Exhibit 1.1
Sales Agency Agreement
Sales Agency Agreement (this "Agreement"), dated as of December 15,
2005, between IDACORP, INC., an Idaho corporation (the "Company"), and BNY
CAPITAL MARKETS, INC., a registered broker-dealer organized under the laws of
New York ("BNYCMI").
W I T N E S S E T H:
WHEREAS, the Company has authorized and proposes to issue and sell in
the manner contemplated by this Agreement up to 2,500,000 Common Shares upon the
terms and subject to the conditions contained herein; and
WHEREAS, BNYCMI has been appointed by the Company as its agent to sell
the Common Shares and agrees to use its commercially reasonable efforts to sell
the Common Shares offered by the Company upon the terms and subject to the
conditions contained herein.
NOW THEREFORE, in consideration of the premises, representations,
warranties, covenants and agreements contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, intending to be legally bound hereby, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.01 Certain Definitions. For purposes of this Agreement,
capitalized terms used herein and not otherwise defined shall have the following
respective meanings:
"Actual Sold Amount" means the number of Issuance Shares that BNYCMI has
sold during the Selling Period.
"Affiliate" of a Person means another Person that directly or
indirectly, through one or more intermediaries, controls, is controlled by, or
is under common control with, such first- mentioned Person. The term "control"
(including the terms "controlling," "controlled by" and "under common control
with") means the possession, direct or indirect, of the power to direct or cause
the direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
"Closing" has the meaning set forth in Section 2.02.
"Closing Date" means the date on which the Closing occurs.
"Commission" means the United States Securities and Exchange Commission.
"Commitment Period" means the period commencing on the date of this
Agreement and expiring on the earliest to occur of (x) the date on which BNYCMI
shall have sold the Maximum Program Amount pursuant to this Agreement, (y) the
date this Agreement is terminated pursuant to Article VII and (z) the second
anniversary of the date of this Agreement.
"Common Stock" shall mean the Company's Common Stock, without par value,
and the preferred share purchase rights attached thereto.
"Common Shares" shall mean shares of the Company's Common Stock issued
or issuable pursuant to this Agreement.
"Effective Date" has the meaning set forth in Section 3.03.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Floor Price" means the minimum price set by the Company in the Issuance
Notice below which BNYCMI shall not sell Common Shares during the Selling
Period, which may be adjusted by the Company at any time during the Selling
Period and which in no event shall be less than $1.00 without the prior written
consent of BNYCMI, which may be withheld in BNYCMI's sole discretion.
"Issuance" means each occasion the Company elects to exercise its right
to deliver an Issuance Notice requiring BNYCMI to use its commercially
reasonable efforts to sell the Common Shares as specified in such Issuance
Notice, subject to the terms and conditions of this Agreement.
"Issuance Amount" means the number of Issuance Shares to be sold by
BNYCMI with respect to any Issuance, which may not exceed 500,000 Common Shares
during any Selling Period without the prior written consent of BNYCMI, which may
be withheld in BNYCMI's sole discretion.
"Issuance Date" means any Trading Day during the Commitment Period that
an Issuance Notice is deemed delivered pursuant to Section 2.03(b) hereof.
"Issuance Notice" means a written notice to BNYCMI delivered in
accordance with this Agreement in the form attached hereto as Exhibit A.
"Issuance Price" means the Sales Price less the Selling Commission.
"Issuance Shares" means all shares of Common Stock issued or issuable
pursuant to an Issuance that has occurred or may occur in accordance with the
terms and conditions of this Agreement.
"Material Adverse Effect" means a material adverse effect on the
business, earnings, assets, operations, properties or condition (financial or
otherwise) of the Company and its Subsidiaries, taken as a whole, or any
material adverse effect on the Company's ability to consummate the transactions
contemplated by, or to execute, deliver and perform its obligations under, this
Agreement.
"Material Subsidiary" has the meaning set forth in Section 3.05.
"Maximum Program Amount" means 2,500,000 Common Shares (or, if less, the
aggregate amount of Common Shares registered under the Registration Statement).
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"NYSE" means the New York Stock Exchange.
"Person" means an individual or a corporation, partnership, limited
liability company, trust, incorporated or unincorporated association, joint
venture, joint stock company, governmental authority or other entity of any
kind.
"Principal Market" means the NYSE.
"Prospectus" has the meaning set forth in Section 3.01.
"Registration Statement" has the meaning set forth in Section 3.01.
"Representation Date" has the meaning set forth in the introductory
paragraph of Article III.
"Sales Price" means the actual sale execution price of each Common Share
sold by BNYCMI on the Principal Market hereunder in the case of ordinary
brokers' transactions, or as otherwise agreed by the parties in other methods of
sale.
"Securities Act" means the Securities Act of 1933, as amended.
"Selling Commission" means 1.0% of the Sales Price.
"Selling Period" means the period of one to twenty consecutive Trading
Days (as determined by the Company in the Company's sole discretion and
specified in the applicable Issuance Notice) following the Trading Day on which
an Issuance Notice is delivered or deemed to be delivered pursuant to Section
2.03(b) hereof.
"Settlement Date" means the third (3rd) Trading Day following the sale
of any Issuance Shares pursuant to this Agreement.
"Subsidiary" has the meaning set forth in Section 3.05.
"Trading Day" means any day which is a trading day on the NYSE, other
than a day on which trading is scheduled to close prior to its regular weekday
closing time.
"Voting Stock" of any Person as of any date means the capital stock of
such Person that is at the time entitled to vote in the election of the Board of
Directors of such Person.
ARTICLE II
ISSUANCE AND SALE OF COMMON STOCK
Section 2.01 Issuance. Section 2.02 (a) Upon the terms and subject to
the conditions of this Agreement, the Company may sell Common Shares through
BNYCMI and BNYCMI shall use its commercially reasonable efforts to sell Common
Shares, up to the Maximum Program Amount, based on and in accordance with such
number of Issuance Notices as the Company shall choose to deliver during the
Commitment Period until the aggregate number of Common Shares sold under this
Agreement equals the Maximum Program Amount or this Agreement is
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otherwise terminated. Subject to the foregoing and the other terms and
conditions of this Agreement, upon the delivery of an Issuance Notice, and
unless the sale of the Issuance Shares described therein has been suspended,
cancelled or otherwise terminated in accordance with the terms of this
Agreement, BNYCMI will use its commercially reasonable efforts consistent with
its normal trading and sales practices to sell such Issuance Shares up to the
Issuance Amount specified in such Issuance Notice, and otherwise in accordance
with the terms of such Issuance Notice. BNYCMI will provide written confirmation
to the Company no later than the opening of the Trading Day next following the
Trading Day on which it has made sales of Issuance Shares hereunder setting
forth the portion of the Actual Sold Amount for such Trading Day, the
corresponding Sales Price and the Issuance Price payable to the Company in
respect thereof. BNYCMI may sell Issuance Shares in the manner described in
Section 2.01(b) herein. The Company acknowledges and agrees that (i) there can
be no assurance that BNYCMI will be successful in selling Issuance Shares and
(ii) BNYCMI will incur no liability or obligation to the Company or any other
Person if it does not sell Issuance Shares for any reason other than a failure
by BNYCMI to use its commercially reasonable efforts consistent with its normal
trading and sales practices to sell such Issuance Shares as required under this
Section 2.01. In acting hereunder, BNYCMI will be acting as agent for the
Company and not as principal.
(b) Method of Offer and Sale. The Common Shares may be offered and sold
by any method permitted by law and deemed to be an "at-the-market offering" as
defined in Rule 415 of the Securities Act, including sales made directly on the
Principal Market or sales made, if and only if the parties hereto have so agreed
in writing, to or through a market maker, through an electronic communications
network or in privately negotiated transactions. Nothing in this Agreement shall
be deemed to require either party to agree to the offering and sale of Common
Shares to or through a market maker, through an electronic communications
network or in privately negotiated transactions, and either party may withhold
its consent thereto in its sole discretion.
(c) Issuances. Upon the terms and subject to the conditions set forth
herein, on any Trading Day as provided in Section 2.03(b) hereof during the
Commitment Period on which the conditions set forth in Section 5.01 and 5.02
hereof have been satisfied, the Company may exercise an Issuance by the delivery
of an Issuance Notice, executed by the Chief Executive Officer, the Chief
Financial Officer, the President, the Executive Vice President, the Treasurer,
any Senior Vice President or the Secretary of the Company, to BNYCMI. BNYCMI
shall use its commercially reasonable efforts to sell pursuant to such Issuance
not more than the Issuance Amount. Each sale of Issuance Shares will be settled
on the applicable Settlement Date following such sale.
Section 2.02 Effectiveness. The effectiveness of this Agreement (the
"Closing") shall be deemed to take place concurrently with the execution and
delivery of this Agreement by the parties hereto and the completion of the
closing transactions set forth in the immediately following sentence. At the
Closing, the following closing transactions shall take place, each of which
shall be deemed to occur simultaneously with the Closing: (i) the Company shall
deliver to BNYCMI a certificate executed by the Secretary of the Company,
signing in such capacity, dated the date of the Closing (A) certifying that
attached thereto are true and complete copies of the resolutions duly adopted by
the Board of Directors of the Company authorizing the execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby
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(including, without limitation, the issuance of the Common Shares pursuant to
this Agreement), which authorization shall be in full force and effect on and as
of the date of such certificate and (B) certifying and attesting to the office,
incumbency, due authority and specimen signatures of each Person who executed
the Agreement for or on behalf of the Company; (ii) the Company shall deliver to
BNYCMI a certificate executed by the Chief Executive Officer, the President, the
Executive Vice President, any Senior Vice President of the Company or the Chief
Financial Officer of the Company, signing in such capacity, dated the date of
the Closing, confirming that the representations and warranties of the Company
contained in this Agreement are true and correct in all material respects and
that the Company has performed in all material respects all of its obligations
hereunder to be performed on or prior to the Closing Date and as to the matters
set forth in Section 5.01(a) hereof; (iii) Xxxxxx X. Xxxxxx, Esq., Senior Vice
President, General Counsel and Secretary of the Company, shall deliver to BNYCMI
an opinion, dated the date of the Closing and addressed to BNYCMI, substantially
in the form of Exhibit B attached hereto; (iv) LeBoeuf, Lamb, Xxxxxx & XxxXxx
LLP, counsel to the Company, shall deliver to BNYCMI an opinion (relying for
matters of Idaho law on the opinion of Xx. Xxxxxx), dated the date of the
Closing and addressed to BNYCMI, substantially in the form of Exhibit C attached
hereto; (v) Xxxxxxxx & Xxxxxxxx LLP, counsel to BNYCMI, shall deliver such
opinion or opinions (relying for matters of Idaho law on the opinion of Xx.
Xxxxxx), dated as of the Closing, as BNYCMI may reasonably request; and (vi)
Deloitte & Touche LLP, independent registered public accounting firm for the
Company, shall deliver to BNYCMI a letter, dated the Closing Date, in form and
substance reasonably satisfactory to BNYCMI.
