TORTOISE CAPITAL RESOURCES CORPORATION (a Maryland corporation) 466,666.66 Preferred Shares 70,000 Warrants PURCHASE AGREEMENT
Exhibit k.7
TORTOISE CAPITAL RESOURCES CORPORATION
(a Maryland corporation)
466,666.66 Preferred Shares
70,000 Warrants
(a Maryland corporation)
466,666.66 Preferred Shares
70,000 Warrants
Dated: December 22, 2006
PURCHASE AGREEMENT
TORTOISE CAPITAL RESOURCES CORPORATION
(a Maryland corporation)
466,666.66 Preferred Shares
(Par Value $.001 Per Share)
70,000 Warrants
TORTOISE CAPITAL RESOURCES CORPORATION
(a Maryland corporation)
466,666.66 Preferred Shares
(Par Value $.001 Per Share)
70,000 Warrants
THIS PURCHASE AGREEMENT (the “Agreement”) is made and entered into as of 9:00 a.m. on December
22, 2006 by and among Tortoise Capital Resources Corporation, a Maryland corporation (the
“Company”), Tortoise Capital Advisors, LLC, a Delaware limited liability company (the “Adviser”),
and each of the undersigned prospective purchasers (individually, a “Purchaser” and collectively,
the “Purchasers”).
WHEREAS, the Company proposes, subject to the terms and conditions stated herein, to issue and
sell in a private placement 466,666.66 shares of preferred stock, par value $.001 per share (the
“Preferred Shares”), and 70,000 warrants (the “Warrants”) of the Company to certain accredited
investors as defined in Rule 501(a)(3), (4), (5), (6), (7) or (8) (the “Purchasers”) under the
Securities Act of 1933, as amended (the “1933 Act”), in reliance upon exemption from registration
pursuant to Section 4(2) of the 1933 Act, by means of and on the terms and in the manner set forth
herein.
WHEREAS, the 466,666.66 Preferred Shares and the 70,000 Warrants to be sold by the Company to
Purchasers hereunder are being sold in units in which each Preferred Share is being sold for $15.00
per share, and for each ten (10) Preferred Shares purchased by any Purchaser, such Purchaser shall
receive one and one-half (1.5) Warrants (each such unit of ten (10) Preferred Shares and 1.5
Warrants is hereinafter referred to as a “Unit” and all Preferred Shares and Warrants sold
hereunder are hereinafter called the “Securities”).
WHEREAS, Purchasers acknowledge that they, and any subsequent purchasers (“Subsequent
Purchasers”), that acquire Securities may only resell or otherwise transfer such Securities if such
Securities are hereafter registered under the 1933 Act or if an exemption from the registration
requirements of the 1933 Act is available (including any exemption afforded by the rules and
regulations promulgated under the 1933 Act by the Securities and Exchange Commission (the
“Commission”)). In addition, the Purchasers acknowledge they are only permitted to transfer the
Securities to persons who are “qualified purchasers” within the meaning of Section 3(c)(7) of the
Investment Company Act of 1940 (the “1940 Act”) and the rules promulgated thereunder and the
Subsequent Purchasers will only be permitted to transfer the Securities to persons who are
“qualified purchasers.”
WHEREAS, the Company has entered into an Investment Advisory Agreement (the “Investment
Advisory Agreement”) with the Adviser, which is subject to the Investment Advisers Act of 1940, as
amended, and the rules and regulations thereunder (collectively, the “Advisers Act”).
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SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company and the Adviser, jointly and
severally, represent and warrant to each Purchaser as of the date hereof and as of the Closing Time
referred to in Section 2(b) hereof, as follows (the Company and the Adviser are entering into a
separate Purchase Agreement dated of even date herewith, and the representations and warranties
made herein are made without giving effect to that agreement):
(i) Information. The Company has made available to each Purchaser: (i) a copy
of the Pre-Effective Amendment No. 1 on Form N-2 filed with the Commission by the Company on
November 9, 2006, relating to the anticipated offering of shares of common stock (the
“Common Stock”) of the Company; (ii) additional information about investments made by the
Company since the date of that filing; (iii) information about one or more investments
expected to be made by the Company; (iv) the Company’s Schedule of Investments as of
November 30, 2006; (v) the Articles Supplementary for the Series A Redeemable Preferred
Stock (the “Articles Supplementary”), in the form attached hereto as Exhibit A,
reflecting the rights of the Preferred Shares; (vi) the proxy statements and third quarter
shareholder report sent to Company shareholders; (vii) a pro forma capitalization table
reflecting the transaction contemplated herein; and (viii) the form of Warrant
(collectively, the “Disclosure Material”). The Disclosure Material does not include an
untrue statement of a material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were made,
not misleading.
(ii) Independent Accountants. The accountants for the Company are (A)
independent public accountants as required by the 1933 Act and the 1933 Act Regulations, (B)
in compliance with the applicable requirements relating to the qualification of accountants
under Rule 2-01 under Regulation S-X and (C) a registered public accounting firm as defined
by the Public Company Accounting Oversight Board (“PCAOB”), whose registration has not been
suspended or revoked and who has not requested such registration to be withdrawn.
(iii) Financial Statements. The unaudited financial statements published by
the Company and made available to the Purchasers, together with the related notes, present
fairly the financial position of the Company as of the date indicated, and the audited
financial statements of the Company have been prepared in conformity with generally accepted
accounting principles in the United States (“GAAP”) applied on a consistent basis throughout
the periods involved.
(iv) Good Standing of the Company. The Company has been duly organized and is
validly existing as a corporation in good standing under the laws of the State of Maryland
and has corporate power and authority to own, lease and operate its properties and to
conduct its business and to enter into and perform its obligations under this Agreement, the
Investment Advisory Agreement and the Warrants; and the Company 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
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to qualify or to be in good standing would not be reasonably likely to result in a
material adverse change in the condition, financial or otherwise, or in the business affairs
or business prospects of the Company or its Subsidiary, whether or not arising in the
ordinary course of business (a “Material Adverse Effect”).
(v) Subsidiaries. The Company has one subsidiary, Mowood, LLC (the
“Subsidiary”). The Company owns all of the equity interests in the Subsidiary. The
Subsidiary has been duly organized and is validly existing as a limited liability company in
good standing under the laws of the State of Delaware and has power and authority to own,
lease and operate its properties and to conduct its business; and the Subsidiary 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 be reasonably likely to result in a Material
Adverse Effect.
(vi) Capitalization. The Company is authorized to issue 100 million shares of
its Common Stock, of which 3,066,667 shares are currently issued and outstanding. The
Company is authorized to issue 10 million shares of Preferred Stock, of which no such shares
are currently issued and outstanding. In addition, the Company has previously issued
772,124 warrants to purchase shares of Common Stock. The shares of issued and outstanding
capital stock of the Company have been duly authorized and validly issued and are fully paid
and non-assessable; none of the outstanding shares of capital stock of the Company was
issued in violation of preemptive or other similar rights of any securityholder of the
Company. Except as contemplated herein or set forth above, as of the date of this Agreement
and as of the Closing Time, there are no outstanding options, warrants, scrip, rights to
subscribe to, or calls of any character whatsoever relating to, or securities or rights
convertible into or exercisable or exchangeable for, any shares of capital stock of the
Company or its Subsidiary, or arrangements by which the Company or its Subsidiary is or may
become bound to issue additional shares of capital stock of the Company or its Subsidiary
(whether pursuant to anti-dilution, “reset” or other similar provisions).
