
Subsidiaries, (B) any obligation, direct or contingent, which is material
to the Company and its Subsidiaries, taken as a whole, incurred by the
Company or its Subsidiaries, except obligations incurred in the ordinary
course of business, (C) any dividend or distribution of any kind
declared, paid or made on the capital stock of the Company (other than the
Company’s regular quarterly cash dividends) or (D) any other material
information required to be publicly disclosed prior to the issuance of any
Remaining Shares in accordance with the Act or the rules and regulations
promulgated thereunder.
|
|
(n)
|
The
Company has filed in a timely manner all reports required to be filed
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act during
the preceding twelve calendar months and if during such period the Company
has relied on Rule 12b-25(b) under the Exchange Act (“Rule 12b-25(b)”) with
respect to a report or a portion of a report, that report or portion of a
report has actually been filed within the time period prescribed by Rule
12b-25(b).
|
|
(o)
|
The
Company is not subject to regulation under the Investment Company Act of
1940, as amended.
|
|
(p)
|
None
of the Company, its Subsidiaries, or any of their respective officers,
directors and controlling persons has taken, directly or indirectly, any
action which is designed to or which has constituted or which might
reasonably be expected to cause or result in stabilization or manipulation
of the price of any security of the Company to facilitate the sale of the
Remaining Shares.
|
|
(q)
|
With
such exceptions as would not have, or would not reasonably be expected to
have, a Material Adverse Effect, the Company and its Subsidiaries have
good and marketable title in fee simple to all real property, if any, and
good title to all personal property owned by them, in each case free and
clear of all Encumbrances, except such as are disclosed in the Basic
Prospectus, the Prospectus or any Permitted Free Writing Prospectus or
such as do not materially and adversely affect the value of such property
and do not interfere with the use made or proposed to be made of such
property by the Company and its Subsidiaries; and any real property and
buildings held under lease by the Company or any of its Subsidiaries are
held under valid, existing and binding leases, with such exceptions as are
disclosed in the Registration Statement, any Basic Prospectus, the
Prospectus or any Permitted Free Writing Prospectus or are not material
and do not interfere with the use made or proposed to be made of such
property and buildings by the Company or such
Subsidiary.
|
4. Certain Covenants of the
Company.
The
Company hereby agrees with KCCI:
|
(a)
|
Before
using or filing any Permitted Free Writing Prospectus relating to the
Remaining Shares and before amending or supplementing the Registration
Statement, the Basic Prospectus (other than as a result of any documents
incorporated by reference due to the filing with the Commission by the
Company), or the Prospectus (except in connection with an offering of
securities other than the Remaining Shares), or during any period of time
in which a Prospectus relating to the Remaining Shares is required to be
delivered under the Act (except in connection with an offering of
securities other than the Remaining Shares), to furnish to KCCI a copy of
each such proposed Permitted Free Writing Prospectus, amendment or
supplement within a reasonable period of time before filing any such
Permitted Free Writing Prospectus, amendment or supplement with the
Commission and the Company will not use or file any such Permitted Free
Writing Prospectus or file any such proposed amendment or supplement to
which KCCI reasonably objects unless the Company’s legal counsel has
advised the Company that filing such documents is required by
law.
|
|
(b)
|
The
Company shall make commercially reasonably efforts to provide KCCI with
advance notice of the intent of the Company to file a Current Report on
Form 8-K (not the substance thereof) if such Form 8-K is to be filed at
any time during which either a Transaction Notice is in effect or a
Prospectus relating to the Remaining Shares is required to be delivered
under the Act, provided that the Company shall not be obligated to
provided such advance notice if, in its reasonable judgment, it is not
legally permitted to do so or doing so would adversely affect the
Company’s ability to file such Form 8-K in a timely
manner.
|
|
(c)
|
To
prepare a Prospectus Supplement, with respect to any Remaining Shares to
be sold by the Company pursuant to this Agreement and to file such
Prospectus Supplement pursuant to, and within the time periods required
by, Rule 424(b) under the Act as may be required by the Act or the rules
and regulations promulgated thereunder and to file any Permitted Free
Writing Prospectus to the extent required by Rule 433 under the Act and to
provide copies of the Prospectus and such Prospectus Supplement and each
Permitted Free Writing Prospectus (to the extent not previously delivered)
to KCCI via e-mail in “.pdf” format on such filing date to an e-mail
account designated by KCCI and, at KCCI’s request, to also furnish copies
of the Prospectus and such Prospectus Supplement to each exchange or
market on which sales were effected as may be required by the rules or
regulations of such exchange or
market.