Section 2.03 Mechanics of Issuances. (a) Issuance Notice. On any Trading
Day during the Commitment Period, the Company may deliver an Issuance Notice to
BNYCMI, subject to the satisfaction of the conditions set forth in Sections 5.01
and 5.02; provided, however, that (1) the Issuance Amount for each Issuance as
designated by the Company in the applicable Issuance Notice shall in no event
exceed 500,000 Common Shares without the prior written consent of BNYCMI, which
may be withheld in BNYCMI's sole discretion, and (2) notwithstanding anything in
this Agreement to the contrary, BNYCMI shall have no further obligations with
respect to any Issuance Notice if and to the extent the number of Issuance
Shares to be sold pursuant thereto, together with the aggregate number of Common
Shares previously sold under this Agreement, shall exceed the Maximum Program
Amount.
(b) Delivery of Issuance Notice. An Issuance Notice shall be deemed
delivered on the Trading Day that it is received by facsimile or otherwise (and
the Company confirms such delivery by e-mail notice or by telephone (including
voicemail message)) by BNYCMI. No Issuance Notice may be delivered other than on
a Trading Day during the Commitment Period.
(c) Floor Price. BNYCMI shall not sell Common Shares below the Floor
Price during any Selling Period, and such Floor Price may be adjusted by the
Company at any time during any Selling Period upon notice to BNYCMI and
confirmation to the Company.
(d) Determination of Issuance Shares to be Sold. The number of Issuance
Shares to be sold by BNYCMI with respect to any Issuance shall be the Actual
Sold Amount during the Selling Period.
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(e) Trading Guidelines. BNYCMI may, to the extent permitted under the
Securities Act and the Exchange Act, purchase and sell Common Stock for its own
account while this Agreement is in effect provided that (i) no such purchase or
sale shall take place while an Issuance Notice is in effect, (ii) in no
circumstances shall BNYCMI have a short position in the Common Stock for its own
account and (iii) the Company shall not be deemed to have authorized or
consented to any such purchases or sales by BNYCMI. In addition, the Company
hereby acknowledges and agrees that BNYCMI's affiliates, subject to compliance
with Regulation M under the Exchange Act, may make markets in the Common Stock
or other securities of the Company, in connection with which they may buy and
sell, as agent or principal, for long or short account, shares of Common Stock
or other securities of the Company, at the same time BNYCMI is acting as agent
pursuant to this Agreement.
Section 2.04 Use of Free Writing Prospectus. Neither the Company nor
BNYCMI has prepared, used, referred to or distributed, or will prepare, use,
refer to or distribute without the other party's prior written consent, any
"written communication" which constitutes a "free writing prospectus" as such
terms are defined in Rule 405 under the Securities Act.
Section 2.05 Settlements. Subject to the provisions of Article V, on or
before each Settlement Date, the Company will cause Xxxxx Fargo Bank, National
Association, its transfer agent, to electronically transfer the Issuance Shares
being sold by crediting BNYCMI or its designee's account at The Depository Trust
Company through its Deposit/Withdrawal at Custodian System, or by such other
means of delivery as may be mutually agreed upon by the parties hereto, and
concurrently with the receipt of such Issuance Shares, which in all cases shall
be freely tradable, transferable, registered shares in good deliverable form,
BNYCMI will deliver the related Issuance Price in same day funds to an account
designated by the Company. If the Company defaults in its obligation to deliver
Issuance Shares on a Settlement Date, the Company agrees that it will (i) hold
BNYCMI harmless against any loss, claim, damage or expense (including, without
limitation, penalties, interest and reasonable legal fees and expenses), as
incurred, arising out of or in connection with such default by the Company, and
(ii) pay to BNYCMI any Selling Commission to which it would otherwise have been
entitled absent such default. The individuals listed on Schedule 1 hereto shall
be the contact persons for all matters related to the settlement of the transfer
of Issuance Shares through the Deposit/Withdrawal at Custodian System for
purposes of this Section 2.05.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to, and agrees with, BNYCMI that as
of the Closing Date, as of each Issuance Date, as of each Settlement Date and as
of any time that the Registration Statement or the Prospectus shall be amended
or supplemented (each of the times referenced above is referred to herein as a
"Representation Date"), except as may be disclosed in the Prospectus on or
before a Representation Date:
Section 3.01 Registration. The Common Stock is registered pursuant to
Section 12(b) of the Exchange Act and is currently listed and quoted on the
Principal Market under the trading symbol "XXX", and the Common Shares have been
listed on the Principal Market, subject to notice of issuance. The Company (i)
meets the requirements for use of Form S-3 under the
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Securities Act and the rules and regulations thereunder for the registration of
the transactions contemplated by this Agreement and (ii) has been subject to the
requirements of Section 12 of the Exchange Act and has timely filed all the
material required to be filed pursuant to Sections 13 and 14 of the Exchange Act
for a period of more than 12 calendar months. The Company has filed with the
Commission a registration statement on Form S-3 (Registration No. 333-83434)
which registration statement has been declared effective by the Commission for
the registration of up to $500,000,000 aggregate amount of Common Shares and
other securities under the Securities Act (of which $120,750,000 has been issued
and sold prior to the date of this Agreement), and the offering thereof from
time to time pursuant to Rule 415 promulgated by the Commission under the
Securities Act. Such registration statement, and the prospectus constituting a
part of such registration statement, together with the Prospectus Supplement (as
defined in Section 5.01(k)) and any pricing supplement relating to a particular
issuance of the Issuance Shares (each, an "Issuance Supplement"), including all
documents incorporated or deemed to be incorporated therein by reference
pursuant to Item 12 of Form S-3 under the Securities Act, in each case as from
time to time amended or supplemented, are referred to herein as the
"Registration Statement" and the "Prospectus," respectively, except that if any
revised prospectus is provided to BNYCMI by the Company for use in connection
with the offering of the Common Shares that is not required to be filed by the
Company pursuant to Rule 424(b) promulgated by the Commission under the
Securities Act, the term "Prospectus" shall refer to such revised prospectus
from and after the time it is first provided to BNYCMI for such use. Promptly
after the execution and delivery of this Agreement, the Company will prepare and
file the Prospectus Supplement relating to the Issuance Shares pursuant to Rule
424(b) promulgated by the Commission under the Securities Act, as contemplated
by Section 5.01(k) of this Agreement. As used in this Agreement, the terms
"amendment" or "supplement" when applied to the Registration Statement or the
Prospectus shall be deemed to include the filing by the Company with the
Commission of any document under the Exchange Act after the date hereof that is
or is deemed to be incorporated therein by reference.
Section 3.02 Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement and the
Prospectus pursuant to Item 12 of Form S-3 (collectively, the "Incorporated
Documents"), as of the date filed with the Commission under the Exchange Act,
conformed and will conform in all material respects to the requirements of the
Exchange Act and the rules and regulations of the Commission promulgated
thereunder, and none of such documents contained or will contain at such time an
untrue statement of a material fact or omitted or will omit to state a material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
Section 3.03 The Registration Statement. No stop order suspending the
effectiveness of the Registration Statement has been issued and no proceeding
for that purpose has been initiated or threatened by the Commission. The
Registration Statement, as of the Effective Date, conformed or will conform in
all material respects to the requirements of the Securities Act, and the rules
and regulations of the Commission promulgated thereunder and, as of the
Effective Date, does 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, and the Prospectus, as of its
original issue date, as of the date of any filing of an Issuance Supplement
thereto pursuant to Rule 424(b) promulgated by the Commission under the
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Securities Act and as of the date of any other amendment or supplement thereto,
conforms or will conform in all material respects to the requirements of the
Securities Act and the rules and regulations of the Commission promulgated
thereunder and, as of such respective dates, does not and will not contain an
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company by BNYCMI
expressly for use in the Prospectus. As used herein, with respect to the
Registration Statement, the term "Effective Date" means, as of a specified time,
the later of (i) the date that the Registration Statement or the most recent
post-effective amendment thereto was or is declared effective by the Commission
under the Securities Act and (ii) the date that the Company's Annual Report on
Form 10-K for its most recently completed fiscal year is filed with the
Commission under the Exchange Act.
Section 3.04 Changes. Since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus there has
been no material adverse change in the condition (financial or otherwise),
earnings, business or properties of the Company and its subsidiaries considered
as a whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated by the Prospectus.
Section 3.05 Organizational Matters. The Company has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of the State of Idaho, with corporate power and authority to own or lease
its properties and conduct its business in all material respects as described in
the Registration Statement and the Prospectus; the Company is duly qualified to
transact business and is in good standing in each jurisdiction in which the
failure to so qualify would have a Material Adverse Effect. Each Material
Subsidiary of the Company has been duly incorporated and is validly existing as
a corporation or limited liability company, as applicable, and to the extent
such concept is applicable, is in good standing under the laws of its
jurisdiction of incorporation. As used in this Agreement, the term "Subsidiary"
means any Person (other than a natural person), at least a majority of the
outstanding Voting Stock of which is owned by the Company, by one or more
Subsidiaries or by the Company and one or more Subsidiaries. As of the date of
this Agreement, the only Material Subsidiaries of the Company are Idaho Power
Company and IDACORP Financial Services, Inc. (each, a "Material Subsidiary").
Section 3.06 Authorization; Enforceability. The Company has duly
authorized, executed and delivered this Agreement. This Agreement constitutes
the valid and binding obligation of the Company, enforceable against the Company
in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law) and by limitations imposed by law and public
policy on indemnification or exculpation.
Section 3.07 Capitalization. The Company has an authorized
capitalization as set forth in the Prospectus, and all of the outstanding
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shares of Common Stock of the Company have been duly authorized and validly
issued and are fully paid and non-assessable; none of the outstanding shares of
Common Stock of the Company was issued in violation of the preemptive or other
similar rights of any security holder of the Company; all of the outstanding
shares of capital stock of each Material Subsidiary have been duly authorized
and validly issued and are fully paid and non-assessable. The Common Shares have
been duly authorized by all necessary corporate action on the part of the
Company and, when issued and delivered against payment therefor as provided in
this Agreement, the Common Shares will be validly issued, fully paid and
nonassessable, will not be subject to any preemptive or similar rights and will
be free and clear of all claims, liens, charges, encumbrances and security
interests of any nature whatsoever. The Common Shares conform to the description
contained in the Prospectus under the caption "Description of Common Stock."
Except as set forth in the Prospectus, there are no outstanding options,
warrants, conversion rights, subscription rights, preemptive rights, rights of
first refusal or other rights or agreements of any nature outstanding to
subscribe for or to purchase any shares of Common Stock of the Company or any
other securities of the Company of any kind binding on the Company (except
pursuant to dividend reinvestment, stock purchase or ownership, stock option,
director or employee benefit plans ) and there are no outstanding securities or
instruments of the Company containing anti-dilution or similar provisions that
will be triggered by the issuance of the Common Shares as described in this
Agreement. There are no restrictions upon the voting or transfer of any shares
of the Company's Common Stock pursuant to the Company's Articles of
Incorporation or bylaws. There are no agreements or other obligations
(contingent or otherwise) that may require the Company to repurchase or
otherwise acquire any shares of its Common Stock. No Person has the right,
contractual or otherwise, to cause the Company to issue to it, or to register
pursuant to the Securities Act, any shares of capital stock or other securities
of the Company upon the filing of the Registration Statement or the issuance or
sale of the Common Shares hereunder.