(vii) Authorization of Agreements. This Agreement, the Articles Supplementary,
the Warrants, and the Investment Advisory Agreement have each been duly authorized, executed
and delivered by the Company. This Agreement, the Articles Supplementary, and the
Investment Advisory Agreement are, and when issued the Warrants will be, valid and binding
obligations of the Company, enforceable against the Company in accordance with their terms,
except (i) enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or similar laws affecting creditors’ and
contracting parties’ rights generally and (ii) enforceability may be limited by general
principles of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(viii) Authorization and Description of Securities. The Securities have been
duly authorized for issuance and sale by the Company to the Purchasers pursuant to this
Agreement and, when issued and delivered by the Company pursuant to this Agreement
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against payment of the consideration set forth herein, will be validly issued and fully
paid and non-assessable and free and clear of any liens imposed by or through the Company;
the Preferred Shares and the Warrants conform to the rights set forth in the instruments
defining the same; no holder of the Securities will be subject to personal liability by
reason of being such a holder; and the issuance of the Securities is not subject to the
preemptive or other similar rights of any securityholder of the Company.
(ix) Absence of Defaults and Conflicts. The Company is not in violation of its
articles or by-laws or in default (and no event has occurred which, with notice or lapse of
time or both, would constitute a default) in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, lease or other agreement or instrument to
which the Company is a party or by which it may be bound, or to which any of the property or
assets of the Company is subject (collectively, “Agreements and Instruments”) except for
such defaults that would not be reasonably likely to result in a Material Adverse Effect;
and the execution, delivery and performance of this Agreement, the Articles Supplementary,
the Warrants and the Investment Advisory Agreement, and the consummation of the transactions
contemplated herein and therein (including the issuance and sale of the Securities) and
compliance by the Company with its obligations hereunder and thereunder have been duly
authorized by all necessary corporate action and do not and will not, whether with or
without the giving of notice or passage of time or both, conflict with or constitute a
breach of, or default under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company pursuant to, the Agreements and
Instruments, nor will such action result in any violation of the provisions of the articles
or by-laws of the Company, any applicable law, statute, rule, regulation, judgment, order,
writ or decree of any government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any of its assets, properties or operations.
(x) Absence of Proceedings. There is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Company, threatened, against the Company
or its Subsidiary, or that is reasonably likely to materially and adversely affect the
properties or assets of the Company or its Subsidiary or the consummation of the
transactions contemplated in this Agreement, the Articles Supplementary, the Warrants, and
the Investment Advisory Agreement, or the performance by the Company of its obligations
hereunder or thereunder. Neither the Company nor its Subsidiary is a party to or subject to
the provisions of, any order, writ, injunction, judgment or decree of any court or
government agency or instrumentality that has had or would reasonably be expected to have a
Material Adverse Effect.
(xi) Absence of Further Requirements. No filing with, or authorization,
approval, consent, license, order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the performance by the Company
of its obligations hereunder, in connection with the offering, issuance or sale of the
Securities hereunder or the consummation of the transactions contemplated by this Agreement,
except such as have been already obtained.
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(xii) Possession of Licenses and Permits. The Company possesses such permits,
licenses, approvals, consents and other authorizations (collectively, “Governmental
Licenses”) issued by the appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business now operated by it or proposed to be operated by it
immediately following the offering of the Securities, except where the failure so to possess
is not reasonably likely to, singly or in the aggregate, result in a Material Adverse
Effect; the Company is in compliance with the terms and conditions of all such Governmental
Licenses, except where the failure so to comply is not reasonably likely to, singly or in
the aggregate, result in a Material Adverse Effect; all of the Governmental Licenses are
valid and in full force and effect, except when the invalidity of such Governmental Licenses
or the failure of such Governmental Licenses to be in full force and effect is not
reasonably likely to, singly or in the aggregate, result in a Material Adverse Effect; and
the Company has not received any notice of proceedings relating to the revocation or
modification of any such Governmental Licenses which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would result in a Material Adverse
Effect.
(xiii) Employees and Executives. The Company is not aware that (A) any
executive, key employee or significant group of employees of the Company or its Subsidiary
plans to terminate employment with the Company or its Subsidiary or (B) any such executive
or key employee is subject to any noncompete, nondisclosure, confidentiality, employment,
consulting or similar arrangement that would be violated by the present or proposed business
activities of the Company, its Subsidiary or the Adviser.
(xiv) No General Solicitation. None of the Company or its respective
affiliates or any person acting on its or any of their behalf (i) has engaged or will
engage, in connection with the offering or sale of the Securities, in any form of general
solicitation or general advertising within the meaning of Rule 502(c) under the 1933 Act,
(ii) has, directly or indirectly, made any offers or sales of the Securities or solicited
any offers to buy the Securities, under any circumstances that would require registration of
the Securities under the 1933 Act or (iii) has issued any shares of Common Stock or shares
of any series of Preferred Stock or other securities or instruments convertible into,
exchangeable for or otherwise entitling the holder thereof to acquire shares of Common Stock
which would be integrated with the sale of the Securities to the Purchasers, nor will the
Company, its Subsidiary or any affiliates take any action or steps that would require
registration of the contemplated sale of the Securities under the 1933 Act or cause the
offering of the Securities to be so integrated with other offerings.
(xv) No 1933 Act Registration Required. (A) Subject to compliance by the
Purchasers with the representations and warranties set forth in Section 2 and the procedures
set forth in Section 5 hereof, it is not necessary in connection with the offer, sale and
delivery of the Securities by the Company to the Purchasers in the manner contemplated by
this Agreement to register the Securities under the 1933 Act.
(xvi) No 1940 Act Registration Required. Subject to compliance by the
Purchasers with the representations and warranties set forth in Section 2 and the procedures
set forth in Section 5 hereof, it is not necessary in connection with the offer,
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sale and delivery of the Securities to the Purchasers in the manner contemplated by
this Agreement and the Offering Memorandum to register the Company under the 1940 Act.
(xvii) Accounting Controls. The Company has established and maintains a system
of internal accounting controls sufficient to provide reasonable assurances that (A)
transactions will be executed in accordance with management’s authorization; (B)
transactions will be recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain accountability for
assets; (C) access to assets will be permitted only in accordance with management’s
authorization; (D) the recorded accountability for assets will be compared with the existing
assets at reasonable intervals and appropriate action will be taken with respect to any
differences; (E) material information relating to the Company will be promptly made known to
the officers responsible for establishing and maintaining the system of internal accounting
controls; and (F) any significant deficiencies or weaknesses in the design or operation of
internal accounting controls that could adversely affect the Company’s ability to record,
process, summarize and report financial data, and any fraud whether or not material that
involves management or other employees who have a significant role in internal controls,
will be adequately and promptly disclosed to the Company’s independent auditors and the
audit committee of the Company’s board of directors.
(xviii) No Extension of Credit. The Company has not, directly or indirectly,
extended credit, arranged to extend credit, or renewed any extension of credit, in the form
of a personal loan, to or for any director or executive officer of the Company, or to or for
any family member or affiliate of any director or executive officer of the Company.
(xix) Financial Condition; Taxes.
(a) The Company’s financial condition is, in all material respects, as
described in the Disclosure Material, except for changes in the ordinary course of
business and normal year-end adjustments that are not, in the aggregate, materially
adverse to the consolidated business or financial condition of the Company and its
Subsidiary taken as a whole. Except as otherwise described in the Disclosure
Material, there has been no (i) material adverse change to the Company’s business,
operations, properties, financial condition, prospects or results of operations
since the date of the Company’s most recent financial statements contained in the
Disclosure Material or (ii) change by the Company in its accounting principles,
policies and methods except as required by changes in GAAP.