|
|
(d)
|
To
file timely all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the
delivery of a prospectus is required (whether physically or through
compliance with Rule 172 under the Act or any similar rule) in connection
with the offering or sale of the Remaining Shares, and during such same
period to advise KCCI, promptly after the Company receives notice thereof,
(i) of the time when any amendment to the Registration Statement has been
filed or has become effective or any supplement to the Prospectus or any
Permitted Free Writing Prospectus or any amended Prospectus has been filed
with the Commission, (ii) the issuance by the Commission of any stop order
or of any order preventing or suspending the use of any prospectus
relating to the Remaining Shares or the initiation or threatening of any
proceeding for that purpose or pursuant to Section 8A of the Act, (iii)
the suspension of the qualification of the Remaining Shares for offering
or sale in any jurisdiction, or the initiation or threatening of any
proceeding for any such purpose, and (iv) of any request by the Commission
for the amendment of the Registration Statement or the amendment or
supplementation of the Prospectus.
|
|
(e)
|
In
the event of the issuance of any such stop order or of any such order
preventing or suspending the use of any such prospectus or suspending any
such qualification, to use promptly its commercially reasonable efforts to
obtain its withdrawal.
|
|
(f)
|
To
furnish such information as may be required and otherwise to cooperate in
qualifying the Remaining Shares for offering and sale under the securities
or blue sky laws of such states as KCCI may reasonably designate and to
maintain such qualifications in effect so long as required for the
distribution of the Remaining Shares; provided that the Company shall not
be required to qualify as a foreign corporation, become a dealer of
securities, or become subject to taxation in, or to consent to the service
of process under the laws of, any such state (except service of process
with respect to the offering and sale of the Remaining Shares); and to
promptly advise KCCI of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Remaining
Shares for sale in any jurisdiction or the initiation of any proceeding
for such purpose.
|
|
(g)
|
To
make available to KCCI, without charge, from time to time as many copies
of the Prospectus and the Prospectus Supplement (or of the Prospectus or
Prospectus Supplement as amended or supplemented if the Company shall have
made any amendments or supplements thereto and documents incorporated by
reference therein) and each Permitted Free Writing Prospectus as KCCI may
reasonably request for so long as the delivery of a prospectus is required
(whether physically or through compliance with Rule 172 under the Act or
any similar rule); and for so long as this Agreement is in effect, the
Company will prepare and file promptly, subject to Section 4(a), such
amendment or amendments to the Registration Statement, any Basic
Prospectus, the Prospectus, the Prospectus Supplement or any Permitted
Free Writing Prospectus as may be necessary to comply with the
requirements of Section 10(a)(3) of the
Act.
|
|
(h)
|
Except
where such reports, communications, financial statements or other
information is available on the Commission’s XXXXX or IDEA systems, to
furnish or make available to KCCI during the term of this Agreement
(i) copies of any reports or other communications which the Company
shall send to its shareholders or shall from time to time publish or
publicly disseminate and (ii) copies of all annual, quarterly and current
reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such
other similar form as may be designated by the Commission, and to furnish
to KCCI from time to time during the term of this Agreement such other
information as KCCI may reasonably request regarding the Company, in each
case as soon as such reports, communications, documents or information
becomes available or promptly upon the request of KCCI, as
applicable.
|
|
(i)
|
If,
at any time during the Term, any event shall occur or condition exist as a
result of which it is necessary, in the reasonable opinion of counsel for
the Company, to further amend or supplement the Prospectus or any
Permitted Free Writing Prospectus as then amended or supplemented in order
that the Prospectus or any such Permitted Free Writing Prospectus will not
include an 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 not misleading, in light of the circumstances
existing at the time the Prospectus or any such Permitted Free Writing
Prospectus is delivered to a purchaser, or if it shall be necessary, in
the reasonable opinion of such counsel, to amend or supplement the
Registration Statement or the Prospectus or any Permitted Free Writing
Prospectus in order to comply with the requirements of the Act, immediate
notice shall be given, and confirmed in writing, to KCCI to cease the sale
of the Remaining Shares, and the Company will promptly prepare and file
with the Commission such amendment or supplement, whether by filing
documents pursuant to the Act, the Exchange Act or otherwise, as may be
necessary to correct such untrue statement or omission or to make the
Registration Statement, Prospectus or any such Permitted Free Writing
Prospectus comply with such
requirements.