Section 3.08 No Conflicts. The execution and delivery by the Company of,
and the performance by the Company of its obligations under, this Agreement will
not (a) conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or result in the imposition of a
lien or security interest upon any property or assets used in the conduct of the
business of the Company or any Material Subsidiary pursuant to, any material
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any Material Subsidiary is a party or by
which the Company or any Material Subsidiary is bound or to which any of the
property or assets used in the conduct of the business of the Company or any
Material Subsidiary is subject, (b) result in any violation of the provisions of
the certificate of incorporation or the by-laws of the Company or the
organizational documents of any Material Subsidiary, or (c) result in any
violation of any applicable statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the Company or any
Material Subsidiary or any of their properties (except in each case for
conflicts, breaches, violations, defaults, liens or security interests that
would not have a Material Adverse Effect). No consent, approval, authorization,
order, registration or qualification of or with any court or governmental agency
or body is required for the performance by the Company of its obligations under
this Agreement, except such as have been, or will have been prior to the Closing
Date, obtained under the Securities Act, and 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.
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Section 3.09 Legal Proceedings. Other than as set forth in the
Prospectus, there are no legal or governmental proceedings pending to which the
Company or any of its Subsidiaries is a party or of which any property of the
Company or any of its Subsidiaries is the subject which, if determined adversely
to the Company or any of its Subsidiaries, would individually or in the
aggregate have a Material Adverse Effect and, to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by governmental
authorities or threatened by others.
Section 3.10 Sale of Common Shares. Immediately after any sale of Common
Shares by the Company hereunder, the aggregate amount of Common Stock that has
been issued and sold by the Company hereunder will not exceed the aggregate
amount of Common Stock registered under the Registration Statement (in this
regard, the Company acknowledges and agrees that BNYCMI shall have no
responsibility for maintaining records with respect to the aggregate amount of
Common Shares sold, or of otherwise monitoring the availability of Common Stock
for sale, under the Registration Statement).
Section 3.11 Permits. Each of the Company and the Material Subsidiaries
has such permits, licenses, franchises and authorizations of governmental or
regulatory authorities (the "permits") as are necessary to conduct its business
in the manner described in the Prospectus, except where the failure to obtain
such permits would not reasonably be expected to have a Material Adverse Effect;
and to the best knowledge of the Company after due inquiry, each of the Company
and the Material Subsidiaries are in compliance with all terms and conditions of
any such permit, except where the failure to comply with the terms and
conditions of such permits would not reasonably be expected to have a Material
Adverse Effect.
Section 3.12 Investment Company. The Company is not, and after giving
effect to the offering and sale of the Common Shares, will not be, an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended (the "1940 Act").
Section 3.13 Financial Condition; No Adverse Changes. (a) The financial
statements, together with related schedules and notes, included or incorporated
by reference in the Registration Statement and the Prospectus, present fairly
the consolidated financial position, results of operations and changes in
financial position of the Company and the Subsidiaries on the basis stated
therein at the respective dates or for the respective periods to which they
apply; such statements and related schedules and notes have been prepared in
accordance with generally accepted accounting principles consistently applied
throughout the periods involved, subject to normal year-end adjustments, except
as disclosed therein; and the other financial and statistical information and
data included or incorporated by reference in the Registration Statement and the
Prospectus are accurately presented and prepared on a basis consistent with such
financial statements and the books and records of the Company and the
Subsidiaries. No other financial statements are required to be set forth or to
be incorporated by reference in the Registration Statement or the Prospectus
under the Securities Act.
(b) The Company and its Subsidiaries maintain systems of internal
control over financial reporting (as such term is defined in Rule 13a-15(f) of
the Exchange Act). The Company's internal control over financial reporting was
effective as of December 31, 2004, and the Company is not aware of any material
weaknesses therein. Since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus, there has
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been no change that has materially adversely affected, or is reasonably likely
to materially adversely affect, the Company's internal control over financial
reporting.
(c) The accountants who have audited the financial statements of the
Company that are incorporated by reference in the Registration Statement and the
Prospectus are independent registered public accountants as required by the
Securities Act and the rules and regulations of the Commission promulgated
thereunder.
(d) The Company maintains disclosure controls and procedures (as such
term is defined in Rule 13a-15(e) of the Exchange Act) that were effective as of
September 30, 2005.
Section 3.14 Use of Proceeds. The Company will use the net proceeds from
the offering of Common Shares in the manner specified in the Prospectus under
"Use of Proceeds."
Section 3.15 Environmental Matters. Other than as set forth in the
Prospectus, (a) the Company and its Subsidiaries are in compliance in all
material respects with all applicable state and federal environmental laws,
except for instances of noncompliance that, individually or in the aggregate,
would not have a Material Adverse Effect, and (b) no event or condition has
occurred that is reasonably likely to interfere in any material respect with the
compliance by the Company and its Subsidiaries with any environmental law or
that is reasonably likely to give rise to any liability under any environmental
law, in each case that, individually or in the aggregate, would have a Material
Adverse Effect.
Section 3.16 Public Utility Holding Company Act of 1935. The Company is
exempt from the provisions of the Public Utility Holding Company Act of 1935, as
amended (repealed, effective February 8, 2006), applicable to it as a holding
company except Section 9(a)(2) thereof and is exempt therefrom with respect to
the issuance and sale of the Common Shares.
Section 3.17 Insurance. Each of the Company and its Subsidiaries is
insured by insurers of recognized financial responsibility against such losses
and risks and in such amounts as management of the Company believes to be
prudent.
Section 3.18 Officer's Certificate. Any certificate signed by the Chief
Executive Officer, the President, the Executive Vice President, any Senior Vice
President, or the Chief Financial Officer of the Company and delivered to BNYCMI
or to counsel for BNYCMI in connection with an Issuance shall be deemed a
representation and warranty by the Company to BNYCMI as to the matters covered
thereby on the date of such certificate.
Section 3.19 Finder's Fees. The Company has not incurred (directly or
indirectly) nor will it incur, directly or indirectly, any liability for any
broker's, finder's, financial advisor's or other similar fee, charge or
commission in connection with this Agreement or the transactions contemplated
hereby.
ARTICLE IV
COVENANTS
The Company covenants and agrees during the term of this Agreement with
BNYCMI as follows:
11
Section 4.01 Registration Statement and Prospectus. (i) To make no
amendment or supplement to the Registration Statement or the Prospectus (other
than (x) an amendment or supplement relating solely to the issuance or offering
of securities other than the Common Shares and (y) by means of an Annual Report
on Form 10-K, a Quarterly Report on Form 10-Q or a Current Report on Form 8-K
filed with the Commission under the Exchange Act and incorporated or deemed to
be incorporated by reference in the Registration Statement or the Prospectus)
after the date of delivery of an Issuance Notice and prior to the related
Settlement Date(s) that is reasonably disapproved by BNYCMI promptly after
reasonable notice thereof; (ii) to prepare, with respect to any Issuance Shares
to be sold pursuant to this Agreement, an Issuance Supplement with respect to
such Common Shares in a form previously approved by BNYCMI and to file such
Issuance Supplement pursuant to Rule 424(b) promulgated by the Commission under
the Securities Act within the time period required thereby, only if delivery and
filing of such an Issuance Supplement is required by applicable law or by the
rules and regulations of the Commission; (iii) to make no amendment or
supplement to the Registration Statement or the Prospectus (other than (x) an
amendment or supplement relating solely to the issuance or offering of
securities other than the Common Shares and (y) by means of an Annual Report on
Form 10-K, a Quarterly Report on Form 10-Q or a Current Report on Form 8-K filed
with the Commission under the Exchange Act and incorporated or deemed to be
incorporated by reference in the Registration Statement or the Prospectus) at
any time prior to having afforded BNYCMI a reasonable opportunity to review and
comment thereon; (iv) to file within the time periods required by the Exchange
Act all reports and any definitive proxy or information statements required to
be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act for so long as the delivery of a prospectus is
required under the Securities Act or under the blue sky or securities laws of
any jurisdiction in connection with the offering or sale of the Common Shares,
and during such same period to advise BNYCMI, promptly after the Company
receives notice thereof, 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 amended Prospectus has been filed with the Commission, of the
issuance by the Commission of any stop order or of any order preventing or
suspending the use of any prospectus relating to the Common Shares, of the
suspension of the qualification of the Common Shares for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such
purpose, of any request by the Commission for the amendment or supplement of the
Registration Statement or the Prospectus or for additional information relating
thereto, or the receipt of any comments from the Commission with respect to the
Registration Statement or the Prospectus (including, without limitation, any
Incorporated Documents); and (v) 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 reasonable
best efforts to obtain its withdrawal.
Section 4.02 Blue Sky. To use its reasonable best efforts to cause the
Common Shares to be listed on the Principal Market and promptly from time to
time to take such action as BNYCMI may reasonably request to cooperate with
BNYCMI in the qualification of the Common Shares for offering and sale under the
blue sky or securities laws of such jurisdictions within the United States of
America and its territories as BNYCMI may reasonably request and to use its
reasonable best efforts to comply with such laws so as to permit the continuance
of sales and dealings therein for as long as may be necessary to complete the
sale of the Common Shares; provided, however, that in connection therewith the
Company shall not be required to
12
qualify as a foreign corporation, to file a general consent to service of
process or to subject itself to taxation in respect of doing business in any
jurisdiction.
Section 4.03 Copies of Registration Statement and Prospectus. To furnish
BNYCMI with copies (which may be electronic copies) of the Registration
Statement and each amendment thereto, and with copies of the Prospectus and each
amendment or supplement thereto in the form in which it is filed with the
Commission pursuant to the Securities Act or Rule 424(b) promulgated by the
Commission under the Securities Act, both in such quantities as BNYCMI may
reasonably request from time to time; and, if the delivery of a prospectus is
required under the Securities Act or under the blue sky or securities laws of
any jurisdiction at any time on or prior to the applicable Settlement Date for
any Selling Period in connection with the offering or sale of the Common Shares
and if at such time any event has occurred as a result of which the Prospectus
would include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made when such Prospectus is delivered,
not misleading, or, if for any other reason it is necessary during such same
period to amend or supplement the Prospectus or to file under the Exchange Act
any document incorporated by reference in the Prospectus in order to comply with
the Securities Act or the Exchange Act, to notify BNYCMI and request BNYCMI to
suspend offers to sell Common Shares (and, if so notified, BNYCMI shall cease
such offers as soon as practicable); and if the Company decides to amend or
supplement the Registration Statement or the Prospectus, to advise BNYCMI
promptly by telephone (with confirmation in writing) and to prepare and cause to
be filed promptly with the Commission an amendment or supplement to the
Registration Statement or the Prospectus that will correct such statement or
omission or effect such compliance; provided, however, that if during such same
period BNYCMI is required to deliver a prospectus in respect of transactions in
the Common Shares, the Company shall promptly prepare and file with the
Commission such an amendment or supplement.