(b) Each of the Company and the Subsidiary has prepared in good faith and duly
and timely filed all tax returns required to be filed by it and such returns are
complete and accurate in all material respects and the Company and its Subsidiary
have paid all taxes required to have been paid by them, except for taxes which they
reasonably dispute in good faith or the failure of which to pay has not had or would
not reasonably be expected to have a Material Adverse Effect.
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(xx) Fees. The Company is not obligated to pay any compensation or other fee,
cost or related expenditure to any underwriter, broker, agent or other representative in
connection with the transactions contemplated hereby. The Company will indemnify and hold
harmless the Purchasers from and against any claim by any person or entity alleging that any
Purchaser is obligated to pay any such compensation, fee, cost or related expenditure in
connection with the transactions contemplated hereby.
(xxi) Disclosure. There is no fact known to the Company which has had a
Material Adverse Effect, and there is no fact known to the Company that could reasonably be
expected to have a Material Adverse Effect, except as may have been disclosed in writing to
the Purchasers or as set forth in the Disclosure Material.
(xxii) Insurance. The Company maintains insurance for itself and its
Subsidiary in such amounts and covering such losses and risks as is reasonably prudent and
customary in the businesses in which the Company and its Subsidiary are engaged. No notice
of cancellation has been received for any of such policies and the Company is in compliance
with all of the terms and conditions thereof. The Company has no reason to believe that it
will not be able to renew its existing insurance coverage as and when such coverage expires
or to obtain similar coverage from similar insurers as may be necessary to continue its
business without a significant increase in cost.
(xxi) Transfer Taxes. No stock transfer or other taxes (other than income
taxes) are required to be paid in connection with the issuance and sale of any of the
Securities, other than such taxes for which the Company has established appropriate reserves
and intends to pay in full.
(xxii) Absence of Undisclosed Liabilities. As of the date hereof, the Company
does not have any material liabilities (absolute, contingent, accrued or otherwise) in
respect of the business other than: (a) liabilities reflected in the financial statements
made available to the Purchasers; (b) liabilities incurred since the date of the financial
statements in the ordinary course of business; (c) obligations of continued performance
under contracts and other commitments and arrangements entered into in the ordinary course
of the business; and (d) liabilities under this Agreement. As of the Closing Time, the
Company has in place a credit facility with a single lender permitting it to borrow up to
$15 million, of which approximately $12 million has been borrowed.
(b) Representations and Warranties of the Adviser. The Adviser represents to each Purchaser
as of the date hereof and, as of the Closing Time referred in Section 2(b) hereof, as follows (the
Company and the Adviser are entering into a separate Purchase Agreement dated of even date
herewith, and the representations and warranties made herein are made without giving effect to that
agreement):
(i) Good Standing. The Adviser has been duly organized and is validly existing
as a limited liability company in good standing under the laws of the State of Delaware, and
has limited liability company power and authority to own, lease and operate its properties
and to conduct its business and to enter into and perform its
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obligations under this Agreement; the Adviser also has limited liability company power
and authority to execute and deliver and perform its obligations under the Investment
Advisory Agreement; the Adviser is duly qualified to transact business as a foreign entity
and is in good standing in each other jurisdiction in which such qualification is required,
whether by reason of ownership or leasing of its property or the conduct of business, except
where the failure to qualify or be in good standing would not be reasonably likely to result
in a material adverse change in the condition, financial or otherwise, or in the business
affairs, business prospects or regulatory status of the Adviser, whether or not arising in
the ordinary course of business, or that would otherwise prevent the Adviser from carrying
out its obligations under the Investment Advisory Agreement (and “Advisor’s Material Adverse
Effect”).
(ii) Registration Under Advisers Act. The Adviser is duly registered with the
Commission as an investment adviser under the Advisers Act and is not prohibited by the
Advisers Act, the 1940 Act or the applicable published rules and regulations thereunder from
acting under the Investment Advisory Agreement for the Company. There does not exist any
proceeding or, to the Adviser’s knowledge, any facts or circumstances the existence of which
could lead to any proceeding which might adversely affect the registration of the Adviser
with the Commission.
(iii) Absence of Proceedings. There is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Adviser, threatened, against or affecting
the Adviser that might result in a Material Adverse Effect or an Adviser’s Material Adverse
Effect, or which might materially and adversely affect the properties or assets of the
Company or the consummation of the transactions contemplated in this Agreement or the
performance by the Adviser of its obligations hereunder.
(iv) Absence of Defaults and Conflicts. The Adviser is not in violation of its
limited liability company operating agreement or in default in the performance or observance
of any obligation, agreement, covenant or condition contained in any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or
instrument to which the Adviser is a party or by which it may be bound, or to which any of
the property or assets of the Adviser is subject (collectively, the “Adviser Agreements and
Instruments”), or in violation of any law, statute, rule, regulation, judgment, order or
decree except for such violations or defaults that would not be reasonably likely to result
in a Material Adverse Effect or an Adviser’s Material Adverse Effect; and the execution,
delivery and performance of this Agreement and the consummation of the transactions
contemplated herein (including the issuance and sale of the Securities and the use of the
proceeds from the sale of the Securities) and compliance by the Adviser with its obligations
hereunder and under the Investment Advisory Agreement have been duly authorized by all
necessary corporate action and do not and will not, whether with or without the giving of
notice or passage of time or both, conflict with or constitute a breach of, or default or
Adviser Repayment Event (as defined below) under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the Adviser pursuant to,
the Adviser Agreements and Instruments, nor will such action result in any violation of the
provisions of the limited liability
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company operating agreement of the Adviser, or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government, government instrumentality or
court, domestic or foreign, having jurisdiction over the Adviser or any of its assets,
properties or operations. As used herein, an “Adviser Repayment Event” means any event or
condition which gives the holder of any note, debenture or other evidence of indebtedness
(or any person acting on such holder’s behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by the Adviser.
(v) Authorization of Agreements. This Agreement and the Investment Advisory
Agreement have been duly authorized, executed and delivered by the Adviser. This Agreement
and the Investment Advisory Agreement are valid and binding obligations of the Adviser,
enforceable against it in accordance with its terms, except (i) enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or similar laws affecting creditors’ and contracting parties’ rights generally
and (ii) enforceability may be limited by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
(vi) Absence of Further Requirements. No filing with, or authorization,
approval, consent, license, order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the performance by the Adviser
of its obligations hereunder, in connection with the offering, issuance or sale of the
Securities hereunder or the consummation of the transactions contemplated by this Agreement,
except such as have already been made or obtained.
(vii) Financial Resources. The Adviser has the financial resources available to
it necessary for the performance of its services and obligations as contemplated under this
Agreement and the Investment Advisory Agreement.
(viii) Possession of Licenses and Permits. The Adviser possesses such
Governmental Licenses issued by the appropriate federal, state, local or foreign regulatory
agencies or bodies necessary to conduct the business now operated by it, except where the
failure so to possess would not, singly or in the aggregate, result in a Material Adverse
Effect or an Adviser’s Material Adverse Effect; the Adviser is in compliance with the terms
and conditions of all such Governmental Licenses, except where the failure so to comply
would not, singly or in the aggregate, result in a Material Adverse Effect or an Adviser’s
Material Adverse Effect; all of the Governmental Licenses are valid and in full force and
effect, except when the invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not, singly or in the aggregate,
result in a Material Adverse Effect or an Adviser’s Material Adverse Effect; and the Adviser
has not received any notice of proceedings relating to the revocation or modification of any
such Governmental Licenses which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a Material Adverse Effect or an
Adviser’s Material Adverse Effect.
