FORM OF PURCHASE AGREEMENT
Exhibit
h.4
FORM
OF
PURCHASE AGREEMENT
00000
Xxxxxx Xxxxxxxxx,
Xxxxx 000
Xxxxxxxx
Xxxx, Xxxxxx
00000
Ladies
and Gentlemen:
The
undersigned entities set forth on Schedule I hereto (each an “Investor”),
hereby confirm and agree with you as follows:
1.
This Purchase Agreement (the “Agreement”) is made as of [DATE], by and among
Tortoise Energy Infrastructure Corporation, a Maryland corporation (the “Fund”),
Tortoise Capital Advisors, LLC, a Delaware limited liability company
(the “Adviser”) and each Investor.
2.
The Fund has authorized the sale and issuance of up
to _____________________________________ (_______) shares (the “Shares”) of
common stock of the Fund, par value $0.001 per share (the “Common Stock”),
subject to adjustment by the Fund’s Board of Directors or a committee thereof,
to certain investors (the “Offering”). The Fund has filed with the
Securities and Exchange Commission (the “Commission”) a registration statement
on Form N-2 (File Nos. __________ and __________) which became effective on
[DATE], covering the registration of the Shares under the Securities Act of
1933, as amended (the “1933 Act”), and a notification on Form N-8A of
registration of the Fund as an investment company under the Investment Company
Act of 1940, as amended (the “1940 Act”), and the rules and regulations of the
Commission under the 1933 Act and the 1940 Act (the “Rules and
Regulations”). Promptly after execution and delivery of this
Agreement, the Fund will prepare and file a prospectus supplement in accordance
with the provisions of Rule 430A (“Rule 430A”) and paragraph (c)
and/or (h) of Rule 497 (“Rule 497”) of the Rules and Regulations. The
information included in any such prospectus that was omitted from such
registration statement at the time it became effective but that is deemed to
be
part of such registration statement at the time it became effective pursuant
to
paragraph (b) of Rule 430A is referred to as “Rule 430A
Information.” Each prospectus used before such registration statement
became effective, including in each case any statement of additional
information incorporated therein by reference, is herein called a “Preliminary
Prospectus.” Such registration statement, including a Rule 462(d)
post-effective amendment or other amendments thereto, the exhibits and
schedules thereto at the time it became effective and including the
Rule 430A Information and any statement of additional information
incorporated therein by reference, is herein called the “Registration
Statement.” The final prospectus in the form first furnished to the
Placement Agent for use in connection with the issuance and sale of the Shares
to the Investors, including the statement of additional information incorporated
therein by reference, is herein called the “Prospectus.”
3.
The Fund and each Investor agree that each Investor will purchase from the
Fund
and the Fund will issue and sell to each Investor the number of Shares, set
forth opposite such Investor’s name on Schedule I hereto, at a purchase
price of $_____ per share, pursuant to the Terms and Conditions for Purchase
of
Shares attached hereto as Annex I and incorporated herein by reference as if
fully set forth herein. Each Investor acknowledges that the offering
is not
being
underwritten by the placement agent (the “Placement Agent”) named in the
Prospectus and that there is no minimum offering amount. Certificates
representing the Shares purchased by each Investor will not be issued to such
Investor; instead, such Shares will be credited to each Investor using customary
book-entry procedures.
4.
Each Investor represents that, except as set forth on Schedule II hereto,
(a) it has had no position, office or other material relationship within
the past three years with the Fund or persons known to it to be affiliates
of
the Fund, (b) it is not a, and it has no direct or indirect affiliation or
association with any, FINRA member as of the date hereof and (c) after
giving effect to the Offering, neither the undersigned Investor nor any group
of
Investors (as identified in a public filing made with the Commission) of which
the undersigned Investor is a part, in connection with the offering of the
Shares will acquire, or obtain the right to acquire, 20% or more of the Common
Stock (or securities convertible or exercisable for Common Stock) or the voting
power of the Fund.
5.