|
|
(j)
|
To
generally make available to its security holders as soon as practicable,
but not later than 90 days after the close of the period covered thereby,
an earnings statement (in form complying with the provisions of Section
11(a) under the Act and Rule 158 of the Commission promulgated thereunder)
covering each twelve-month period beginning, in each case, not later than
the first day of the Company’s fiscal quarter next following the “effective date” (as
defined in such Rule 158) of the Registration Statement with respect to
each sale of Shares.
|
|
(k)
|
To
furnish to KCCI two signed copies of the Registration Statement, as
initially filed with the Commission, and of all amendments thereto,
including all exhibits thereto.
|
|
(l)
|
To
apply the net proceeds from the sale of the Shares in the manner described
in the Registration Statement, any Basic Prospectus, the Prospectus or any
Permitted Free Writing Prospectus.
|
|
(m)
|
That
the Company will not, and will cause its Subsidiaries not to, take
directly or indirectly any action designed to cause or result in, or that
constitutes or might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the Company
to facilitate the sale of the Remaining
Shares.
|
|
(n)
|
Except
as otherwise agreed between the Company and KCCI, to pay all costs,
expenses, fees and taxes in connection with (i) the preparation and filing
of the Registration Statement, any Basic Prospectus, the Prospectus, any
Permitted Free Writing Prospectus, and any amendments or supplements
thereto, and the printing and furnishing of copies of each thereof to KCCI
and to dealers (including costs of mailing and shipment), (ii) the
registration, issue and delivery of the Remaining Shares, (iii) the
qualification of the Remaining Shares for offering and sale under state
laws and the determination of their eligibility for investment under state
law as aforesaid (including the reasonable legal fees and filing fees and
other disbursements of counsel for KCCI in connection therewith) and the
printing and furnishing of copies of any blue sky surveys or legal
investment surveys to KCCI, (iv) the listing of the Remaining Shares on
the Exchange and any registration thereof under the Exchange Act, (v) any
filing for review of the public offering of the Remaining Shares by the
Financial Industry Regulatory Authority, Inc., (vi) the reasonable fees
and disbursements of counsel to the Company and (vii) the performance of
the Company’s other obligations hereunder; provided that KCCI shall be
responsible for any costs and expenses associated with the sale and
marketing of the Remaining Shares, and legal costs of
KCCI.
|
|
(o)
|
With
respect to the offering contemplated hereby, that the Company will not
offer shares of its Common Stock or any other securities convertible into
or exchangeable or exercisable for shares of Common Stock in a manner in
violation of the Act; the Company will not distribute any offering
material in connection with the offer and sale of the Remaining Shares,
other than the Registration Statement, any Basic Prospectus, the
Prospectus or any Permitted Free Writing Prospectus and other materials
permitted by the Act or the rules and regulations promulgated
thereunder.
|
|
(p)
|
On
the Purchase Date for each Transaction, the Company will not (i) offer,
pledge, announce the intention to sell, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase or otherwise transfer or
dispose of, directly or indirectly, any shares of its Common Stock or any
securities convertible into or exercisable or exchangeable for such shares
or (ii) enter into any swap or other agreement that transfers, in whole or
in part, any of the economic consequences of ownership of such shares,
whether any such transaction described in clause (i) or (ii) above is to
be settled by delivery of shares or such other securities, in cash or
otherwise, without the prior written consent of KCCI, other than the
Remaining Shares to be sold hereunder, any shares of Common Stock of the
Company issued upon the exercise of options granted under employee stock
option plans or pursuant to the Company’s Direct Stock Purchase and
Dividend Reinvestment Plan and any shares of Common Stock or options
issued in connection with any employment or compensatory contract,
compensation or benefit plan or other similar arrangement with or for the
benefit of employees, officers, directors or
consultants.
|
|
(q)
|
That
the Company will, pursuant to reasonable procedures developed in good
faith, retain copies of each Permitted Free Writing Prospectus that is not
filed with the Commission in accordance with Rule 433 under the
Act.
|
|
(r)
|
To
use commercially reasonable efforts to satisfy, or cause to be satisfied,
the conditions set forth below in Section 5 on or in respect of each
Closing Date hereunder.
|
|
|
(s)
|
That
upon the expiration or termination of the Registration Statement, the
Company shall not deliver any Transaction Notices or permit any additional
sales of Shares under this Agreement until the Company has filed a new
registration statement with the Commission and such registration has been
deemed or declared effective by the
Commission.
|
5. Execution of
Agreement.