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(ix) Employment Status. The Adviser is not aware that (A) any executive, key
employee or significant group of employees of the Adviser plans to terminate employment with
the Adviser (B) any such executive or key employee is subject to any non-compete,
nondisclosure, confidentiality, employment, consulting or similar agreement that would be
violated by the present or proposed business activities of the Company or the Adviser except
where such termination or violation would not constitute a Material Adverse Effect or an
Adviser’s Material Adverse Effect.
(x) Internal Controls. The Adviser operates a system of internal controls
sufficient to provide reasonable assurance that (A) transactions effectuated by it under the
Investment Advisory Agreement are executed in accordance with its management’s general or
specific authorization; and (B) access to the Company’s assets is permitted only in
accordance with its management’s general or specific authorization.
(c) Representations and Warranties by each Purchaser. Each Purchaser, severally and not
jointly, represents and warrants to the Company and the Adviser as of the date hereof and as of the
Closing Time referred to in Section 2(b) hereof, as follows:
(i) Securities Law Representations and Warranties.
(A) The Purchaser (i) is an “accredited purchaser” as defined in Rule 501(a)(3), (4), (5),
(6), (7) or (8) under the 1933 Act, (ii) has the knowledge, sophistication and experience necessary
to make, and is qualified to make decisions with respect to, investments in securities representing
an investment decision like that involved in the purchase of the Securities and investments in
companies comparable to the Company, (iii) can bear the economic risk of a total loss of its
investment in the Securities and (iv) has requested, received, reviewed and considered all
information it deemed relevant in making an informed decision to purchase the Securities, including
the Disclosure Material;
(B) The Purchaser is acquiring the Securities for its own account and not with a view towards,
or for resale in connection with, the public sale or distribution thereof;
(C) The Purchaser was not organized for the specific purpose of acquiring the Securities;
(D) The Purchaser will not, directly or indirectly, offer, sell, pledge, transfer or otherwise
dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of
the Securities except in compliance with the 1933 Act, applicable state securities laws and the
respective rules and regulations promulgated thereunder;
(E) The Purchaser understands that the Securities are being offered and sold in reliance on
specific exemptions from the registration requirements of the United States federal and state
securities laws and that the Company is relying upon the truth and accuracy of, and the Purchaser’s
compliance with, representations, warranties, agreements, acknowledgements and understandings of
the Purchaser set forth herein in order to determine the availability of such exemptions and the
eligibility of the Purchaser to acquire the Securities;
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(F) The Purchaser understands that no United States federal or state agency or any other
government or governmental agency has passed on or made any recommendation or endorsement of the
Securities or the fairness or suitability of an investment in the Securities nor have such
authorities passed upon or endorsed the merits of this transaction;
(G) The Purchaser acknowledges that the Company has represented that no action has been or
will be taken in any jurisdiction outside the United States by the Company that would permit an
offering of the Securities, or possession or distribution of offering materials in connection with
the issue of the Securities, in any jurisdiction outside the United States where action for that
purpose is required. If the Purchaser is located or domiciled outside the United States it agrees
to comply with all applicable laws and regulations in each foreign jurisdiction in which it
purchases, offers, sells or delivers Securities or has in its possession or distributes any
offering material, in all cases at its own expense;
(H) The Purchaser has been furnished with all materials relating to the business, financial
condition, results of operations, properties, management, operations and prospects of the Company,
including materials relating to the terms and conditions of the offer and sale of the Securities
which have been requested by the Purchaser. The Purchaser has been afforded the opportunity to ask
questions of the Company and has received answers from an authorized representative of the Company
that are satisfactory to the Purchaser. Notwithstanding the foregoing, in entering into this
Agreement, the Purchaser represents that it is relying solely on the representations, warranties,
covenants and agreements set forth in this Agreement, which document supersedes and replaces any
other written or oral information communicated to the Purchaser;
(I) The Purchaser has independently evaluated the merits of its decision to purchase
Securities pursuant to this Agreement; and
(J) The Purchaser is a “Qualified Purchaser” as defined in Section 2(a)(51) of, and of related
rules under, the 1940 Act, as amended and that either: (i) the information related to the status of
the Purchaser as a Qualified Purchaser provided in the subscription agreement delivered to the
Company as part of the prior offering by the Company of its common stock and warrants has not
changed and is true and complete in all respects as of the date of this Agreement, or (ii) a
subscription agreement has been completed, executed, and delivered to the Company confirming the
status of the Purchaser as a Qualified Purchaser as of the date of this Agreement.
(ii) Legends.
(A) The Purchaser understands that, until the end of the applicable holding period under Rule
144(k) of the 1933 Act (or any successor provision) with respect to the Securities, any stock
certificate representing the Securities shall bear a legend in the form attached hereto as Exhibit
C. That legend shall be removed if, in connection with a sale transaction, such holder provides
the Company with (i) confirmation that the purchaser is a “qualified purchaser” as defined in
Section 2(a)(51)(A) of the 1940 Act, if the transaction is to take place prior to the Company being
subject to the 1940 Act, and (ii) either (A) an opinion of counsel reasonably acceptable to the
Company to the effect that a public sale, assignment or
11
transfer of the Securities may be made without registration under the 1933 Act, or (B) the
transaction is to take place after expiration of the applicable two-year holding period under Rule
144(k) of the 1933 Act (or any successor rule); provided that the Purchaser is not and has not been
within three months prior to such date, an “affiliate” of the Company (as such term is defined in
Rule 144 of the 1933 Act). The Company may make a notation on its records and/or provide
instruction to its transfer agent regarding the Company’s stock transfer records, consistent with
the provisions of this paragraph.
(B) The Purchaser understands that, in the event Rule 144(k) as promulgated under the 1933 Act
(or any successor rule) is amended to change the two-year period under Rule 144(k) (or the
corresponding period under any successor rule), (i) each reference in this Section 1(c)(ii)
to “two years” or the “two-year period” shall be deemed for all purposes of this Agreement to be
references to such changed period, and (ii) all corresponding references in the Securities shall be
deemed for all purposes to be references to the changed period, provided that such changes shall
not become effective if they are otherwise prohibited by, or would otherwise cause a violation of,
the then-applicable federal securities laws.
(iii) Authorization; Enforcement; Validity. The Purchaser has full right,
power, authority and capacity (corporate, statutory or otherwise) 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. This
Agreement constitutes a valid and binding obligation of the Purchaser enforceable against
the Purchaser in accordance with its terms, except (i) to the extent rights to indemnity and
contribution may be limited by state or federal securities laws or the public policy
underlying such laws; (ii) enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or similar laws affecting
creditors’ and contracting parties’ rights generally and (iii) enforceability may be limited
by general principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
(iv) Certain Trading Limitations. The Purchaser (i) represents that on and
from the date the Purchaser first became aware of the transaction contemplated herein until
the date hereof he, she or it has not and (ii) covenants that for the period commencing on
the date hereof and ending on the public announcement of the transaction contemplated herein
he, she or it will not, engage in any hedging or other transaction which is designed to or
could reasonably be expected to lead to or result in, or be characterized as, a sale, an
offer to sell, a solicitation of offers to buy, disposition of, loan, pledge or grant of any
right with respect to (collectively, a “Disposition”) the Securities of the Company by the
Purchaser or any other person or entity in violation of the 1933 Act. Such prohibited
hedging or other transactions would include without limitation effecting any short sale or
having in effect any short position (whether or not such sale or position is against the box
and regardless of when such position was entered into) or any purchase, sale or grant of any
right (including without limitation any put or call option) with respect to the Securities
of the Company or with respect to any security (other than a broad-based market basket or
index) that includes, relates to or derives any significant part of its value from the
Securities of the Company.
12
(v) No Advice. The Purchaser understands that nothing in this Agreement or any
other materials presented to the Purchaser in connection with the purchase and sale of the
Securities constitutes legal, tax or investment advice. The Purchaser 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 the Securities.