Section 4.04 Rule 158. To make generally available to its holders of the
Common Shares as soon as practicable, but in any event not later than eighteen
months after the effective date of the Registration Statement (as defined in
Rule 158(c) promulgated by the Commission under the Securities Act), an earnings
statement of the Company and the Subsidiaries (which need not be audited)
complying with Section 11(a) of the Securities Act and the rules and regulations
of the Commission promulgated thereunder (including the option of the Company to
file periodic reports in order to make generally available such earnings
statement, to the extent that it is required to file such reports under Section
13 or Section 15(d) of the Exchange Act, pursuant to Rule 158 promulgated by the
Commission under the Securities Act).
Section 4.05 Information. Except where such reports, communications,
financial statements or other information are available on the Commission's
XXXXX system, to furnish to BNYCMI (in paper or electronic format) copies of all
publicly available reports or other communications (financial or other)
furnished generally to stockholders and filed with the Commission pursuant to
the Exchange Act, and deliver to BNYCMI (in paper or electronic format) (i)
promptly after they are available, copies of any publicly available reports and
financial statements furnished to or filed with the Commission or any national
securities exchange on which any class of securities of the Company is listed;
and (ii) such additional publicly available information concerning the business
and financial condition of the Company as BNYCMI may from time to time
reasonably request (such financial statements to be on a
13
consolidated basis to the extent the accounts of the Company and its
Subsidiaries are consolidated in reports furnished to its stockholders generally
or to the Commission).
Section 4.06 Representations and Warranties. That each delivery of an
Issuance Notice and each delivery of Common Shares on a Settlement Date shall be
deemed to be (i) an affirmation to BNYCMI that the representations and
warranties of the Company contained in or made pursuant to this Agreement are
true and correct in all material respects as of the date of such Issuance Notice
or of such Settlement Date, as the case may be, as though made at and as of each
such date, except as may be disclosed in the Prospectus or otherwise in writing
by the Company to BNYCMI on or before such date of delivery or Settlement Date,
as the case may be, and (ii) an undertaking that the Company will advise BNYCMI
if any of such representations and warranties will not be true and correct in
all material respects as of the Settlement Date for the Common Shares relating
to such Issuance Notice, as though made at and as of each such date (except that
such representations and warranties shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented relating
to such Common Shares).
Section 4.07 Opinions of Counsel. That each time the Registration
Statement or the Prospectus is amended or supplemented (other than (x) an
amendment or supplement relating solely to the issuance or offering of
securities other than the Common Shares and (y) by an Issuance Supplement or a
Current Report on Form 8-K, unless reasonably requested by BNYCMI within 30 days
of the filing thereof with the Commission), including by means of an Annual
Report on Form 10-K or a Quarterly Report on Form 10-Q filed with the Commission
under the Exchange Act and incorporated or deemed to be incorporated by
reference into the Prospectus, the Company shall as soon as practicable
thereafter furnish or cause to be furnished forthwith to BNYCMI written opinions
of Xxxxxx X. Xxxxxx, Esq., Senior Vice President, General Counsel and Secretary
of the Company, and LeBoeuf, Lamb, Xxxxxx & XxxXxx LLP, counsel for the Company,
dated the date of such amendment, supplement or incorporation and in form
reasonably satisfactory to BNYCMI, (i) if such counsel has previously furnished
an opinion to the effect set forth in either Exhibit B or Exhibit C hereto
respectively, to the effect that BNYCMI may rely on such previously furnished
opinions of such counsel to the same extent as though it were dated the date of
such letter authorizing reliance (except that the statements in such last
opinions shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such date) or (ii) if such counsel has
not previously furnished an opinion to the effect set forth in either Exhibit B
or Exhibit C hereto respectively, of the same tenor as such an opinion of such
counsel but modified to relate to the Registration Statement and the Prospectus
as amended and supplemented to such date.
Section 4.08 Comfort Letters. That each time the Registration Statement
or the Prospectus is amended or supplemented, including by means of an Annual
Report on Form 10-K, a Quarterly Report on Form 10-Q or a Current Report on Form
8-K (but only a Current Report on Form 8-K that contains financial statements of
the Company filed with the Commission under the Exchange Act and incorporated or
deemed to be incorporated by reference into the Prospectus), in any case to set
forth financial information included in or derived from the Company's
consolidated financial statements or accounting records, the Company shall as
soon as practicable thereafter cause the independent registered public
accounting firm that has audited the consolidated financial statements of the
Company included or incorporated by reference in the Registration Statement
forthwith to furnish to BNYCMI a letter, dated five (5) Trading Days
14
after the date of effectiveness of such amendment or the date of filing of such
supplement, as the case may be, in form reasonably satisfactory to BNYCMI, of
the same tenor as the letter referred to in Section 5.01(g) hereof but modified
to relate to the Registration Statement and the Prospectus as amended or
supplemented to the date of such letter, with such changes as may be necessary
to reflect changes in the financial statements and other information derived
from the accounting records of the Company, to the extent such financial
statements and other information are available as of a date not more than five
business days prior to the date of such letter; provided, however, that, with
respect to any financial information or other matters, such letter may reconfirm
as true and correct at such date as though made at and as of such date, rather
than repeat, statements with respect to such financial information or other
matters made in the letter referred to in Section 5.01(g) hereof that was last
furnished to BNYCMI.
Section 4.09 Officer's Certificate. That each time the Registration
Statement or the Prospectus is amended or supplemented (other than (x) an
amendment or supplement relating solely to the issuance or offering of
securities other than the Common Shares and (y) by an Issuance Supplement or a
Current Report on Form 8-K, unless reasonably requested by BNYCMI within 30 days
of the filing thereof with the Commission), including by means of an Annual
Report on Form 10-K or a Quarterly Report on Form 10-Q filed with the Commission
under the Exchange Act and incorporated or deemed to be incorporated by
reference into the Prospectus, the Company shall as soon as practicable
thereafter furnish or cause to be furnished forthwith to BNYCMI a certificate,
dated the date of such supplement, amendment or incorporation relating to such
sale, as the case may be, in such form and executed by such officers of the
Company as is reasonably satisfactory to BNYCMI, of the same tenor as the
certificate referred to in Section 2.02(ii) but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented to such
date.
Section 4.10 Stand Off Agreement. Without the written consent of BNYCMI,
the Company will not, directly or indirectly, offer to sell, sell, contract to
sell, grant any option to sell or otherwise dispose of any shares of Common
Stock or securities convertible into or exchangeable for Common Stock (other
than Common Shares hereunder), warrants or any rights to purchase or acquire,
Common Stock during the period beginning on the first (1st) Trading Day
immediately prior to the date on which any Issuance Notice is delivered to
BNYCMI hereunder and ending on the first (1st) Trading Day immediately following
the last Settlement Date with respect to Common Shares sold pursuant to such
Issuance Notice; provided, however, that such restriction will not be required
in connection with the Company's issuance or sale of (i) Common Stock, options
to purchase shares of Common Stock or Common Stock issuable upon the exercise of
options pursuant to any employee or director stock option or benefit plan, stock
purchase or ownership plan or dividend reinvestment plan (but not shares subject
to a waiver to exceed plan limits in a stock purchase plan) of the Company, (ii)
Common Stock issuable upon conversion of securities or the exercise of warrants,
options or other rights disclosed in the Company's Commission filings and (iii)
Common Stock issuable as consideration in connection with acquisitions of
business, assets or securities of other Persons.
Section 4.11 Market Activities. The Company will not, directly or
indirectly, (i) take 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
15
facilitate the sale of the Common Shares or (ii) bid for or purchase the Common
Shares, or pay anyone any compensation for soliciting purchases of the Common
Shares other than BNYCMI.
ARTICLE V
CONDITIONS TO DELIVERY OF ISSUANCE
NOTICES AND TO SETTLEMENT
Section 5.01 Conditions Precedent to the Right of the Company to Deliver
an Issuance Notice and the Obligation of BNYCMI to Sell Common Shares During the
Selling Period(s). The right of the Company to deliver an Issuance Notice
hereunder is subject to the satisfaction, on the date of delivery of such
Issuance Notice, and the obligation of BNYCMI to sell Common Shares during the
applicable Selling Period(s) is subject to the satisfaction, on the applicable
Settlement Date(s), of each of the following conditions:
(a) Effective Registration Statement and Authorizations. The
Registration Statement shall remain effective; and (i) no stop order suspending
the effectiveness of the Registration Statement shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; (ii) no other suspension of the use or withdrawal of the
effectiveness of the Registration Statement or Prospectus shall exist; (iii) all
requests for additional information on the part of the Commission with respect
to the Registration Statement or the Prospectus shall have been complied with;
and (iv) no event specified in Section 4.03 hereof shall have occurred and be
continuing without the Company amending or supplementing the Registration
Statement or the Prospectus as provided in Section 4.03.
(b) Accuracy of the Company's Representations and Warranties. The
representations and warranties of the Company shall be true and correct in all
material respects as of each Representation Date as though made at such time,
except as may be disclosed in the Prospectus on or before the applicable
Representation Date.
(c) Performance by the Company. The Company shall have performed,
satisfied and complied with in all material respects all covenants, agreements
and conditions required by this Agreement to be performed, satisfied or complied
with by the Company at or prior to such date.
(d) No Injunction. No statute, rule, regulation, executive order,
decree, ruling or injunction shall have been enacted, entered, promulgated or
endorsed by any court or governmental authority of competent jurisdiction or any
self-regulatory organization having authority over the matters contemplated
hereby that prohibits or directly and materially adversely affects any of the
transactions contemplated by this Agreement, and no proceeding shall have been
commenced that may have the effect of prohibiting or materially adversely
affecting any of the transactions contemplated by this Agreement.
(e) Material Adverse Changes. Since the date of this Agreement, no event
that had or is reasonably likely to have a Material Adverse Effect shall have
occurred that has not been disclosed in the Registration Statement or the
Prospectus (including the documents incorporated by reference therein and any
supplements thereto).
(f) No Suspension of Trading In or Delisting of Common Stock; Other
Events. The trading of the Common Stock (including without limitation the
Issuance Shares) shall not have
16
been suspended by the Commission, the Principal Market or the National
Association of Securities Dealers, Inc. since the immediately preceding
Settlement Date or, if there has been no Settlement Date, the Closing Date, and
the Common Shares (including without limitation the Issuance Shares) shall have
been approved for listing or quotation on and shall not have been delisted from
the Principal Market. There shall not have occurred (and be continuing in the
case of occurrences under clause (i) and (ii) below) any of the following: (i)
if trading generally on the NYSE has been suspended or materially limited, or
minimum and maximum prices for trading have been fixed, or maximum ranges for
prices have been required, by the NYSE or by order of the Commission, the
National Association of Securities Dealers, Inc. or any other governmental
authority or a material disruption has occurred in commercial banking or
securities settlement or clearance services in the United States; (ii) a general
moratorium on commercial banking activities in New York declared by either
federal or New York state authorities; or (iii) any material adverse change in
the financial markets in the United States or in the international financial
markets, any outbreak or escalation of hostilities or other calamity or crisis
involving the United States or the declaration by the United States of a
national emergency or war or any change or development involving a prospective
change in national or international political, financial or economic conditions,
if the effect of any such event specified in this clause (iii) in the reasonable
judgment of BNYCMI makes it impractical or inadvisable to proceed with the sale
of Common Shares of the Company.