KCCI’s
obligation to execute this Agreement shall be subject to the delivery by the
Company of the following documents in connection with and on the intended date
of the execution of this Agreement:
|
(a)
|
an
officer’s certificate signed by an officer of the Company certifying as to
the matters set forth in Exhibit B
hereto;
|
|
(b)
|
an
opinion of Xxxxxxx X. Xxxxxx, Esq., Senior Vice President, General Counsel
and Secretary of the Company, as to the matters set forth in Exhibit C
hereto, and Xxxxxx, Xxxxx & Bockius LLP, as to the matters set forth
in Exhibit D
hereto, counsels for the Company, addressed to KCCI and dated the date of
this Agreement;
|
|
(c)
|
resolutions
duly adopted by the Company’s board of directors, and certified by an
officer of the Company, authorizing the Company’s execution of this
Agreement and the consummation by the Company of the transactions
contemplated hereby, including the issuance of the Remaining Shares;
and
|
|
(d)
|
in
the event the Company is required by the rules of the Exchange to make one
or more filings for approval of listing of the Remaining Shares by the
Exchange, evidence that the Remaining Shares have been approved for
listing on the Exchange, subject only to notice of issuance on or before
the Purchase Date.
|
6. Additional Covenants of the
Company.
The
Company further covenants and agrees with KCCI as follows:
|
(a)
|
Each
issuance of a Transaction Notice by the Company shall be deemed to be an
affirmation that the representations and warranties of the Company herein
contained and contained in any certificate delivered to KCCI pursuant
hereto are true and correct at the Notice Time, and an undertaking that
such representations and warranties will be true and correct on any
Closing Date (subject only to Section 4(i) above), and at the time of
delivery to KCCI of Remaining Shares pursuant to the Transaction Notice,
as though made at and as of each such time (it being understood that such
representations and warranties shall relate to the Registration Statement,
any Basic Prospectus, the Prospectus or any Permitted Free Writing
Prospectus as amended and supplemented to the time of such Transaction
Notice).
|
|
(b)
|
Upon
the filing with the Commission of the Company’s Annual Report on Form 10-K
and, if requested by KCCI, each other time that the Registration
Statement, any Basic Prospectus, the Prospectus or any Permitted Free
Writing Prospectus shall be amended or supplemented (including by the
filing of any Incorporated Document (subject to the proviso at the end of
this subsection (b) in the case of a Current Report on Form 8-K), but
excluding any amendment or supplement in connection with an offering of
securities other than the Remaining Shares or any prospectus supplement
relating solely to the offering of Remaining Shares pursuant to a
Transaction Notice), the Company shall furnish or cause to be furnished to
KCCI forthwith a certificate, dated the date of filing with the Commission
or the date of effectiveness of such amendment or supplement, as
applicable, in form satisfactory to KCCI, certifying as to the matters set
forth in Exhibit
B hereto at the time of the filing or effectiveness of such
amendment or supplement, as applicable, as though made at and as of such
time (except that such statements shall be deemed to relate to the
Registration Statement, any Basic Prospectus, the Prospectus or any
Permitted Free Writing Prospectus as amended and supplemented to such
time) or, in lieu of such certificate, a certificate of the same tenor as
the certificate referred to in Section 5(a) hereof, modified as necessary
to relate to the Registration Statement, any Basic Prospectus, the
Prospectus or any Permitted Free Writing Prospectus as amended and
supplemented to the time of delivery of such certificate; provided that,
the Company will not be required to furnish such a certificate to KCCI in
connection with the filing of a Current Report on Form 8-K unless (i) such
Current Report on Form 8-K is filed at any time during which either a
Transaction Notice is in effect or a Prospectus relating to the Remaining
Shares is required to be delivered under the Act and (ii) KCCI has
reasonably requested such a certificate based upon the event or events
reported in such Current Report on Form
8-K.