SECTION 2. Sale and Delivery to Purchasers; Closing.
(a) Securities. On the basis of the representations and warranties herein contained,
the Company agrees to sell to each Purchaser, severally and not jointly, at a price per share of
$15.00, the number of Securities set forth in Schedule A opposite the name of such Purchaser.
(b) Payment. Payment of the purchase price for, and delivery of certificates for, the
Preferred Shares shall be made at the offices of Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxx LLP, 0000 Xxxx
Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000, or at such other place as shall be acceptable to the Company,
at 2:00 P.M. (Central time) on December 22, 2006, or such other time not later than ten business
days after such date as shall be acceptable to the Company (such time and date of payment and
delivery being herein called “Closing Time”).
Payment shall be made to the Company from each of the Purchasers by wire transfer of
immediately available funds to a bank account designated by the Company, against delivery to the
Purchasers for the respective accounts of the Purchasers of certificates for the Securities to be
purchased by them.
(c) Denominations; Registration. Certificates for the Preferred Shares shall be in
such denominations and registered in such names as are set forth on Schedule A.
SECTION 3. Covenants.
(a) Payment of Expenses. The Company and the Adviser, jointly and severally, will pay
all expenses incident to the performance of their obligations under this Agreement, including (i)
the preparation, issuance and delivery of the certificates for the Securities, including any stock
or other transfer taxes and any stamp or other duties payable upon the sale, issuance or delivery
of the Securities, (ii) the fees and disbursements of the Company’s, and the Adviser’s counsel,
accountants and other advisors, (iii) payment of any Blue Sky filing fees and the reasonable fees
and disbursements of counsel in connection with the preparation of any Blue Sky Survey and any
supplement thereto, (iv) the fees and expenses of any transfer agent or registrar for the
Securities, and (v) the costs and expenses of the Company relating to the offering of the
Securities. At the Closing Time, the Company will also pay all fees, costs and expenses (including
legal fees and expenses of a single law firm selected to represent Purchasers) incurred by all
Purchasers in the review and negotiation of this Agreement, the Articles Supplementary for the
Preferred Shares and the Warrants.
(b) Commitment to Vote. The Company has called a meeting of its holders of Common
Stock to authorize the issuance of the Warrants. The Purchasers are each holders of Common Stock.
Each Purchaser covenants and agrees that it will, at the meeting called to authorize the issuance
of the Warrants, vote his, her, or its shares of Common Stock in
13
accordance with the recommendation of the Board of Directors of the Company to authorize the
issuance of the Warrants. The Purchasers each hereby grant to the Company a power of attorney to
vote his, her, or its shares of Common Stock in favor of authorization of the issuance of the
Warrants at the meeting called for that purpose and acknowledge that this power of attorney is
coupled with an interest and is irrevocable. Further, each Purchaser hereby expressly authorizes
the Company to issue 766,666.66 additional shares of Series A Preferred Stock, and an additional
115,000 warrants to acquire common stock of the Company, pursuant to a purchase agreement entered
into of even date herewith. The authorization provided by the Purchasers is to be deemed a
unanimous consent of each such Purchaser, as though such consent were obtained at a meeting called
for such purpose.
(c) Additional Warrant Issuance. In the event the Preferred Shares are not redeemed
and paid in full by June 30, 2007, the Company shall issue to the holders thereof additional
warrants, containing terms identical to the Warrants, in an aggregate number equal to the number of
Warrants issued at the Closing Time (or such lesser amount as may be required by Section 61(a)(3)
of the 1940 Act). Such additional warrants shall be issued by the Company to the holders of the
Preferred Shares as of the end of each calendar month beginning July 31, 2007 and continuing
through March 31, 2008 at the rate of one-ninth (1/9th) of the aggregate number of
Warrants issuable pursuant to the preceding sentence. Except as contemplated by this paragraph,
the Company shall not issue any additional warrants, options, or rights until all Warrants issuable
pursuant to this paragraph have been issued. In the event the Company’s ability to issue
additional warrants pursuant to this paragraph is constrained by the 1940 Act, the Company will
issue the full amount of such warrants at the first point in time at which it is able to do so in
compliance with the 1940 Act.
(d) Repurchase Right. In the event the Company has not consummated, by the close of
business on January 2, 2007, the investment contemplated by the December 20, 2006 term sheet
entered into with Millenium Midstream Energy, LLC, the Company shall repurchase the Preferred
Shares and Warrants for an amount equal to the purchase price set forth on Schedule A plus
the dividend that has accrued on the Preferred Shares from the Closing Time through the date of
such repurchase. Upon payment of such amounts, the Preferred Shares and the Warrants shall be
deemed cancelled and of no further force or effect. If all the Preferred Shares and Warrants are
repurchased pursuant to the first sentence of this Section 3(d), the Company shall not be obligated
to pay any additional amounts or redemption premium as such concepts may be reflected in the
Articles Supplementary of the Preferred Shares.
(e) Securities Filings. The Company agrees with each Purchaser that it will,
following the Closing:
(i) file a Form D with respect to the Securities issued at the Closing Time as required under
Regulation D and to provide a copy thereof to such Purchaser promptly after any request therefor;
and
(ii) take such action as the Company reasonably determines upon the advice of counsel is
necessary to qualify the Preferred Shares and Warrants issued at the Closing Time for
14
sale under applicable state or “blue-sky” laws or obtain an exemption therefrom, and shall
provide evidence of any such action to such Purchaser at such Purchaser’s request.
(f) Reservation of Common Stock. The Company shall, at the Closing Time, have
authorized and reserved for issuance, free from any preemptive rights, a number of shares of Common
Stock equal to the maximum number of shares of Common Stock issuable upon exercise of the
outstanding Warrants in full at the exercise price then in effect, in each such case without regard
to any limitation or restriction on such conversion or exercise that may be set forth in the
documents contemplated hereby.
(g) Use of Proceeds. The Company shall use the proceeds from the sale of the
Preferred Shares for: (i) the purchase of approximately 1,000,000 common units, at approximately
$20.00 per unit, of a newly formed partnership that is to acquire Millennium Midstream Energy LLC
and its affiliates; and (ii) thereafter, up to $1 million to reduce debt, make other investments,
or for working capital.
(h) Shareholder Approval. From and after the Effective Time until such time as the
Company completes an Initial Public Offering (as defined in the Articles Supplementary), the
Company shall use commercially reasonable efforts to seek authorization of its common stockholders
for the issuance of the Warrants (“Stockholder Approval”) and, in furtherance thereof, the
Company shall, at the first meeting of its stockholders after the Closing Time, recommend to its
stockholder that such approval be given. In the event that Stockholder Approval is not obtained at
the next meeting of the Company’s stockholders, the Company shall continue to use commercially
reasonable efforts to seek Stockholder Approval as soon as practicable after such meeting.
(i) Registration Rights. The Company shall use commercially reasonable efforts to
enter into a Registration Rights Agreement with the Purchasers as soon as practicable following the
date hereof that is consistent with the registration rights granted previously by the Company;
provided, however, that the Purchasers will be subordinate to the holders of registration rights
granted previously with respect to piggyback rights. Pursuant to the Registration Rights
Agreement, the Company shall be required to register such shares for resale promptly following the
last to occur of: (i) the earlier to occur of (A) June 8, 2007, or (B) nine months after completion
of the Initial Public Offering; and (ii) the exercise of Warrants resulting in the issuance of at
least 66,666 shares of common stock of the Company. The filing of such registration statement
shall be accompanied by an agreement between the Company and the Purchasers providing customary
indemnification, black-out, and expense allocation provisions that are consistent with such
provisions included in the registration rights agreement granted previously by the Company.