Each Investor hereby confirms receipt of the Fund’s prospectus supplement,
dated [DATE] and the Fund’s base prospectus, dated [DATE], each distributed
by email to each Investor with this Agreement. Each Investor confirms
that it had full access to the Prospectus and the information incorporated
by
reference therein and was fully able to download, print, read and review such
documents. Each Investor acknowledges that it will be required to
bear the cost, if any, of printing the Prospectus.
2
Please
confirm that the foregoing correctly sets forth the agreement between us by
signing in the space provided below for that purpose.
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AGREED
AND ACCEPTED:
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[NAME]
By:
___________________________________
Name:
_________________________________
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Aggregate
number of Shares
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Price
per Share
$
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Aggregate
purchase price
$
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a
Maryland corporation
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By: ______________________________
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Name:
______________________________
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Title: ______________________________
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TORTOISE
CAPITAL ADVISORS, LLC
a
Delaware limited liability company
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By: ______________________________
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Name: ______________________________
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Title: ______________________________
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3
SCHEDULE I
SCHEDULE
OF INVESTORS
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Investor
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Name
in which
book-entry
should
be made
(if
different):
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Investor
Address,
Telephone
and Contact
Person
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Aggregate
Number of Shares
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Aggregate
Purchase Price
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Tax
ID Number
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Name
of Broker
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Broker
DTC No.
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1.
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2.
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3.
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Sch.
I-1
SCHEDULE II
None.
Sch.
II-1
ANNEX I
TERMS
AND CONDITIONS FOR PURCHASE OF SHARES
1.
Authorization and
Sale
of Shares. The Fund has authorized the sale of up
to _________________________________ (________)
Shares. The Fund reserves the right to increase or decrease this
number.
2.
Agreement to Sell
and
Purchase the Shares; Subscription Date.
2.1
Upon the terms and subject to the conditions hereinafter set forth, at the
Closing (as defined in Section 3), the Fund will sell to each Investor, and
each Investor will purchase from the Fund, the number of Shares set forth on
Schedule I of this Agreement at the purchase price set forth
therein.
2.2
The Fund may enter into agreements similar to this Agreement with certain other
investors (the “Other Investors”) and expects to complete sales of Shares to
them. (Each Investor and the Other Investors are hereinafter
collectively referred to as the “Investors,” and this Agreement and the purchase
agreements executed by the Other Investors are hereinafter collectively referred
to as the “Agreements”). The Fund may accept or reject any one or
more Agreements in its sole discretion.
3.
Delivery of the
Shares
at Closing. The completion of the purchase and sale of the
Shares (the “Closing”) shall occur on [DATE] at _____ a.m. (Eastern
Time) or at such later date and time as the parties hereto may agree upon (such
date and time of payment being herein called the “Closing Time”), at the offices
of the Placement Agent’s counsel. At the Closing, the Fund shall
deliver to each Investor, using customary book-entry procedures, the number
of
Shares set forth on Schedule I to this Agreement, and each Investor shall
deliver to the Fund or as otherwise directed by the Placement Agent a certified
or official bank check or wire transfer of funds in the full amount of the
aggregate purchase price for the Shares being purchased hereunder as set forth
opposite such Investor’s name on Schedule I hereto to a bank account
designated by the Fund.
The
Fund’s obligation to issue and sell the Shares to each Investor shall be subject
to the following conditions, any one or more of which may be waived by the
Fund:
(a) receipt by the Fund of a certified or official bank check or wire
transfer of funds in the full amount of the purchase price for the Shares being
purchased; (b) completion of the purchases and sales of Shares under the
Agreements that may be executed with the Other Investors; and (c) the
accuracy of the representations and warranties made by each Investor and the
fulfillment of those undertakings of each Investor to be fulfilled prior to
the
Closing.
Each
Investor’s obligation to purchase the Shares shall be subject to the condition
that the Placement Agent shall not have (a) terminated the Placement Agency
Agreement dated as of [DATE], between the Fund, the Adviser and the Placement
Agent (the “Placement Agency Agreement”) pursuant to the terms thereof or
(b) determined that the conditions to closing in the Placement Agency
Agreement have not been satisfied.