|
|
(c)
|
Upon
the filing with the Commission of the Company’s Annual Report on Form 10-K
and, if requested by KCCI, upon the filing with the Commission of a
Quarterly Report on Form 10-Q, as promptly as reasonably practicable, the
Company shall furnish or cause to be furnished forthwith to KCCI the
written opinion of Xxxxxxx X. Xxxxxx, Esq., Senior Vice President, General
Counsel & Secretary and Xxxxxx, Xxxxx & Bockius LLP, or other
counsel satisfactory to KCCI, dated the date of filing with the
Commission, in form and substance satisfactory to KCCI, of the same tenor
as the opinions referred to in Section 5(b) hereof, but modified as
necessary to relate to the Registration Statement, any Basic Prospectus,
the Prospectus or any Permitted Free Writing Prospectus as amended and
supplemented to the time of delivery of such opinion or, in lieu of such
opinion, counsel last furnishing such opinion to KCCI shall furnish KCCI
with a letter substantially to the effect that KCCI may rely on such last
opinion to the same extent as though it was dated the date of such letter
authorizing reliance (except that statements in such last opinion shall be
deemed to relate to the Registration Statement, any Basic Prospectus, the
Prospectus or any Permitted Free Writing Prospectus as amended and
supplemented to the time of delivery of such letter authorizing
reliance).
|
|
(d)
|
If
requested by KCCI, as soon as practicable after the filing with the
Commission of the Company’s Annual Report on Form 10-K, a Quarterly Report
on Form 10-Q, or a Current Report on Form 8-K that includes financial
statements (excluding (i) any financial statements which are furnished and
not filed and (ii) any financial statements of any acquired business), the
Company shall cause PricewaterhouseCoopers LLP promptly to furnish to KCCI
a comfort letter in a form reasonably satisfactory to KCCI that relates to
the Registration Statement, any Basic Prospectus, the Prospectus or any
Permitted Free Writing Prospectus as amended and supplemented to the date
of such letter.
|
|
(e)
|
The
Company shall give a written notice to KCCI of the issuance of any
authorization by the MPUC relating to the authority of the Company to
issue and sell shares of Common Stock. Following the issuance
of such authorization, the legal opinions of counsel attached hereto as
Exhibits B and C shall be respectively modified to reflect such
authorization.
|
|
(f)
|
To
disclose in its Quarterly Reports on Form 10-Q and in its Annual Report on
Form 10-K the number of the Remaining Shares sold through KCCI under this
Agreement and the net proceeds to the Company from the sale of the
Remaining Shares pursuant to this Agreement during the relevant
quarter.
|
|
(g)
|
The
Company shall not be required to deliver the documents listed in Sections
6(b), 6(c), 6(d) and 6(e) if the Company notifies the Agent pursuant to
Section 11 that the Company does not intend to sell Remaining Shares
pursuant to this Agreement during the current fiscal quarter, provided
that if the Company subsequently elects to sell Remaining Shares pursuant
to this Agreement during such fiscal quarter the documents required by
Sections 6(b), 6(c), 6(d) and 6(e) shall be delivered to the
Agent
|
7. Conditions of KCCI’s
Obligation to Execute Sales.
KCCI’s
obligation to execute any sale of Remaining Shares pursuant to a Transaction
Notice that has been accepted by KCCI shall be subject to the satisfaction of
the following conditions at the time of acceptance of the Transaction Notice,
the time of the commencement of trading on the Exchange on the Purchase Date and
at the time of closing on the Closing Date:
|
(a)
|
The
representations and warranties on the part of the Company herein contained
or contained in any certificate of an officer or officers of the Company
delivered pursuant to the provisions hereof shall be true and correct in
all respects.
|
|
(b)
|
The
Company shall have performed and observed its covenants and other
obligations hereunder in all material
respects.
|
|
(c)
|
From
the date of delivery of the Transaction Notice until the Closing Date,
trading in the Common Stock on the Exchange shall not have been
suspended.
|
|
(d)
|
(i)
No order suspending the effectiveness of the Registration Statement shall
be in effect, and no proceeding for such purpose or pursuant to Section 8A
under the Act shall be pending before or threatened by the Commission; the
Prospectus and each Permitted Free Writing Prospectus shall have been
timely filed with the Commission under the Act (in the case of a Permitted
Free Writing Prospectus, to the extent required by Rule 433 under the
Act); and all requests by the Commission for additional information shall
have been complied with to the satisfaction of the Commission and no
suspension of the qualification of the Remaining Shares for offering or
sale in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes, will have occurred and be in effect
at the time the Company issues a Transaction Notice; and (ii) the
Registration Statement, any Basic Prospectus, the Prospectus or any
Permitted Free Writing Prospectus shall not contain an untrue statement of
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 at the time the
Company issues a Transaction
Notice.