SECTION 4. Conditions of Purchasers’ Obligations. The obligations of the parties
hereunder are subject to the accuracy of the representations and warranties of the parties
contained in Section 1 hereof or in certificates of any party, the performance by the parties of
their respective covenants and other obligations hereunder, and to the following further
conditions:
15
(a) Officers’ Certificates. (i) At Closing Time, there shall not have been, since the
date hereof, any material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company, whether or not arising in the
ordinary course of business, and the Purchasers shall have received a certificate of the president
of the Company, dated as of Closing Time, to the effect that (i) there has been no such material
adverse change, (ii) the representations and warranties in Section 1(a) hereof are true and correct
with the same force and effect as though expressly made at and as of Closing Time, and (iii) the
Company has complied with all agreements and satisfied all conditions on its part to be performed
or satisfied at or prior to Closing Time.
(ii) At Closing Time, there shall not have been, since the date hereof, any material adverse
change in the condition, financial or otherwise, or in the business affairs or business prospects
of the Advisor, whether or not arising in the ordinary course of business, and the Purchasers shall
have received a certificate of the president of the Advisor, dated as of Closing Time, to the
effect that (i) there has been no such material adverse change, (ii) the representations and
warranties in Section 1(a) and 1(b) hereof are true and correct with the same force and effect as
though expressly made at and as of Closing Time, and (iii) the Advisor has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied at or prior to
Closing Time.
(b) Confirmation of Purchaser Representations. At Closing Time, payment by each
Purchaser of the purchase price set forth on Schedule A to be paid by such Purchaser shall be
deemed to provide confirmation by such Purchaser of the representations set forth in Section 1(c)
above and confirm compliance by such Purchaser with all agreements and satisfaction of all
conditions on its part to be performed or satisfied at or prior to Closing Time.
(c) No Pending Litigation. At the Closing Time, no legal action, suit, or proceeding
shall be pending or overtly threatened seeking to restrain or prohibit the performance of any party
hereto of its obligations under this Agreement or to prohibit the transactions contemplated by this
Agreement.
(d) Termination of Agreement. If any condition to the obligations of a Purchaser
specified in this Section shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by such Purchaser (but only as to such Purchaser) by notice to the
Company at any time at or prior to Closing Time and such termination shall be without liability of
any party to any other party. If any condition to the obligations of the Company and Adviser
specified in this Section shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Company as to any Purchaser by notice to such Purchaser at any
time at or prior to Closing Time and such termination as to such Purchaser shall be without
liability of any party to any other party.
SECTION 5. Subsequent Offers and Resales of the Securities. Each Purchaser and the
Company hereby establish and agree to observe the following procedures in connection with the offer
and sale of the Securities:
(i) Offers and Sales. Offers and sales of the Securities shall be made to such
persons and in such manner as is contemplated herein. No offers, sales or deliveries of
16
any of the Securities will be made in any jurisdiction outside the United States except
under circumstances that will result in compliance with the applicable laws thereof.
(ii) No General Solicitation. No general solicitation or general advertising
(within the meaning of Rule 502(c) under the 0000 Xxx) will be used in the United States in
connection with the offering or sale of the Securities.
(iii) Purchases by Non-Bank Fiduciaries. In the case of a future non-bank
purchaser of a Security acting as a fiduciary for one or more third parties, each third
party must, in the judgment of the Company, be a “qualified institutional buyer” within the
meaning of Rule 144A under the 1933 Act (a “Qualified Institutional Buyer”).
(iv) Purchaser as Qualified Purchasers. Each future purchaser of a Security
shall, in the reasonable judgment of the Company, be a qualified purchaser (a “Qualified
Purchaser”) as defined in Section 2(a)(51)(A) of the 1940 Act and related rules.
(v) No Benefit Plans Purchasers. No future purchaser of a Security shall, in
the judgment of the Company, be a benefit plan investor within the meaning of the applicable
plan asset regulations, whether or not subject to Title I of ERISA or Section 4975 of the
Code.
(vi) Purchaser Notification. Reasonable steps will be taken by any Purchaser
selling the Securities to inform persons acquiring Securities that the Securities (A) have
not been and will not be registered under the 1933 Act, (B) are being sold to them without
registration under the 1933 Act in reliance on Rule 144A, and (C) may not be offered, sold
or otherwise transferred except (1) to the Company, (2) inside the United States in
accordance with (x) Rule 144A to a person whom the seller reasonably believes is a Qualified
Institutional Buyer that is purchasing such Securities for its own account or for the
account of a Qualified Institutional Buyer to whom notice is given that the offer, sale or
transfer is being made in reliance on Rule 144A or (y) pursuant to another available
exemption from registration under the 1933 Act, (3) until such time as the Company elects to
become a business development company under the 1940 Act, to a Qualified Purchaser and (4)
until such time as the Preferred Shares qualify as “publicly offered securities” under the
Department of Labor Regulation Section 2510.3-101 (the “Plan Asset Regulations”), the
Securities may not be sold or transferred to any transferee that is a benefit plan investor
within the meaning of the applicable plan asset regulations, whether or not subject to Title
I of ERISA or Section 4975 of the Code.
(vii) Minimum Principal Amount. No sale of the Securities to any one Purchaser
will be for less than U.S. $1,000 principal amount and no Security will be issued in a
smaller principal amount. If the Purchaser is a non-bank fiduciary acting on behalf of
others, each person for whom it is acting must purchase at least U.S. $1,000 principal
amount of the Securities.
SECTION 6. Representations, Warranties and Agreements to Survive. All
representations, warranties and agreements contained in this Agreement or in certificates of
officers of the Company and the Adviser submitted pursuant hereto, shall remain operative and
17
in full force and effect regardless of (i) any investigation made by or on behalf of any
Purchaser, any person controlling any Purchaser, its officers or directors or any person
controlling the Company and (ii) delivery of and payment for the Securities.
SECTION 7. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by any standard form
of telecommunication. Notices to the Purchasers shall be directed to the addresses set forth on
the signature page to this Agreement; and notices to the Company and the Adviser shall be directed
to them at Tortoise Capital Resources Corporation, 00000 Xxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxx
Xxxx, Xxxxxx 00000, attention Xxxxx Xxxxxxx, with a copy to Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxx, L.L.P,
0000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxx Xxxx, XX 00000, attention Xxxxx Xxxxxx, Esq.
SECTION 8. Parties. This Agreement shall inure to the benefit of and be binding upon
the Purchasers and the Company and their respective successors. Nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any person, firm or corporation, other
than the Purchasers, the Company and the Adviser any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein contained. This Agreement and all
conditions and provisions hereof are intended to be for the sole and exclusive benefit of the
Purchasers, the Company and the Adviser and their respective successors.
SECTION 9. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 10. TIME. TIME SHALL BE OF THE ESSENCE OF THIS AGREEMENT. EXCEPT AS OTHERWISE
SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 11. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same Agreement.
SECTION 12. Effect of Headings. The Section headings herein are for convenience only
and shall not affect the construction hereof.
SECTION 13. Independent Nature of Purchasers’ Obligations and Rights. The obligations
of each Purchaser hereunder are several and not joint with the obligations of the other Purchasers
hereunder, and no Purchaser shall be responsible in any way for the performance of the obligations
of any other Purchaser hereunder. Nothing contained herein or in any other agreement or document
delivered at the Closing Time, and no action taken by any Purchaser pursuant hereto or thereto,
shall be deemed to constitute the Purchasers as a partnership, an association, a joint venture or
any other kind of entity, or create a presumption that the Purchasers are in any way acting in
concert with respect to such obligations or the transactions contemplated by this Agreement. Each
Purchaser shall be entitled to protect and enforce its rights, including without limitation the
rights arising out of this Agreement or the other documents contemplated hereby, and it shall not
be
18
necessary for any other Purchaser to be joined as an additional party in any proceeding for such
purpose.