(g) Comfort Letter. On the Closing Date and on each applicable date
referred to in Section 4.08 hereof that is on or prior to such Issuance Date or
Settlement Date, as the case may be, the independent registered public
accounting firm who has audited the financial statements of the Company included
or incorporated by reference in the Registration Statement shall have furnished
to BNYCMI a letter, dated the Closing Date or such applicable date, as the case
may be, in form and substance satisfactory to BNYCMI to the effect required by
Section 4.08.
(h) No Defaults. The execution and delivery of this Agreement and the
issuance and sale of the Common Shares and the compliance by the Company with
all of the provisions of this Agreement will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, any material indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Company is a party or by which the
Company is bound or to which any of the property or assets of the Company is
subject.
(i) Trading Cushion. The Selling Period for any previous Issuance Notice
shall have expired.
(j) Maximum Issuance Amount. In no event may the Company issue an
Issuance Notice to sell an Issuance Amount to the extent that (I) the sum of (x)
the requested Issuance Amount plus (y) the number of Common Shares issued under
all previous Issuances effected pursuant to this Agreement would exceed the
Maximum Program Amount or (II) the requested Issuance Amount exceeds 500,000
Common Shares.
(k) Prospectus Supplement and Issuance Supplement. (i) A supplement to
the prospectus included in the Registration Statement (the "Prospectus
Supplement"), in form and substance to be agreed upon by the parties, setting
forth information regarding this Agreement including, without limitation, the
Maximum Program Amount, shall have been filed with the
17
Commission pursuant to Rule 424(b) promulgated by the Commission under the
Securities Act within the time period required thereby and sufficient copies
thereof delivered to BNYCMI on or prior to the Issuance Date.
(ii) If required by Section 4.01(ii), an Issuance Supplement, in form
and substance to be agreed upon by the parties, shall have been filed with the
Commission pursuant to Rule 424(b) promulgated by the Commission under the
Securities Act within the time period required thereby and sufficient copies
thereof delivered to BNYCMI on or prior to the Issuance Date.
(l) Counsel Letter. The counsel specified in Section 4.07, or other
counsel selected by the Company and reasonably satisfactory to BNYCMI, shall
have furnished to BNYCMI their written opinions, dated the Closing Date and each
applicable date referred to in Section 4.07 hereof that is on or prior to such
Issuance Date or Settlement Date, as the case may be, to the effect required by
Section 4.07.
(m) Officer's Certificate. The Company shall have furnished or caused to
be furnished to BNYCMI an officer's certificate executed by the Chief Executive
Officer, the President, the Executive Vice President, any Senior Vice President
or the Chief Financial Officer of the Company, dated the Closing Date and each
applicable date referred to in Section 4.09 hereof that is on or prior to such
Issuance Date or Settlement Date, as the case may be, as to the matters
specified in Section 2.02(ii).
(n) Other Documents. On the Closing Date and prior to each Issuance Date
and Settlement Date, BNYCMI and its counsel shall have been furnished with such
documents as they may reasonably require in order to evidence the accuracy and
completeness of any of the representations or warranties, or the fulfillment of
the conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Common Shares as herein
contemplated shall be satisfactory in form and substance to BNYCMI and its
counsel.
Section 5.02 Documents Required to be Delivered on each Issuance Date.
BNYCMI's obligation to sell Common Shares pursuant to an Issuance hereunder
shall additionally be conditioned upon the delivery to BNYCMI on or before the
Issuance Date of a certificate in form and substance reasonably satisfactory to
BNYCMI, executed by the Chief Executive Officer, the President, the Executive
Vice President, any Senior Vice President or the Chief Financial Officer of the
Company, to the effect that all conditions precedent to the delivery of such
Issuance Notice shall have been satisfied as at the date of such certificate
(which certificate shall not be required if the foregoing representations shall
be set forth in the Issuance Notice).
Section 5.03 Suspension of Sales. The Company or BNYCMI may, upon notice
to the other party in writing or by telephone (confirmed immediately by
verifiable facsimile transmission), suspend any sale of Issuance Shares, and the
Selling Period shall immediately terminate; provided, however, that such
suspension and termination shall not affect or impair either party's obligations
with respect to any Issuance Shares sold hereunder prior to the receipt of such
notice. The Company agrees that no such notice shall be effective against BNYCMI
unless it is made to one of the individuals named on Schedule 2 hereto, as such
Schedule may be amended from time to time. BNYCMI agrees that no such notice
shall be effective against the
18
Company unless it is made to one of the individuals named on Schedule 2 hereto,
as such Schedule may be amended from time to time.
ARTICLE VI
INDEMNIFICATION AND CONTRIBUTION
Section 6.01 Indemnification by the Company. The Company agrees to
indemnify and hold harmless BNYCMI, its officers, directors, employees and
agents, and each Person, if any, who controls BNYCMI within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, together
with each such Person's respective officers, directors, employees and agents
(collectively, the "Controlling Persons"), from and against any and all losses,
claims, damages or liabilities, and any action or proceeding in respect thereof,
to which BNYCMI, its officers, directors, employees and agents, and any such
Controlling Person may become subject under the Securities Act, the Exchange Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
or proceedings in respect thereof) arise out of, or are based upon,(a) any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, the Prospectus or any other prospectus relating to the
Common Shares, or any amendment or supplement thereto, or arise out of, or are
based upon, any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein (in
the case of the Prospectus or any amendment or supplement thereto, in light of
the circumstances in which they were made) not misleading, except insofar as the
same are made in reliance upon and in conformity with information related to
BNYCMI or its plan of distribution furnished in writing to the Company by BNYCMI
expressly for use therein or (b) any breach or violation of Section 2.04 hereof,
and the Company shall reimburse BNYCMI, its officers, directors, employees and
agents, and each Controlling Person for any reasonable legal and other expenses
incurred thereby in investigating or defending or preparing to defend against
any such losses, claims, damages or liabilities, or actions or proceedings in
respect thereof, as such expenses are incurred.
Section 6.02 Indemnification by BNYCMI. BNYCMI agrees to indemnify and
hold harmless the Company, its officers, directors, employees and agents and
each Person, if any, who controls the Company within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act, together with each such
Person's respective officers, directors, employees and agents, from and against
any losses, claims, damages or liabilities, and any action or proceeding in
respect thereof, to which the Company, its officers, directors, employees or
agents, any such controlling Person and any officer, director, employee or agent
of such controlling Person may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as losses, claims, damages or liabilities (or
action or proceeding in respect thereof) arise out of, or are based upon, (a)
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement, the Prospectus or any other prospectus relating to
the Common Shares, or any amendment or supplement thereto, or arise out of, or
are based upon, any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
(in the case of the Prospectus or any other prospectus relating to the Common
Shares, or any amendment or supplement thereto, in light of the circumstances in
which they were made) not misleading in each case to the extent, but only to the
extent that such untrue statement or alleged untrue statement or omission or
alleged omission was made therein in reliance upon and in conformity with
written information related to
19
BNYCMI or its plan of distribution furnished to the Company by BNYCMI expressly
for use therein or (b) any breach or violation of Section 2.04 hereof and BNYCMI
shall reimburse the Company, its officers, directors, employees and agents, and
any such Controlling Person and any officer, director, employee or agent of such
Controlling Person for any reasonable legal and other expenses incurred thereby
in investigating or defending or preparing to defend against any such losses,
claims, damages or liabilities, or actions or proceedings in respect thereof, as
such expenses are incurred.
Section 6.03 Conduct of Indemnification Proceedings. Promptly after
receipt by any Person (an "Indemnified Party") of notice of any claim or the
commencement of any action in respect of which indemnity may be sought pursuant
to Section 6.01 or 6.02, the Indemnified Party shall, if a claim in respect
thereof is to be made against the Person against whom such indemnity may be
sought (an "Indemnifying Party"), notify the Indemnifying Party in writing of
the claim or the commencement of such action. In the event an Indemnified Party
shall fail to give such notice as provided in this Section 6.03 and the
Indemnifying Party to whom notice was not given was unaware of the proceeding to
which such notice would have related and was materially prejudiced by the
failure to give such notice, the indemnification provided for in Sections 6.01
or 6.02 shall be reduced to the extent of any actual prejudice resulting from
such failure to so notify the Indemnifying Party; provided, that the failure to
notify the Indemnifying Party shall not relieve it from any liability that it
may have to an Indemnified Party otherwise than under Section 6.01 or 6.02. If
any such claim or action shall be brought against an Indemnified Party, the
Indemnifying Party shall be entitled to participate therein, and, to the extent
that it wishes, jointly with any other similarly notified Indemnifying Party, to
assume the defense thereof with counsel reasonably satisfactory to the
Indemnified Party. After notice from the Indemnifying Party to the Indemnified
Party of its election to assume the defense of such claim or action, the
Indemnifying Party shall not be liable to the Indemnified Party for any legal or
other expenses subsequently incurred by the Indemnified Party in connection with
the defense thereof other than reasonable costs of investigation; provided that
the Indemnified Party shall have the right to employ separate counsel to
represent the Indemnified Party, but the fees and expenses of such counsel shall
be for the account of such Indemnified Party unless (i) the Indemnifying Party
and the Indemnified Party shall have mutually agreed to the retention of such
counsel or (ii) such Indemnified Party reasonably concludes that representation
of both parties by the same counsel would be inappropriate due to actual or
potential conflicts of interest with the Company, it being understood, however,
that the Indemnifying Party shall not, in connection with any one such claim or
action or separate but substantially similar or related claims or actions in the
same jurisdiction arising out of the same general allegations or circumstances,
be liable for the fees and expenses of more than one separate firm of attorneys
(together with appropriate local counsel) at any time for all Indemnified
Parties or for fees and expenses that are not reasonable. No Indemnifying Party
shall, without the prior written consent of the Indemnified Party, effect any
settlement of any claim or pending or threatened proceeding in respect of which
the Indemnified Party is or could have been a party and indemnification could
have been sought hereunder by such Indemnified Party unless such settlement
includes an unconditional release of each such Indemnified Party from all
losses, claims, damages or liabilities arising out of such claim or proceeding
and such settlement does not admit or constitute an admission of fault, guilt,
failure to act or culpability on the part of any such Indemnified Party. Whether
or not the defense of any claim or action is assumed by an Indemnifying Party,
such Indemnifying Party will not be subject to any liability for any
20
settlement made without its prior written consent, which consent will not be
unreasonably withheld.