Annex
I-1
4.
Representations and
Warranties.
4.1
Representations
and
Warranties by the Fund and the Adviser. The Fund and the
Adviser represent and warrant to each Investor as of the date hereof and as
of
the Closing Time referred to in Section 3 hereof, and agree with the Investor,
as follows:
(a)
Compliance With
Registration Requirements. Each of the Registration Statement
and the Rule 462(d) post-effective amendment has become effective under the
1933
Act and no stop order suspending the effectiveness of the Registration Statement
or the Rule 462(d) post-effective amendment has been issued under the 1933
Act,
or order of suspension or revocation of registration pursuant to Section 8(e)
of
the 1940 Act, and no proceedings for any such purpose, have been instituted
or
are pending or, to the knowledge of the Fund or the Adviser, are contemplated
by
the Commission, and any request on the part of the Commission for additional
information has been complied with.
At
the respective times the
Registration Statement and the Rule 462(d) post-effective amendment relating
to
the issuance and sale of the Shares to the Investors (filed before the Closing
Time) became effective and at the Closing Time, as hereinafter defined, the
Registration Statement, the Rule 462(d) post-effective amendment, the
notification on Form N-8A and all amendments and supplements thereto
complied and will comply in all material respects with the requirements of
the
1933 Act, the 1940 Act and the Rules and Regulations and did not and will not
contain an untrue statement of a material fact or omit to state a material
fact
required to be stated therein or necessary to make the statements therein not
misleading. Neither the Prospectus nor any amendment or supplement
thereto, at the time the Prospectus or any such amendment or supplement was
issued and at the Closing Time, included or will include an untrue statement
of
a material fact or omitted or will omit to state a material fact necessary
in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. The representations and
warranties in this subsection shall not apply to statements in or omissions
from
the Registration Statement or Prospectus made in reliance upon and in conformity
with written information furnished to the Fund by or on behalf of the Placement
Agent for use in the Registration Statement or Prospectus.
Annex
I-2
As
of the
date hereof, the Statutory Prospectus (as defined below) and the information
included on Schedule A hereto, all considered together (collectively, the
“General Disclosure Package”), did not include any untrue statement of a
material fact or omitted to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were
made, not misleading.
As
used
in this subsection and elsewhere in this Agreement, “Statutory Prospectus” as of
any time means the prospectus relating to the Shares that is included in the
Registration Statement immediately prior to that time, including any document
incorporated by reference therein.
Each
preliminary prospectus and the prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 497 under the 1933 Act, complied when so filed in all material
respects with the Rules and Regulations and the Prospectus delivered to the
Placement Agent for use in connection with the issuance and sale of Shares
to
the Investors was identical to the electronically transmitted copies thereof
filed with the Commission pursuant to its Electronic Data Gathering, Analysis
and Retrieval System (“XXXXX”), except to the extent permitted by Regulation
S-T.
At
the
time of filing the Registration Statement and any 462(d) post-effective
amendments relating to the issuance and sale of the Shares to the Investors
and
at the date hereof, the Fund was not and is not an “ineligible issuer,” as
defined in Rule 405 of the Rules and Regulations.
(b)
Incorporation of
Documents by Reference. The documents incorporated in the
Registration Statement, the Prospectus and the Statutory Prospectus, at the
time
they were or hereafter are filed with the Commission, complied and will comply
in all material respects with the requirements of the 1934 Act and the rules
and
regulations of the Commission under the 1934 Act, the 1940 Act and the Rules
and
Regulations and, when read together with the other information in the
Prospectus, (a) at the time the Registration Statement became effective, (b)
at
the time the Prospectus was issued and (c) at the Closing Time, did not and
will
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading.
(c)
Financial
Statements. The statement of assets and liabilities included
in the Registration Statement, the General Disclosure Package and the
Prospectus, together with the related notes, presents fairly in accordance
with
generally accepted accounting principles (“GAAP”) in all material respects the
financial position of the Fund at the date indicated and has been prepared
in
conformity with GAAP. The supporting schedules, if any, present
fairly in accordance with GAAP the information required to be stated
therein. The selected financial data and the summary financial
information included in the Prospectus present fairly the information shown
therein and have been compiled
Annex
I-3
on a basis consistent with that of audited financial statements included in
the
Registration Statement.