|
|
(e)
|
Subsequent
to the time of acceptance of the Transaction Notice, (i) no downgrading
shall have occurred in the rating accorded any securities of the Company
by any “nationally recognized statistical rating organization”, as defined
in Section 3(a)(62) of the Exchange Act and (ii) no such organization
shall have publicly announced that it has under surveillance or review, or
has changed its outlook with respect to, its rating of any securities of
the Company with possible negative
implications.
|
|
(f)
|
The
Remaining Shares to be issued pursuant to the Transaction Notice shall
have been approved for listing on the Exchange, subject only to notice of
issuance.
|
|
(g)
|
No
amendment or supplement to the Registration Statement, any Basic
Prospectus, the Prospectus or any Permitted Free Writing Prospectus shall
have been filed to which KCCI shall have reasonably objected in
writing.
|
|
(h)
|
On
or prior to the Closing Date, the Company shall have furnished to KCCI
such further certificates and documents as KCCI may reasonably
request.
|
8. Termination by
KCCI.
This
Agreement and the obligations of KCCI hereunder may be terminated, in the sole
and absolute discretion of KCCI, if at any time (i) any of the covenants or
conditions specified in Section 6 shall not have been performed or satisfied
when and as required by this Agreement to be fulfilled, (ii) there has been
since the respective dates as of which information is given in the Registration
Statement, any change in the business, properties or assets or the results of
operations, condition (financial or otherwise), business or operations of the
Company and its Subsidiaries, taken as a whole, that would have, or reasonably
be expected to have, a Material Adverse Effect, (iii) there has occurred since
the date hereof an outbreak or escalation of hostilities, any material adverse
change in the financial markets or any other national or international calamity
or crisis the effect of which on the financial markets of the United States is
such as to make it, in the reasonable judgment of KCCI, impracticable or
inadvisable to market or deliver the Remaining Shares on the terms and in the
manner contemplated in the Prospectus or enforce contracts for the sale of the
Remaining Shares, or (iv) trading in any securities of the Company has been
suspended by the Commission or by the Exchange or if trading generally on the
Exchange has been suspended, or limitations on prices for trading have been
fixed, or maximum ranges for prices for securities have been required, by such
Exchange or the Financial Industry Regulatory Authority, Inc. or by order of the
Commission or any other governmental authority, or (v) a banking moratorium has
been declared by federal or New York authorities.
If KCCI
elects to terminate this Agreement as provided in this Section 8, KCCI shall
promptly notify the Company of such termination by telephone, promptly confirmed
by facsimile stating in reasonable detail the basis therefore. If a
Transaction Notice is pending at the time of termination, KCCI may declare such
Transaction Notice void or may require the Company to complete the sale of
Remaining Shares as specified in the Transaction Notice, at KCCI’s sole
discretion (to the extent doing so is permitted under applicable law and
regulation).
If the
sale of Remaining Shares, as contemplated by this Agreement, is not carried out
by KCCI for any reason permitted under this Agreement or if such sale is not
carried out because the Company shall be unable to comply in all material
respects with any of the terms of this Agreement, the Company shall not be under
any obligation or liability under this Agreement (except to the extent provided
in Sections 4(n) and 10 hereof) and KCCI shall be under no obligation or
liability to the Company under this Agreement (except to the extent provided in
Section 10 hereof) or to one another hereunder.
KCCI may
terminate this Agreement for any reason upon giving ten (10) Exchange Business
Days prior notice to the Company. Any such termination shall be
without liability of any party to any other party except that the provisions of
Sections 4(n) and 10 hereof shall remain in full force and effect
notwithstanding such termination.
9. Termination by
Company.
The
Company may terminate this Agreement in its sole discretion upon ten (10)
Exchange Business Days prior written notice to KCCI. Any such
termination shall be without liability of any party to any other party except
that the provisions of Sections 4(n) and 10 hereof shall remain in full force
and effect notwithstanding such termination.