Section 6.04 Contribution. If for any reason the indemnification
provided for in this Article VI is unavailable to the Indemnified Parties in
respect of any losses, claims, damages or liabilities referred to herein, then
each Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such losses, claims, damages or liabilities as between the Company, on the
one hand, and BNYCMI, on the other hand, in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and BNYCMI
on the other hand from the offering of the Common Shares to which such losses,
claims, damages or liabilities relate. If, however, the allocation provided by
the immediately preceding sentence is not permitted by applicable law, then each
Indemnifying Party shall contribute to such amount paid or payable by such
Indemnifying Party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company and of BNYCMI in
connection with such statements or omissions, as well as any other relevant
equitable considerations. The relative benefits received by the Company, on the
one hand, and by BNYCMI, on the other, shall be deemed to be in the same
proportion as the total net proceeds from the sale of Common Shares (before
deducting expenses) received by the Company bear to the total commissions
received by BNYCMI in respect thereof. The relative fault of the Company, on the
one hand, and of BNYCMI, on the other hand, 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 on one hand or by BNYCMI on the other hand,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and BNYCMI agree that it would not be just and equitable if
contribution pursuant to this Section 6.04 were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an Indemnified Party as a result of the losses,
claims, damages or liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any reasonable legal or other expenses reasonably incurred by such
Indemnified Party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 6.04, BNYCMI shall in
no event be required to contribute any amount in excess of the commissions
received by it under this Agreement. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 6.04 each officer,
director, employee and agent of BNYCMI, and each Controlling Person, shall have
the same rights to contribution as BNYCMI, and each director of the Company,
each officer of the Company who signed the Registration Statement, and each
Person, if any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act shall have the same rights to
contribution as the Company. The obligations of the Company and BNYCMI under
this Article VI shall be in addition to any liability that the Company and
BNYCMI may otherwise have.
21
ARTICLE VII
TERMINATION
Section 7.01 Term. Subject to the provisions of this Article VII, the
term of this Agreement shall run until the end of the Commitment Period.
Section 7.02 Termination by BNYCMI.
(a) BNYCMI may terminate the right of the Company to effect any
Issuances under this Agreement upon one (1) Trading Day's notice if any of the
following events shall occur:
(i) The Company or any Material Subsidiary shall make an assignment
for the benefit of creditors, or apply for or consent to the appointment
of a receiver or trustee for it or for all or substantially all of its
property or business; or such a receiver or trustee shall otherwise be
appointed;
(ii) Bankruptcy, insolvency, reorganization or liquidation
proceedings or other proceedings for relief under any bankruptcy law or
any law for the relief of debtors shall be instituted by or against the
Company or any of its Material Subsidiaries;
(iii) The Company shall fail to maintain the listing of the Common
Stock on the Principal Market; or
(iv) Since the Effective Date, there shall have occurred any event,
development or state of circumstances or facts that has had or would
reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect.
(b) BNYCMI shall have the right, by giving ten (10) days' notice as
hereinafter specified, to terminate this Agreement, in BNYCMI's sole discretion,
at any time.
Section 7.03 Termination by the Company. The Company shall have the
right, by giving ten (10) days' notice as hereinafter specified, to terminate
this Agreement in the Company's sole discretion at any time. After delivery of
such notice, the Company shall no longer have any right to deliver any Issuance
Notices hereunder.
Section 7.04 Liability; Provisions that Survive Termination. If this
Agreement is terminated pursuant to this Article VII, such termination shall be
without liability of any party to any other party except as provided in Section
9.02 and for the Company's obligations in respect of all prior Issuance Notices,
and provided further that in any case the provisions of Article VI, Article VIII
and Article IX shall survive termination of this Agreement without limitation.
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES TO SURVIVE DELIVERY
All representations and warranties of the Company herein or in
certificates delivered pursuant hereto shall remain operative and in full force
and effect regardless of (i) any investigation made by or on behalf of BNYCMI
and its officers, directors, employees and agents
22
and any Controlling Persons, (ii) delivery and acceptance of the Common Shares
and payment therefor or (iii) any termination of this Agreement.
ARTICLE IX
MISCELLANEOUS
Section 9.01 Press Releases and Disclosure. No party hereto shall issue
any press release or like public statement (other than in the case of the
Company, any disclosure required in reports filed with the Commission pursuant
to the Exchange Act) related to this Agreement or any of the transactions
contemplated hereby not substantially similar to previously approved disclosure
without the prior written approval of the other party hereto, except as may be
necessary or appropriate in the opinion of the party seeking to make disclosure
to comply with the requirements of applicable law or stock exchange rules. If
any such press release or like public statement is so required, the party making
such disclosure shall consult with the other party prior to making such
disclosure, and the parties shall use all reasonable efforts, acting in good
faith, to agree upon a text for such disclosure that is reasonably satisfactory
to all parties.
Section 9.02 Expenses. The Company covenants and agrees with BNYCMI that
the Company shall pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the preparation, printing and filing of the Registration
Statement, the Prospectus and any Issuance Supplements and all other amendments
and supplements thereto and the mailing and delivering of copies thereof to
BNYCMI and the Principal Exchanges; (ii) BNYCMI's reasonable documented
out-of-pocket expenses, including the reasonable fees, disbursements and
expenses of counsel for BNYCMI up to $75,000 (including in connection with the
qualification of the Common Shares for offering and sale under state securities
laws as provided in Section 4.02 hereof and in connection with preparing any
blue sky survey) in connection with this Agreement and the Registration
Statement and ongoing services in connection with the transactions contemplated
hereunder; (iii) the cost (other than those expenses described in clause (ii)
above) of printing, preparing or reproducing this Agreement and any other
documents in connection with the offering, sale and delivery of the Common
Shares; (iv) all filing fees and expenses (other than those expenses described
in clause (ii) above) in connection with the qualification of the Common Shares
for offering and sale under state securities laws as provided in Section 4.02
hereof; (v) the cost of preparing the Common Shares; (vi) the fees and expenses
of any transfer agent of the Company; (vii) the cost of providing any CUSIP or
other identification numbers for the Common Shares; (viii) the fees and expenses
incurred in connection with the listing or qualification of the Common Shares on
the Principal Market and any filing fees incident to any required review by the
National Association of Securities Dealers, Inc. of the terms of the sale of the
Common Shares in connection with this Agreement and the Registration Statement
(including the reasonable fees, disbursements and expenses of counsel for
BNYCMI), and (ix) all other costs and expenses incident to the performance of
the Company's obligations hereunder that are not otherwise specifically provided
for in this Section.
Section 9.03 Notices. All notices, demands, requests, consents,
approvals or other communications required or permitted to be given hereunder or
that are given with respect to this Agreement shall be in writing and shall be
personally served or deposited in the mail, registered or certified, return
receipt requested, postage prepaid or delivered by reputable air courier service
23
with charges prepaid, or transmitted by hand delivery, telegram, telex or
facsimile, addressed as set forth below, or to such other address as such party
shall have specified most recently by written notice: (i) if to the Company to:
IDACORP, Inc., 0000 X. Xxxxx Xxxxxx, Xxxxx, XX 00000-0000, Attention: Senior
Vice President, General Counsel and Secretary, Facsimile No.: 000-000-0000, with
a copy (which shall not constitute notice) to: LeBoeuf, Lamb, Xxxxxx & XxxXxx
LLP, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxxxxxx X. Xxxxxx,
Esq., Facsimile No.: 000-000-0000; and (ii) if to BNYCMI, BNY Capital Markets,
Inc., Xxx Xxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxxxxxx X. Xxxxx;
Facsimile No.: 000-000-0000, with a copy (which shall not constitute notice) to:
Xxxxxxxx & Xxxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention:
Xxxxxxx X. Xxxx, Esq., Facsimile No.: 000-000-0000. Except as set forth in
Section 5.03, notice shall be deemed given on the date of service or
transmission if personally served or transmitted by telegram, telex or confirmed
facsimile. Notice otherwise sent as provided herein shall be deemed given on the
third business day following the date mailed or on the next business day
following delivery of such notice to a reputable air courier service for next
day delivery.
Section 9.04 Entire Agreement. This Agreement constitutes the entire
agreement of the parties with respect to the subject matter hereof and
supersedes all prior and contemporaneous agreements, representations,
understandings, negotiations and discussions between the parties, whether oral
or written, with respect to the subject matter hereof.
Section 9.05 Amendment and Waiver. This Agreement may not be amended,
modified, supplemented, restated or waived except by a writing executed by the
party against which such amendment, modification, supplement, restatement or
waiver is sought to be enforced. Waivers may be made in advance or after the
right waived has arisen or the breach or default waived has occurred. Any waiver
may be conditional. No waiver of any breach of any agreement or provision herein
contained shall be deemed a waiver of any preceding or succeeding breach thereof
nor of any other agreement or provision herein contained. No waiver or extension
of time for performance of any obligations or acts shall be deemed a waiver or
extension of the time for performance of any other obligations or acts.
Section 9.06 No Assignment; No Third Party Beneficiaries. This Agreement
and the rights, duties and obligations hereunder may not be assigned or
delegated by the Company or BNYCMI. Any purported assignment or delegation of
rights, duties or obligations hereunder shall be void and of no effect. This
Agreement and the provisions hereof shall be binding upon and shall inure to the
benefit of each of the parties and their respective successors and, to the
extent provided in Article VI, the controlling persons, officers, directors,
employees and agents referred to in Article VI. This Agreement is not intended
to confer any rights or benefits on any Persons other than as set forth in
Article VI or elsewhere in this Agreement.
Section 9.07 Severability. This Agreement shall be deemed severable, and
the invalidity or unenforceability of any term or provision hereof shall not
affect the validity or enforceability of this Agreement or of any other term or
provision hereof. Furthermore, in lieu of any such invalid or unenforceable term
or provision, the parties hereto intend that there shall be added as a part of
this Agreement a provision as similar in terms to such invalid or unenforceable
provision as may be possible and be valid and enforceable.
24
Section 9.08 Further Assurances. Each party hereto, upon the request of
any other party hereto, shall do all such further acts and execute, acknowledge
and deliver all such further instruments and documents as may be necessary or
desirable to carry out the transactions contemplated by this Agreement.
Section 9.09 Titles and Headings. Titles, captions and headings of the
sections of this Agreement are for convenience of reference only and shall not
affect the construction of any provision of this Agreement.
Section 9.10 Governing Law. 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. Any action, suit or proceeding to enforce any provision of, or based on
any matter arising out of or in connection with, this Agreement or the
transactions contemplated hereby shall be brought in any federal court located
in the Southern District of the State of New York or any New York state court
located in the Borough of Manhattan, and the Company agrees to the exclusive
jurisdiction of such courts (and of the appropriate appellate courts therefrom)
and each party waives (to the full extent permitted by law) any objection it may
have to the laying of venue of any such suit, action or proceeding in any such
court or that any such suit, action or proceeding has been brought in an
inconvenient forum.
Section 9.11 Waiver of Jury Trial. The Company and BNYCMI each hereby
irrevocably waives any right it may have to a trial by jury in respect of any
claim based upon or arising out of this Agreement or any transaction
contemplated hereby.
Section 9.12 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and all of which taken
together shall constitute one and the same instrument. Delivery of an executed
Agreement by one party to the other may be made by facsimile transmission.