(d)
No Material Adverse
Change. Since the respective dates as of which information is
given in the Registration Statement, the General Disclosure Package and the
Prospectus, except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Fund, whether or not
arising in the ordinary course of business (other than as a result of changes
in
market conditions generally) (a “Material Adverse Effect”), (B) there have
been no transactions entered into by the Fund, other than those in the ordinary
course of business, which are material with respect to the Fund, and
(C) there has been no dividend or distribution of any kind declared, paid
or made by the Fund on any class of its capital stock.
(e)
Good Standing of
the
Fund. The Fund has been duly organized and is validly existing
as a corporation in good standing under the laws of the State of Maryland and
has the corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Prospectus and to enter into
and
perform its obligations under this Agreement; and the Fund is duly qualified
as
a foreign corporation to transact business and is in good standing in each
other
jurisdiction in which such qualification is required, whether by reason of
the
ownership or leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a Material
Adverse Effect.
(f)
Investment Company
Status. The Fund is duly registered with the Commission under
the 1940 Act as a nondiversified, closed-end management investment company,
and
no order of suspension or revocation of such registration has been issued or
proceedings therefor initiated or, to the Fund’s knowledge, threatened by the
Commission.
(g)
Authorization and
Description of Shares. The Shares to be purchased by the
Investors from the Fund have been duly authorized for issuance and sale to
the
Investors pursuant to this Agreement and, when issued and delivered by the
Fund
pursuant to one or more Purchase Agreements against payment of the consideration
set forth therein, will be validly issued, fully paid and
non-assessable. The Shares conform to all statements relating thereto
contained in the General Disclosure Package and the Prospectus and such
description conforms in all material respects to the rights set forth in the
instruments defining the same; and the issuance and sale of the Shares is not
subject to the preemptive or other similar rights of any securityholder of
the
Fund.
(h)
NYSE
Listing. The Shares have been duly authorized for listing,
upon notice of issuance, on the NYSE and the Fund’s registration statement on
Form 8-A under the 1934 Act has become effective.
Annex
I-4
4.2
Representations
and
Warranties by the Adviser. The Adviser
represents and warrants to each Investor as of the date hereof and as of the
Closing Time referred to in Section 3 hereof as follows:
(a)
Good Standing of
the
Adviser. The Adviser has been duly organized and is validly
existing and in good standing as a limited liability company under the laws
of
the State of Delaware with full power and authority to own, lease and operate
its properties and to conduct its business as described in the General
Disclosure Package and the Prospectus and is duly qualified as a foreign entity
to transact business and is in good standing in each other jurisdiction in
which
such qualification is required except as would not, individually or in the
aggregate, result in a material adverse change in the condition, financial
or
otherwise, or in the earnings, business affairs or business prospects of such
Adviser, whether or not arising in the ordinary course of business (an “Adviser
Material Adverse Effect”).
(b)
Investment Adviser
Status. The Adviser is duly registered and in good standing
with the Commission as an investment adviser under the Investment Advisers
Act
of 1940, as amended (the “Advisers Act”), and is not prohibited by the Advisers
Act, the 1940 Act, or the rules and regulations under such acts, from acting
under the Investment Advisory Agreement for the Fund as contemplated by the
Prospectus.
(c)
Description of
Adviser. The description of the Adviser in the Registration
Statement, the General Disclosure Package and the Prospectus (including any
amendment or supplement thereto) complied and comply in all material respects
with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules
and Regulations and the rules and regulations of the Commission promulgated
under the Advisers Act, and is true and correct and does not contain any untrue
statement of a material fact or omit to state any material fact required to
be
stated therein or necessary in order to make the statements therein, in light
of
the circumstances under which they were made, not misleading.