10. Indemnity and
Contribution.
|
(a)
|
The
Company agrees to indemnify and hold harmless KCCI, its directors and
officers and each person, if any, who controls KCCI within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, from and against
any and all losses, claims, damages and liabilities (including, without
limitation, reasonable out-of-pocket legal fees and other expenses
incurred in connection with any suit, action or proceeding or any claim
asserted, as such fees and expenses are incurred), that arise out of, or
are based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or caused by any
omission or alleged omission to state therein a material fact required to
be stated therein or necessary in order to make the statements therein,
not misleading, or (ii) or any untrue statement or alleged untrue
statement of a material fact contained in the Prospectus (or any amendment
or supplement thereto), the Prior Prospectus, any Permitted Free Writing
Prospectus (or any amendment or supplement thereto), or caused by any
omission or alleged omission to state therein a material fact necessary in
order to make the statements therein, in light of the circumstances under
which they were made, not misleading, in each case except insofar as such
losses, claims, damages or liabilities arise out of, or are based upon,
any untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with any information relating to
KCCI furnished to the Company in writing by KCCI expressly for use
therein.
|
|
(b)
|
KCCI
agrees to indemnify and hold harmless the Company, its directors, its
officers who signed the Registration Statement and each person, if any,
who controls the Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act to the same extent as the indemnity set
forth in paragraph (a) above, but only with respect to any losses, claims,
damages or liabilities that arise out of, or are based upon, any untrue
statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with any information relating to KCCI
furnished to the Company in writing by KCCI expressly for use in the
Registration Statement, the Basic Prospectus, the Prospectus (or any
amendment or supplement thereto), the Prior Prospectus, any Permitted Free
Writing Prospectus (or any amendment or supplement
thereto).
|
|
(c)
|
If
any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any
person in respect of which indemnification or contribution may be sought
pursuant to this Section 10, such person (the “Indemnified Person”)
shall promptly notify the person against whom such indemnification or
contribution may be sought (the “Indemnifying Person”) in
writing; provided that the failure to notify the Indemnifying Person shall
not relieve it from any liability that it may have to an Indemnified
Person otherwise than under this Section 10. If any such
proceeding shall be brought or asserted against an Indemnified Person and
it shall have notified the Indemnifying Person thereof, the Indemnifying
Person shall retain counsel reasonably satisfactory to the Indemnified
Person (who shall not, without the consent of the Indemnified Person, be
counsel to the Indemnifying Person) to represent the Indemnified Person in
such proceeding and shall pay the fees and expenses of such counsel
related to such proceeding, as incurred. In any such
proceeding, any Indemnified Person shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense
of such Indemnified Person unless (i) the Indemnifying Person and the
Indemnified Person shall have mutually agreed to the contrary or (ii) the
Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person. It is
understood and agreed that the Indemnifying Person shall not, in
connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and expenses shall be paid or reimbursed
as they are incurred. Any such separate firm for KCCI, its
directors and officers and any control persons of KCCI shall be designated
in writing by KCCI and any such separate firm for the Company, its
directors, its officers who signed the Registration Statement and any
control persons of the Company shall be designated in writing by the
Company. The Indemnifying Person shall not be liable for any
settlement of any proceeding effected without its written consent, which
consent shall not be unreasonably withheld, but if settled with such
consent or if there be a final judgment for the plaintiff, the
Indemnifying Person agrees to indemnify each Indemnified Person from and
against any loss or liability by reason of such settlement or
judgment. No Indemnifying Person shall, without the written
consent of the Indemnified Person, which consent shall not be unreasonably
withheld, effect any settlement of any pending or threatened proceeding in
respect of which any Indemnified Person is or could have been a party and
indemnification could have been sought hereunder by such Indemnified
Person, unless such settlement (x) includes an unconditional release of
such Indemnified Person, in form and substance reasonably satisfactory to
such Indemnified Person, from all liability on claims that are the subject
matter of such proceeding and (y) does not include any statement as to or
any admission of fault, culpability or a failure to act by or on behalf of
any Indemnified Person.
|
|
(d)
|
If
the indemnification provided for in paragraphs (a) and (b) above is
unavailable to an Indemnified Person or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or
payable by such Indemnified Person as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect
the relative fault of the Company, on the one hand, and KCCI, on the
other, in connection with the statements or omissions that resulted in
such losses, claims, damages or liabilities, (ii) the relative benefits
received by the Company, on the one hand, and KCCI, on the other, from the
offering of the Shares or (iii) any other relevant equitable
considerations; provided, however, that no indemnified party guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution with respect thereto from any
indemnifying party not guilty of such fraudulent
misrepresentation. Relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or KCCI and
each such party’s relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or
omission. The Company and KCCI agree that it would not be just
and equitable if contribution pursuant to this subsection (d) were to
be determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to
above. Notwithstanding the provisions of this
subsection (d), KCCI shall not be required to contribute in excess of
the amount equal to the excess of (i) the total price at which the
Shares offered by it were offered to the public, over (ii) the amount
of any damages which KCCI has otherwise been required to pay by reason of
any such untrue or alleged untrue statement or omission or alleged
omission.