Section 9.13 Adjustments for Stock Splits, etc. The parties acknowledge
and agree that share related numbers contained in this Agreement (include the
minimum Floor Price) shall be equitably adjusted to reflect stock splits, stock
dividends, reverse stock splits, combinations and similar events.
25
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by the undersigned, thereunto duly authorized, as of the date first set
forth above.
IDACORP, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President -
Administrative Services and
Chief Financial Officer
BNY CAPITAL MARKETS, INC.
By: /s/ Xxxxxx X. xx Xxxxxxx
-----------------------------------
Name: Xxxxxx X. xx Xxxxxxx
Title: Managing Director
26
EXHIBIT A
ISSUANCE NOTICE
[Date]
BNY Capital Markets, Inc.
Xxx Xxxx Xxxxxx, (00xx Xxxxx)
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attn: Xxxxxxxxx Xxxxx
Reference is made to the Sales Agency Agreement between IDACORP, Inc. (the
"Company") and BNY Capital Markets, Inc. dated as of December 15, 2005. The
Company confirms that all conditions to the delivery of this Issuance Notice are
satisfied as of the date hereof.
Effective Date of Delivery of Issuance Notice
(determined pursuant to Section 2.03(b)): _________________
Number of Days in Selling Period: _________________
First Date of Selling Period: _________________
Last Date of Selling Period: _________________
Third Trading Day after
Settlement Date(s): each sale
Issuance Amount: _________________
Floor Price Limitation (adjustable by the
Company during the Selling Period, but not
less than $1.00; provided that no Common
Shares shall be sold at a price less than
95% of the last price at which the Common
Stock was traded on the NYSE prior to such
sale): $_______ per share
Comments:________________________________________________________________
IDACORP, INC.
By: ____________________________________
Name:
Title: [CEO, Chief Financial
Officer, President, Executive Vice
President, any Senior Vice President,
Secretary or Treasurer]
A-1
EXHIBIT B
OPINION OF XXXXXX X. XXXXXX, ESQ.
BNY Capital Markets, Inc.
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: IDACORP, Inc.
Issuance from time to time of up to 2,500,000 Shares of Common Stock
Ladies and Gentlemen:
I am General Counsel to IDACORP, Inc., an Idaho corporation (the
"Company"), and am delivering this opinion pursuant to Section 2.02(iii) of the
Sales Agency Agreement, as defined below. I am familiar with the Registration
Statement on Form S-3, File No. 333-83434 (the "Registration Statement"), filed
by the Company on February 26, 2002 with the Securities and Exchange Commission
(the "Commission") under the Securities Act of 1933, as amended (the "Securities
Act"), relating to $500,000,000 in aggregate principal amount of its (i)
unsecured senior debt securities, (ii) common stock, without par value (the
"Common Stock") and the preferred share purchase rights attached thereto (the
"Rights") and (iii) stock purchase contracts to purchase a number of shares of
the Common Stock. The Registration Statement was declared effective on March 6,
2002 (such registration statement as amended as of the date hereof, including
the documents incorporated by reference therein as of such date pursuant to Item
12 of Form S-3 being hereinafter referred to as the "Registration Statement");
the prospectus included therein, dated March 6, 2002 (the "Base Prospectus"),
has been supplemented by a prospectus supplement, dated December 15, 2005 (the
"Prospectus Supplement"; the Base Prospectus and the Prospectus Supplement,
including the documents incorporated by reference in the Base Prospectus and the
Prospectus Supplement as of the date hereof, being referred to as the
"Prospectus"), relating to the issuance and sale, pursuant to the Sales Agency
Agreement, dated December 15, 2005 (the "Sales Agency Agreement"), between the
Company and BNY Capital Markets, Inc., of up to 2,500,000 shares of Common Stock
(the "Shares") and the related Rights.
Terms not otherwise defined herein shall have the meanings given to
them in the Sales Agency Agreement.
For purposes of this opinion, I have examined originals or copies,
certified or otherwise identified to my satisfaction, of (i) the Registration
Statement, the Prospectus, the Sales Agency Agreement and the Rights Agreement,
dated as of September 10, 1998, between the Company and Xxxxx Fargo Bank,
National Association, as successor Rights Agent to The Bank of New York (the
"Rights Agreement"); (ii) the Articles of Incorporation, as amended, and Amended
Bylaws of the Company; (iii) resolutions adopted by the Board of Directors of
the Company relating to the Registration Statement, the Prospectus, the Rights
Agreement and the Common Stock in general and the Shares and Rights in
particular and (iv) such other instruments, certificates, records and documents
as I have deemed necessary or appropriate for the purposes hereof. In such
examination, I have assumed the genuineness of all signatures, the
B-1
conformity to originals of all documents submitted to me as copies and the
authenticity of the originals of such latter documents. As to any facts material
to my opinion, I have, when relevant facts were not independently established,
relied upon the aforesaid Registration Statement, Prospectus, Rights Agreement,
Articles of Incorporation, Amended Bylaws, resolutions, instruments,
certificates, records and documents.
Based upon and subject to the foregoing, and subject to the other
qualifications and limitations expressed herein, I am of the opinion that:
(i) The Company has been duly incorporated, is validly existing as a
corporation and is in good standing under the laws of the State of Idaho,
with requisite corporate power to own or lease its properties and conduct
its business in all material respects as described in the Registration
Statement and the Prospectus. The Company is duly qualified to transact
business as a foreign corporation and is in good standing in each
jurisdiction in which the failure to so qualify would have a Material
Adverse Effect.
(ii) Each of Idaho Power Company and IDACORP Financial Services, Inc.
(collectively, the "Material Subsidiaries") has been duly incorporated, is
validly existing as a corporation or limited liability company, as
applicable, and to the extent such concept is applicable, is in good
standing under the laws of its jurisdiction of incorporation or formation,
as applicable.
(iii) All of the outstanding shares of Common Stock of the Company
have been duly authorized and validly issued and are fully paid and
non-assessable; none of the outstanding shares of Common Stock of the
Company was issued in violation of the preemptive or other similar rights
of any security holder of the Company; all of the outstanding shares of
capital stock of each Material Subsidiary have been duly authorized and
validly issued and are fully paid and non-assessable. The Shares have been
duly authorized by all necessary corporate action on the part of the
Company and, when issued and delivered against payment therefor as provided
in the Sales Agency Agreement, will be validly issued, fully paid and
nonassessable, and will not be subject to any preemptive or similar rights.
The Shares conform in all material respects to the description thereof
contained in the Prospectus under the caption "Description of Common
Stock."
(iv) The related Rights will be legally issued and binding obligations
of the Company when they shall have been issued in accordance with the
Rights Agreement and as provided in the Sales Agency Agreement.
(v) The Company has duly authorized, executed and delivered the Sales
Agency Agreement.
(vi) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, the Sales Agency Agreement will
not (a) to my knowledge, conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under, or
result in the imposition of a lien or security interest upon any property
or assets used in the conduct of the business of the Company or any
Material Subsidiary pursuant to, any material indenture, mortgage, deed of
trust,
B-2
loan agreement or other agreement or instrument to which the Company or any
Material Subsidiary is a party or by which the Company or any Material
Subsidiary is bound or to which any of the property or assets used in the
conduct of the business of the Company or any Material Subsidiary is
subject, (b) result in any violation of the provisions of the Articles of
Incorporation or the Amended Bylaws of the Company or the organization
documents of any Material Subsidiary, or (c) to my knowledge, result in any
violation of any applicable statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the Company
or any Material Subsidiary, except in each case for conflicts, breaches,
violations, defaults, liens or security interests which do not individually
or in the aggregate have a Material Adverse Effect.
(vii) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is
required for the performance by the Company of its obligations under the
Sales Agency Agreement, except such as have been obtained under the
Securities Act and such as may be required under state securities or blue
sky laws, 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.
(viii) After due inquiry, I do not know of any legal or governmental
proceedings pending or threatened to which the Company or any of its
Subsidiaries is a party or to which any property of the Company or any of
its Subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described.
(ix) As of its effective date, the Registration Statement, including
any document filed pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act") and incorporated by reference in the
Registration Statement (except for the financial statements and other
financial data included therein, as to which I do not express any opinion),
and, as of the date of the Prospectus Supplement, the Base Prospectus, as
supplemented by the Prospectus Supplement, appeared on their face to comply
as to form in all material respects with the applicable requirements of the
Securities Act and the Exchange Act and the applicable instructions, rules
and regulations of the Commission thereunder.
Nothing has come to my attention that causes me to believe that the
Registration Statement (except for the financial statements and other financial
data included therein, as to which I do not express any belief) at the time the
Registration Statement became effective contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or that the Base
Prospectus, as supplemented by the Prospectus Supplement (except for the
financial statements and other financial data included therein, as to which I do
not express any belief), as of the date of the Prospectus Supplement or as of
the Closing Date contained or contains any untrue statement of a material fact
or omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
B-3
The matters relating to the Shares and the Rights are governed by the
law of the State of Idaho. In regard to the Rights, I note that Section 30-1610
of the Idaho Control Share Acquisition Law and Section 30-1706 of the Idaho
Business Combination Law each provide that nothing contained in either the Idaho
Control Share Acquisition Law (Sections 30-1601 through 30-1614) or the Idaho
Business Combination Law (Sections 30-1701 through 30-1710), respectively, is
intended to limit the corporate powers or authority of an "issuing public
corporation" (as defined in such statutes), such as the Company, to take actions
"which the directors may appropriately determine to be in furtherance of the
protection of the interests of the corporation and its shareholders, including
without limitation the authority to ...enter into...arrangements", such as the
Rights Agreement, that "deny rights...to the holder or holders of at least a
specified number of shares or percentage of share ownership or voting power in
certain circumstances."
Because I am not aware of any court decision applying the law of the
State of Idaho that addresses the effect of these statutory provisions or the
validity of plans similar to the Rights Agreement, it is difficult to express a
professional judgment as to how a court applying the law of the State of Idaho
would rule with respect to the issues relating to the Rights. Nevertheless, I am
able to advise you of my opinion as expressed herein, which reflects my
professional conclusion concerning how a court applying the law of the State of
Idaho (including, but not limited to, Section 30-1610 of the Idaho Control Share
Acquisition Law and Section 30-1706 of the Idaho Business Combination Law)
likely would rule.
I have concluded that a court applying the law of the State of Idaho,
when presented with novel questions concerning takeover matters, such as the
effect of the statutory provisions cited above, the adoption by the Company of
the Rights Agreement and the status of the Rights, most likely would apply the
corporate law of the State of Delaware, the most fully developed body of
corporate law in the United States. Accordingly, in rendering this opinion, I
have assumed that Delaware corporate law, as expressed in court decisions
applying that law, with which I am familiar, provides an indication of what
standards a court would apply if it were required to apply the law of the State
of Idaho considering the matters relating to the Rights. If, however, such a
court did not apply the corporate law of Delaware to the Rights Agreement and
the Rights, I cannot express a professional judgment as to the conclusions such
a court would reach or as to the effect of such conclusions, whether positive or
negative, on the Rights.