(d)
Authorization of
Offering Agreements; Absence of Defaults and Conflicts. This
Agreement and the Investment Advisory Agreement have each been duly authorized,
executed and delivered by the Adviser, and (assuming the due authorization,
execution and delivery of each other party thereto) each such Agreement
constitutes a valid and binding obligation of the Adviser, enforceable in
accordance with its terms, except as affected by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors’ rights generally and general equitable
principles (whether considered in a proceeding in equity or at law) or an
implied covenant of good faith and fair dealing and except as rights to
indemnification or contribution thereunder may be limited by federal or state
laws; and neither the execution and delivery of this Agreement, any Purchase
Agreement or the Investment Advisory Agreement nor the performance by the
Adviser of its obligations hereunder or thereunder will conflict with, or result
in a breach of any of the terms and
Annex
I-5
provisions
of, or constitute, with or without the giving of notice or lapse of time or
both, a default under, (i) any agreement or instrument to which the Adviser
is a
party or by which it is bound, (ii) the limited liability company operating
agreement and other organizational documents of the Adviser, or (iii) to
the Adviser’s knowledge, by any law, order, decree, rule or regulation
applicable to it of any jurisdiction, court, federal or state regulatory body,
administrative agency or other governmental body, stock exchange or securities
association having jurisdiction over the Adviser or its properties or operations
other than any conflict, breach or default that would not, individually or
in
the aggregate, reasonably be expected to result in an Adviser Material Adverse
Effect; and no consent, approval, authorization or order of any court or
governmental authority or agency is required for the consummation by the Adviser
of the transactions contemplated by this Agreement, any Purchase Agreement
or
the Investment Advisory Agreement, except as have been obtained or will be
obtained prior to the Closing Time or may be required under the 1933 Act, the
1940 Act, the 1934 Act or state securities laws.
5.
Representations,
Warranties and Covenants of each Investor.
5.1
Each Investor represents and warrants that it has received and read the Fund’s
Prospectus.
5.2
Each Investor, if outside the United States, will comply with all applicable
laws and regulations in each foreign jurisdiction in which it purchases, offers,
sells or delivers Shares or has in its possession or distributes any offering
material, in all cases at its own expense.
5.3
Each Investor further represents and warrants to, and covenants with, the Fund
that (i) such Investor has full right, power, authority and capacity to
enter into this Agreement and to consummate the transactions contemplated hereby
and has taken all necessary action to authorize the execution, delivery and
performance of this Agreement, and (ii) this Agreement constitutes a valid
and binding obligation of such Investor, enforceable in accordance with its
terms, except as affected by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors’ rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good faith and
fair
dealing and except as rights to indemnification or contribution thereunder
may
be limited by federal or state laws.
5.4
Each Investor understands that nothing in the Prospectus, this Agreement or
any
other materials presented to such Investor in connection with the purchase
and
sale of the Shares constitutes legal, tax or investment advice. Such
Investor has consulted such legal, tax and investment advisors as it, in its
sole discretion, has deemed necessary or appropriate in connection with its
purchase of Shares.
5.5
From and after obtaining the knowledge of the sale of the Shares contemplated
hereby, such Investor has not taken, and prior to the public
announcement
Annex
I-6
of the transaction such Investor shall not take, any action that has caused or will cause such Investor to have, directly or indirectly, sold or agreed to sell any shares of Common Stock, effected any short sale, whether or not against the box, established any “put equivalent position” (as defined in Rule 16a-1(h) under the 0000 Xxx) with respect to the Common Stock, granted any other right (including, without limitation, any put or call option) with respect to the Common Stock or with respect to any security that includes, relates to or derives any significant part of its value from the Common Stock, whether or not, directly or indirectly, in order to hedge its position in the Shares.
6.
Survival of
Representations, Warranties and Agreements. Notwithstanding
any investigation made by any party to this Agreement, all covenants,
agreements, representations and warranties made by the Fund and each Investor
herein shall survive the execution of this Agreement, the delivery to such
Investor of the Shares being purchased and the payment therefor.
7.