SECTION 14. Remedies. The Company acknowledges and agrees that a breach by it of its
obligations hereunder will cause irreparable harm to each Purchaser and that the remedy or remedies
at law for any such breach will be inadequate and agrees, in the event of any such breach, in
addition to all other available remedies, such Purchaser shall be entitled to an injunction
restraining any breach and requiring immediate and specific performance of such obligations without
the necessity of showing economic loss. Any party incurring any cost or expense in the successful
enforcement of any right granted hereunder (or defending against enforcement of an alleged right)
shall be entitled to reimbursement of any such cost or expense (including reasonable attorneys’
fees) from the party against whom successful enforcement is obtained (or which sought
unsuccessfully to enforce an alleged right).
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
19
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts,
will become a binding agreement between the Purchasers, the Company and the Adviser in accordance
with its terms.
| Very truly yours, | ||||||
| COMPANY: | ||||||
| TORTOISE CAPITAL RESOURCES CORPORATION | ||||||
| By | ||||||
| Name: | Xxxxx X. Xxxxxxx | |||||
| Title: | President | |||||
| ADVISER: | ||||||
| TORTOISE CAPITAL ADVISORS, LLC | ||||||
| By | ||||||
| Name: | Xxxxx X. Xxxxxxx | |||||
| Title: | Member | |||||
20
| PURCHASERS: | ||||||
| XXXXXX X. XXXXXXX TRUST A U/T/A DATED 11/24/92 | ||||||
| By: | ||||||
| Name: | ||||||
| Address: | 00000 X. Xxxx Xxxxx | |||||
| Xxxxxx, XX 00000 | ||||||
| XXXXX XXXXX REVOCABLE TRUST U/A DTD 1/28/79 AS AMENDED | ||||||
| By: | ||||||
| Name: | ||||||
| Address: | 8900 Xxxxx Xxxx Xxxx | |||||
| Xxxxx 000 | ||||||
| Xxxxxxx, XX 00000 | ||||||
| XXXX XXXXXXX AND XXXXXXX XXXX XXXXXXX TEN ENT | ||||||
| By: | ||||||
| Name: | ||||||
| Address: | 308 N.E. Wicklow Court | |||||
| Lee’s Summit, MO 64064 | ||||||
| XXXX X. XXXXX | ||||||
| By: | ||||||
| Name: | ||||||
| Address: | 11000 Xxxxx | |||||
| Xxxxxxx, XX 00000 | ||||||
| XXX XXXXXXXX | ||||||
| By: | ||||||
| Name: | ||||||
| Address: | 1600 Xxxxxxxx | |||||
| Xxxxx 0000 | ||||||
| Xxxxxx, XX 00000 | ||||||
21
| CF PARTNERS, LP | ||||||
| By: | ||||||
| Name: | ||||||
| Address: | 8900 Xxxxx Xxxx Xxxx | |||||
| Xxxxx 000 | ||||||
| Xxxxxxx, XX 00000 | ||||||
| XXXXX XXXXXXX & XXX X. XXXXXXX JTWROS | ||||||
| By: | ||||||
| Name: | ||||||
| Address: | 8900 Xxxxx Xxxx Xxxx | |||||
| Xxxxx 000 | ||||||
| Xxxxxxx, XX 00000 | ||||||
| XXX XXXXXXX & XXXXXXX XXXXXXX TEN ENT | ||||||
| By: | ||||||
| Name: | ||||||
| Address: | 8900 Xxxxx Xxxx Xxxx | |||||
| Xxxxx 000 | ||||||
| Xxxxxxx, XX 00000 | ||||||
| XXXXX XXXXXXX TRUST | ||||||
| By: | ||||||
| Name: | ||||||
| Address: | 8900 Xxxxx Xxxx Xxxx | |||||
| Xxxxx 000 | ||||||
| Xxxxxxx, XX 00000 | ||||||
| XXXX XXXXXXX REVOCABLE TRUST DTD 10/24/79 AS AMENDED | ||||||
| By: | ||||||
| Name: | ||||||
| Address: | 8900 Xxxxx Xxxx Xxxx | |||||
| Xxxxx 000 | ||||||
| Xxxxxxx, XX 00000 | ||||||
22
| XXXXXX X. XXXX REVOCABLE TRUST DTD 10/9/00 | ||||||
| By: | ||||||
| Name: | ||||||
| Address: | 9800 Xxxxxx Xxxx | |||||
| Xxxxxx, XX 00000 | ||||||
| XXXXX XXXXXXXXXX | ||||||
| By: | ||||||
| Name: | ||||||
| Address: | 5500 Xxxxxxxxx Xxxxx | |||||
| Xxxxxx Xxxx, XX 00000 | ||||||
| XXXXXXXX X. XXXXXX | ||||||
| By: | ||||||
| Name: | ||||||
| Address: | 1000 X. 000xx Xxxxxxx | |||||
| Xxxxxx Xxxx, XX 00000 | ||||||
| XXXX XXXXXXXX DTD 8/21/1992 AS AMENDED | ||||||
| By: | ||||||
| Name: | ||||||
| Address: | 1000 Xxxxxx Xxxxxx | |||||
| Xxxxx 000 | ||||||
| Xxxxxx Xxxx, XX 00000 | ||||||
| XXXXX X. XXXXXX REVOCABLE TRUST U/A DTD 4/94 | ||||||
| By: | ||||||
| Name: | ||||||
| Address: | 5300 Xxxxxx Xxxxx | |||||
| Xxxxxx Xxxx, XX 00000 | ||||||
23
| XXXXX XXXXXX XXXXX XXXXXXXXX TRUST U/A 9/20/78 AS AMENDED | ||||||
| By: | ||||||
| Name: | ||||||
| Address: | 6000 Xxxx Xxxxx | |||||
| Xxxxxxx Xxxxxxx, XX 00000 | ||||||
| IRVINE X. XXXXXXXX XX. REVOCABLE TRUST DTD 5/16/96 | ||||||
| By: | ||||||
| Name: | ||||||
| Address: | 2600 Xxxxx Xxxx. | |||||
| Xxxxx 000 | ||||||
| Xxxxxx Xxxx, XX 00000 | ||||||
| X.X.X. TRUST DTD 7/6/72 | ||||||
| By: | ||||||
| Name: | ||||||
| Address: | 410 Xxxxxxx Xxxx | |||||
| X.X. Xxx 000000 | ||||||
| Xxxxxx Xxxx, XX 00000 | ||||||
| JPJ INVESTMENTS | ||||||
| By: | ||||||
| Name: | ||||||
| Address: | 800 X. 00xx Xxxxxx | |||||
| Xxxxx 000 | ||||||
| Xxxxxx Xxxx, XX 00000 | ||||||
| XXXXX & XXXXX XXXXXXX | ||||||
| By: | ||||||
| Name: | ||||||
| Address: | 5000 X. 00xx Xxxxxx | |||||