With respect to this opinion, I do not hold myself out as an expert on
the laws of any state other than the State of Idaho. My opinions expressed above
are limited to the laws of the State of Idaho, the General Corporation Law of
the State of Delaware and the applicable provisions of the Constitution of the
State of Delaware and the reported judicial decisions interpreting the Delaware
laws and the federal laws of the United States.
Notwithstanding the following paragraph, this opinion letter may be
relied upon by LeBoeuf, Lamb, Xxxxxx & XxxXxx LLP and Xxxxxxxx & Xxxxxxxx LLP in
connection with the issuance and sale of the Shares and the related Rights to
the same extent as if it were addressed to them.
B-4
I am furnishing this opinion letter to you for use in connection with
the transactions contemplated by the Sales Agency Agreement. It is not to be
used, circulated, quoted or referred to, or relied upon by, another person or be
used for any other purpose.
Very truly yours,
Xxxxxx X. Xxxxxx
X-0
XXXXXXX X
XXXXXXX XX XXXXXXX, XXXX, XXXXXX & XXXXXX LLP
BNY Capital Markets, Inc.
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: IDACORP, Inc.
Issuance from time to time of up to 2,500,000 Shares of Common Stock
Ladies and Gentlemen:
We have acted as Special Counsel to IDACORP, Inc., an Idaho
corporation (the "Company"), in connection with the preparation and filing of a
Registration Statement on Form S-3, File No. 333-83434 (the "Registration
Statement"), filed by the Company on February 26, 2002 with the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Securities Act"), relating to $500,000,000 in aggregate principal
amount of its (i) unsecured senior debt securities, (ii) common stock, without
par value (the "Common Stock") and the preferred share purchase rights attached
thereto (the "Rights") and (iii) stock purchase contracts to purchase a number
of shares of the Common Stock. The Registration Statement was declared effective
on March 6, 2002 (such registration statement as amended as of the date hereof,
including the documents incorporated by reference therein as of such date
pursuant to Item 12 of Form S-3 being hereinafter referred to as the
"Registration Statement"); the prospectus included therein, dated March 6, 2002
(the "Base Prospectus"), has been supplemented by a prospectus supplement, dated
December 15, 2005 (the "Prospectus Supplement"; the Base Prospectus and the
Prospectus Supplement, including the documents incorporated by reference in the
Base Prospectus and the Prospectus Supplement as of the date hereof, being
referred to as the "Prospectus"), relating to the issuance and sale, pursuant to
the Sales Agency Agreement, dated December 15, 2005 (the "Sales Agency
Agreement"), between the Company and BNY Capital Markets, Inc., of up to
2,500,000 shares of Common Stock (the "Shares") and the related Rights. We are
delivering this opinion pursuant to Section 2.02(iv) of the Sales Agency
Agreement.
Terms not otherwise defined herein shall have the meanings given to
them in the Sales Agency Agreement.
For purposes of this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of (i) the Registration
Statement, the Prospectus, the Sales Agency Agreement and the Rights Agreement,
dated as of September 10, 1998, between the Company and Xxxxx Fargo Bank,
National Association, as successor Rights Agent to The Bank of New York (the
"Rights Agreement"); (ii) the Articles of Incorporation, as amended, and Amended
Bylaws of the Company; (iii) resolutions adopted by the Board of Directors of
the Company relating to the Registration Statement, the Prospectus, the Rights
Agreement and the Common Stock in general and the Shares and Rights in
particular and (iv) such other
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instruments, certificates, records and documents as we have deemed necessary or
appropriate for the purposes hereof. In such examination, we have assumed the
genuineness of all signatures, the conformity to originals of all documents
submitted to us as copies and the authenticity of the originals of such latter
documents. As to any facts material to our opinion, we have, when relevant facts
were not independently established, relied upon the aforesaid Registration
Statement, Prospectus, Rights Agreement, Articles of Incorporation, Amended
Bylaws, resolutions, instruments, certificates, records and documents.
Based upon and subject to the foregoing, and subject to the other
qualifications and limitations expressed herein, we are of the opinion that:
(i) The Company has been duly incorporated, is validly existing as a
corporation and is in good standing under the laws of the State of Idaho.
(ii) The Shares have been duly authorized by all necessary corporate
action on the part of the Company and, when issued and delivered against
payment therefor as provided in the Sales Agency Agreement, will be validly
issued, fully paid and nonassessable, and will not be subject to any
preemptive or similar rights. The Shares conform in all material respects
to the description thereof contained in the Prospectus under the caption
"Description of Common Stock."
(iii) The related Rights will be legally issued and binding
obligations of the Company when they shall have been issued in accordance
with the Rights Agreement and as provided in the Sales Agency Agreement.
(iv) The Company has duly authorized, executed and delivered the Sales
Agency Agreement.
(v) The Company is exempt from the provisions of the Public Utility
Holding Company Act of 1935, as amended (repealed effective February 8,
2006), applicable to it as a holding company except Section 9(a)(2) thereof
and is exempt therefrom with respect to the issuance and sale of the
Shares.
(vi) The Company is not, and after giving effect to the offering and
sale of the Shares will not be, an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
(vii) As of its effective date, the Registration Statement, including
any document filed pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act") and incorporated by reference in the
Registration Statement (except for the financial statements and other
financial data included therein, as to which we express no opinion), and,
as of the date of the Prospectus Supplement, the Base Prospectus, as
supplemented by the Prospectus Supplement, appeared on their face to comply
as to form in all material respects with the applicable requirements of the
Securities Act and the Exchange Act and the applicable instructions, rules
and regulations of the Commission thereunder.
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In passing upon the form of the Registration Statement and the form of
the Base Prospectus, as supplemented by the Prospectus Supplement, we
necessarily assume the correctness and completeness of the representations made
to us and the statements made to us or included in the Registration Statement
and the Base Prospectus, as supplemented by the Prospectus Supplement, by the
Company and take no responsibility therefor except to the limited extent set
forth in the last sentence of opinion (ii) above. In the course of the
preparation by the Company of the Registration Statement and the Base
Prospectus, we had conferences with certain of its officers and representatives,
with other counsel for the Company and with Deloitte & Touche LLP, the
independent registered public accounting firm who examined certain of the
financial statements included or incorporated by reference in the Registration
Statement. In the course of our examination of the Registration Statement and
the Base Prospectus, as supplemented by the Prospectus Supplement, and our
discussions in the above-mentioned conferences, nothing has come to our
attention that causes us to believe that the Registration Statement (except for
the financial statements and other financial data included therein, as to which
we express no belief) at the time the Registration Statement became effective
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or that the Base Prospectus, as supplemented by the Prospectus
Supplement (except for the financial statements and other financial data
included therein, as to which we express no belief), as of the date of the
Prospectus Supplement or as of the Closing Date contained or contains any untrue
statement of a material fact or omitted or omits 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 matters relating to the Shares and the Rights are governed by the
law of the State of Idaho. In regard to the Rights, we note that Section 30-1610
of the Idaho Control Share Acquisition Law and Section 30-1706 of the Idaho
Business Combination Law each provide that nothing contained in either the Idaho
Control Share Acquisition Law (Sections 30-1601 through 30-1614) or the Idaho
Business Combination Law (Sections 30-1701 through 30-1710), respectively, is
intended to limit the corporate powers or authority of an "issuing public
corporation" (as defined in such statutes), such as the Company, to take actions
"which the directors may appropriately determine to be in furtherance of the
protection of the interests of the corporation and its shareholders, including
without limitation the authority to ...enter into...arrangements", such as the
Rights Agreement, that "deny rights...to the holder or holders of at least a
specified number of shares or percentage of share ownership or voting power in
certain circumstances."
Because we are not aware of any court decision applying the law of the
State of Idaho that addresses the effect of these statutory provisions or the
validity of plans similar to the Rights Agreement, it is difficult to express a
professional judgment as to how a court applying the law of the State of Idaho
would rule with respect to the issues relating to the Rights. Nevertheless, we
are able to advise you of our opinion as expressed herein, which reflects our
professional conclusion concerning how a court applying the law of the State of
Idaho (including, but not limited to, Section 30-1610 of the Idaho Control Share
Acquisition Law and Section 30-1706 of the Idaho Business Combination Law)
likely would rule.
Although we are not admitted to practice in the State of Idaho, we
have conferred with Xxxxxx X. Xxxxxx, Esq., Senior Vice President, General
Counsel and Secretary of the
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Company, for purposes of rendering this opinion. General Counsel and we have
concluded that a court applying the law of the State of Idaho, when presented
with novel questions concerning takeover matters, such as the effect of the
statutory provisions cited above, the adoption by the Company of the Rights
Agreement and the status of the Rights, most likely would apply the corporate
law of the State of Delaware, the most fully developed body of corporate law in
the United States. Accordingly, in rendering our opinion, we have assumed that
Delaware corporate law, as expressed in court decisions applying that law, with
which we are familiar, provides an indication of what standards a court would
apply if it were required to apply the law of the State of Idaho considering the
matters relating to the Rights. If, however, such a court did not apply the
corporate law of Delaware to the Rights Agreement and the Rights, we cannot
express a professional judgment as to the conclusions such a court would reach
or as to the effect of such conclusions, whether positive or negative, on the
Rights.
With respect to this opinion, we do not hold ourselves out as experts
on the laws of any state other than the State of New York. Our opinions
expressed above are limited to the laws of the State of New York, the General
Corporation Law of the State of Delaware and the applicable provisions of the
Constitution of the State of Delaware and the reported judicial decisions
interpreting the Delaware laws, and the federal laws of the United States.
Insofar as this opinion involves matters of the law of the State of Idaho, we
have relied upon an opinion of even date herewith addressed to you by Xxxxxx X.
Xxxxxx, Senior Vice President, General Counsel and Secretary of the Company.
We are furnishing this opinion letter to you for use in connection
with the transactions contemplated by the Sales Agency Agreement. It is not to
be used, circulated, quoted or referred to, or relied upon by, another person or
be used for any other purpose.
Very truly yours,
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SCHEDULE 1
BNYCMI
Name: Telephone Number:
----- -----------------
Xxxxxxxxx Xxxxx (000) 000-0000
Xxxxx Xxxxxxx (000) 000-0000
Xxxxx Xxxxxx (000) 000-0000
Xxxx Xxxxxxxx (000) 000-0000
Xxxx Xxxxxx (000) 000-0000
Xxxxx Fargo Bank, National Association
Name: Telephone Number:
----- -----------------
Xxxxxxx X. Xxxxx (000) 000-0000
IDACORP, Inc.
Name: Telephone Number:
----- -----------------
Xxxxxxx Xxxxxxx (000) 000-0000
Xxxxxxx Xxxxx (000) 000-0000
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SCHEDULE 2
BNYCMI
Xxxxxx X. xx Xxxxxxx
Xxxxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Address: Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
IDACORP, Inc.
Xxx X. Xxxxxxxx
J. XxXxxx Xxxx
Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxxx
Xxxxxxxx X. Xxxxxxx
Xxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Address: 0000 Xxxx Xxxxx Xxxxxx
Xxxxx, Xxxxx 00000
S-2-1