Notices. All
notices, requests, consents and other communications hereunder shall be in
writing, shall be mailed (A) if within domestic United States by
first-class registered or certified airmail, or nationally recognized overnight
express courier, postage prepaid, or by facsimile, or (B) if delivered from
outside the United States, by International Federal Express or facsimile, and
shall be deemed given (i) if delivered by first-class registered or
certified mail domestic, three business days after so mailed, (ii) if
delivered by a nationally recognized overnight carrier, one business day after
so mailed, (iii) if delivered by International Federal Express, two
business days after so mailed, (iv) if delivered by facsimile, upon
electronic confirmation of receipt and shall be delivered as addressed as
follows:
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if
to the Fund, to:
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00000
Xxxxxx Xxxxxxxxx, Xxxxx 000
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Xxxxxxxx
Xxxx, Xxxxxx 00000
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Attention:
Xxxxx X. Xxxxxxx
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Facsimile
No.: (000) 000-0000
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if
to an
Investor, at its address on Schedule I hereto, or at such other address or
addresses as may have been furnished to the Fund in writing.
8.
Changes. This
Agreement may not be modified or amended except pursuant to an instrument in
writing signed by the Fund and each Investor.
9.
Headings. The
headings of the various sections of this Agreement have been inserted for
convenience or reference only and shall not be deemed to be part of this
Agreement.
10.
Severability. In
case any provision contained in this Agreement should be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of
the
remaining provisions contained herein shall not in any way be affected or
impaired thereby.
Annex
I-7
11.
Governing
Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS
MADE
AND TO BE PERFORMED IN SAID STATE.
12.
Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall
constitute an original, but all of which, when taken together, shall constitute
but one instrument, and shall become effective when one or more counterparts
have been signed by each party hereto and delivered to the other
parties.
[Remainder
of Page Intentionally Left Blank]
Annex
I-8
SCHEDULE
A
Price
Per Share = $
Annex
I-9
INSTRUCTION
SHEET FOR INVESTOR - PRICING
(to
be
read in conjunction with the entire Purchase Agreement)
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1.
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Completing
Purchase Agreement
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Print
all
the information regarding the Investor requested on:
(i)
Schedule I
to the Purchase Agreement to facilitate the Closing and the electronic delivery
of the Shares;
and
(ii)
the
signature page to the Purchase Agreement
The
Purchase Agreement must be executed by an individual authorized to bind the
Investor.
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2.
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Delivering
Purchase Agreement
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(i)
FAX COPIES of
(1) Schedule I, see (1)(i) above AND (2) the signature page, see
(1)(ii) above.
By [TIME]
[STATE] Time on
[DATE], return via
facsimile signed copies of the Purchase Agreement to each of the following
persons:
[PLACEMENT
AGENT]
[ADDRESS]
Attention: [NAME]
Phone
No.:
Facsimile
No.:
[LEGAL
COUNSEL]
[ADDRESS]
Attention: [NAME]
Phone
No.:
Facsimile
No.:
(ii)
MAIL
ORIGINAL
Please
deliver the originally signed
documents to [LEGAL COUNSEL] at the address above via overnight
delivery.
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3.
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A
copy of the Purchase Agreement signed by the Fund will be delivered
to the
Investor at a later date.
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INSTRUCTION
SHEET FOR INVESTOR - CLOSING
(to
be
read in conjunction with the entire Purchase Agreement)
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1.
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Delivery
of
Funds
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By
NO LATER THAN [TIME] [STATE] Time
on [DATE], wire the purchase price for the Shares to the trust account of
The Fund, using the wire instructions below.
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2.
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Wire
Instructions
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[BANK]
For
Credit to Account
Account
of
Attention:
For
further credit to account:
Please
CLEARLY INDICATE ON THE
WIRE:
(i)
the name of the originator (i.e., the Investor); and
(ii)
the beneficiary, Tortoise Energy Infrastructure Corporation.
Please
also coordinate with your financial institution to ensure that transaction
fees
are not inadvertently
deducted from the wired funds prior to their receipt by
[BANK].