|
|
(e)
|
The
remedies provided for in this Section 10 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any
Indemnified Person at law or in
equity.
|
11. Notices.
All
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted and confirmed by any
standard form of communication, and if to KCCI, shall be sufficient in all
respects if delivered to KCCI Inc., 00 Xxxxxx Xxxx, Xxxxx 0000, Xxx Xxxx,
Xxx Xxxx 00000, and if to the Company, shall be sufficient in all respects if
delivered or sent to the Company at the offices of the Company at ALLETE, Inc.,
00 Xxxx Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxx 00000, Attn:
Treasurer. Notwithstanding the foregoing, Transaction Notices shall
be delivered to KCCI, and acceptance of Transaction Notices by KCCI shall be
delivered to the Company, by facsimile and receipt confirmed by telephone at
such numbers as shall be agreed upon by KCCI and the Company in writing from
time to time.
12. No Fiduciary
Relationship.
The
Company acknowledges and agrees that KCCI is acting solely in the capacity of an
arm’s length contractual counterparty to the Company with respect to the
offering of Shares contemplated hereby (including in connection with determining
the terms of the offering) and not as a financial advisor or a fiduciary to the
Company or any other person. Additionally, KCCI is not advising the
Company or any other person as to any legal, tax, investment, accounting or
regulatory matters in any jurisdiction. The Company shall consult
with its own advisors concerning such matters and shall be responsible for
making its own independent investigation and appraisal of the transactions
contemplated hereby, and KCCI shall have no responsibility or liability to the
Company with respect thereto except as set forth herein. Any review
by KCCI of the Company, the transactions contemplated hereby or other matters
relating to such transactions will be performed solely for the benefit of KCCI
and shall not be on behalf of the Company.
13. Adjustments for Stock
Splits.
The
parties acknowledge and agree that all share-related numbers related to the
Shares contained in this Agreement and any Transaction Notice shall be adjusted
to take into account any stock split effected with respect to the Common
Stock.
14. Governing Law;
Construction.
THIS
AGREEMENT SHALL BE GOVERNED BY, INTERPRETED UNDER AND CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED WITHIN THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO
PRINCIPLES OF CONFLICTS OF LAWS THEREOF. The Section headings in
this Agreement have been inserted as a matter of convenience of reference and
are not a part of this Agreement.
15. Parties in
Interest.
The
Agreement herein set forth has been and is made solely for the benefit of KCCI
and the Company and to the extent provided in Section 10 hereof the controlling
persons, directors and officers referred to in such section, and their
respective successors, assigns, heirs, personal representatives and executors
and administrators. No other person, partnership, association or
corporation (including a purchaser, as such purchaser, from KCCI) shall acquire
or have any right under or by virtue of this Agreement.
16. Counterparts.
This
Agreement may be signed in counterparts (which may include counterparts
delivered by any standard form of telecommunication), each of which shall be an
original and all of which together shall constitute one and the same
instrument.
17. Successors and
Assigns.
This
Agreement shall be binding upon KCCI and the Company and their successors and
assigns and any successor or assign of any substantial portion of the Company’s
and KCCI’s respective businesses and/or assets.
18. Survival.
The
respective indemnities, rights of contribution, representations, warranties and
agreements of the Company and KCCI contained in this Agreement or made by or on
behalf of the Company or KCCI pursuant to this Agreement or any certificate
delivered pursuant hereto shall survive the delivery of and payment for the
Shares and shall remain in full force and effect, regardless of any termination
of this Agreement or any investigation made by or on behalf of the Company or
KCCI.
19. Amendments or
Waivers.
No
amendment or waiver of any provision of this Agreement, nor any consent or
approval to any departure therefrom, shall in any event be effective unless the
same shall be in writing and signed by the parties hereto.
If the
foregoing correctly sets forth the understanding among the Company and KCCI,
please so indicate in the space provided below for the purpose, whereupon this
letter and your acceptance shall constitute a binding agreement between the
Company and KCCI.
Very
truly yours,
ALLETE,
Inc.
By: /s/ Xxxx X.
Xxxxxxx
Name: Xxxx
X. Xxxxxxx
Title:Sr.
Vice President & CFO
Accepted
and agreed to as of the
date
first above written:
KCCI
Inc.
By: /s/ Xxxx
Xxxxxx
Name: Xxxx
Xxxxxx
Title: President