| Xxxxxxx Xxxxxxx, XX 00000 | ||||||
24
| XXXXXXX X. XXXXX REV TRUST U/A DTD 6/8/93 AS AMENDED | ||||||
| By: | ||||||
| Name: | ||||||
| Address: | 8100 X. 00xx Xxxxxx | |||||
| Xxxxxxxx Xxxx, XX 00000 | ||||||
| XXXXXX XXXXXX | ||||||
| By: | ||||||
| Name: | ||||||
| Address: | 4200 Xxxxxxxx Xxxxx | |||||
| Xxxxx 000 | ||||||
| Xxxxxxx Xxxxxxx, XX 00000 | ||||||
| XXXXXXXXXXX X. XXXX & XXXXX X. JTWROS | ||||||
| By: | ||||||
| Name: | ||||||
| Address: | 4800 Xxxx Xxxxxx | |||||
| Xxxxx 000 | ||||||
| Xxxxxx Xxxx, XX 00000 | ||||||
| XXXXXX X. XXXXXXXX & XXXXXXX X. XXXXXXXX JTWROS | ||||||
| By: | ||||||
| Name: | ||||||
| Address: | 12000 Xxxxxxxx | |||||
| Xxxxxxx, XX 00000-0000 | ||||||
| XXXXXXXX X. XXXXX IRREV. TRUST U/A 7/20/05 | ||||||
| By: | ||||||
| Name: | ||||||
| Address: | 2300 Xxxxx Xxxx. | |||||
| Xxxxx 0000 | ||||||
| Xxxxxx Xxxx, XX 00000 | ||||||
25
| XXXXX X. XXXXXX REV. TRUST DTD 10/19/89 AS AMENDED | ||||||
| By: | ||||||
| Name: | ||||||
| Address: | 11000 Xxxxx Xxxx | |||||
| Xxxxxxx, XX 00000 | ||||||
| PFF, INC. | ||||||
| By: | ||||||
| Name: | ||||||
| Address: | 800 X. 00xx Xxxxxx | |||||
| Xxxxx 000 | ||||||
| Xxxxxx Xxxx, XX 00000 | ||||||
| XXXX FAMILY TRUST | ||||||
| By: | ||||||
| Name: | ||||||
| Address: | 69 Xxxxx Xxxx | |||||
| Xxxxx 000 | ||||||
| Xxxxxxxx, XX 00000 | ||||||
| XXXXXXX X. XXXXX TRUST DTD 5/20/03 | ||||||
| By: | ||||||
| Name: | ||||||
| Address: | 14000 Xxxxxx Xxxx | |||||
| Xxxxxxxx Xxxx, XX 00000 | ||||||
| XXX SCHIESSMAN | ||||||
| By: | ||||||
| Name: | ||||||
| Address: | 1300 Xxxxxxxxxxxx | |||||
| Xxxxx 000 | ||||||
| Xxxxxxx XX 00000 | ||||||
| SBS INVESTORS, LLC | ||||||
| By: | ||||||
| Name: | ||||||
| Address: | P.X. Xxx 0000 | |||||
| Xxx Xxxxxx, XX 00000 | ||||||
26
| XXXX X. XXXXXXX LIVING TRUST DTD 1/9/04 | ||||||
| By: | ||||||
| Name: | ||||||
| Address: | 4200 Xxxxxxxx Xxxx | |||||
| Xxxxx 000 | ||||||
| Xxxxxxx Xxxxxxx, XX 00000 | ||||||
| BETSEY & XXXXXXXXX XXXXXXX | ||||||
| By: | ||||||
| Name: | ||||||
| Address: | 850 X. 00xx Xxxxxx | |||||
| Xxxxxx Xxxx, XX 00000 | ||||||
| XXXXX X. XXXXXXXX TRUST U/A DTD 6/16/92 | ||||||
| By: | ||||||
| Name: | ||||||
| Address: | 16000 000xx Xxxxxx | |||||
| Xxxxxxxxxx, XX 00000-0000 | ||||||
| XXXXXX X. XXXXX | ||||||
| By: | ||||||
| Name: | ||||||
| Address: | 3700 X. 00xx Xxxxxx | |||||
| Xxxxxxx Xxxxx, XX 00000 | ||||||
| XXXXXX X. XXXXX TRUST UA DTD 12/19/85 | ||||||
| By: | ||||||
| Name: | ||||||
| Address: | 8900 Xxxxx Xxxx Xxxx | |||||
| Xxxxx 000 | ||||||
| Xxxxxxx, XX 00000 | ||||||
27
| XXXXX XXXXX NONEXEMPT MARITAL TRUST U/T/A DTD 12/29/86 AS AMENDED | ||||||
| By: | ||||||
| Name: | ||||||
| Address: | 8900 Xxxxx Xxxx Xxxx | |||||
| Xxxxx 000 | ||||||
| Xxxxxxx, XX 00000 | ||||||
| XXXXXX EQUITY PARTNERS, L. P. | ||||||
| By: | ||||||
| Name: | ||||||
| Address: | 300 Xxx Xxxxx Xxxx | |||||
| Xxxxxxxxxx, XX 00000 | ||||||
| XXXXXX X. XXXXXX TRUST U/A DATED 6/29/1993 | ||||||
| By: | ||||||
| Name: | ||||||
| Address: | 5200 Xxxxxxxxx Xxxxxx | |||||
| Xxxxxx Xxxx, XX 00000 | ||||||
| RJ INVESTMENTS LP | ||||||
| By: | ||||||
| Name: | ||||||
| Address: | 5200 Xxxxxxxxx Xxxxxx | |||||
| Xxxxxx Xxxx, XX 00000 | ||||||
| XXXXXXX X. XXXXXXX REVOCABLE TRUST DTD 4/10/2000 | ||||||
| By: | ||||||
| Name: | ||||||
| Address: | 3700 X. 00xx Xxxxxx | |||||
| Xxxxxxx Xxxxx, XX 0000-0000 | ||||||
28
[CONTINUED ON ADDITIONAL PAGES]
29
SCHEDULE A
| Number of Preferred | Number of | Total Purchase | ||||||||||
| Name of Purchaser | Shares Purchased | Warrants Purchased | Price | |||||||||
Xxxxxx X. Xxxxxxx
Trust A U/T/A Dated
11/24/92 |
8,333.33 | 1,250 | $ | 125,000.00 | ||||||||
Xxxxx Xxxxx Revocable
Trust U/A DTD 1/28/79
As Amended |
13,333.33 | 2,000 | $ | 200,000.00 | ||||||||
Xxxx Xxxxxxx and
Xxxxxxx Xxxx Xxxxxxx
Ten Ent |
6,666.66 | 1,000 | $ | 100,000.00 | ||||||||
Xxxxx, Xxxx X. |
8,333.33 | 1,250 | $ | 125,000.00 | ||||||||
Xxxxxxxx, Xxx |
16,666.66 | 2,500 | $ | 250,000.00 | ||||||||
CF Partners, LP |
22,133.33 | 3,320 | $ | 332,000.00 | ||||||||
Xxxxx Xxxxxxx & Xxx X.
Xxxxxxx JTWROS |
6,666.66 | 1,000 | $ | 100,000.00 | ||||||||
Xxx Xxxxxxx & Xxxxxxx
Xxxxxxx TEN ENT |
6,666.66 | 1,000 | $ | 100,000.00 | ||||||||
Xxxxx Xxxxxxx Trust |
6,666.66 | 1,000 | $ | 100,000.00 | ||||||||
Xxxx Xxxxxxx Revocable
Trust DTD 10/24/79 As
Amended |
11,066.66 | 1,666 | $ | 166,000.00 | ||||||||
Xxxxxx X. Xxxx
Revocable Trust Dtd.
10/9/00 |
6,666.66 | 1,000 | $ | 100,000.00 | ||||||||
Xxxxxxxxxx, Xxxxx |
15,000 | 2,250 | $ | 225,000.00 | ||||||||
Xxxxxx, Xxxxxxxx X. |
6,666 | 1,000 | $ | 100,000.00 | ||||||||
Xxxx Xxxxxxxx DTD
8/21/1992 as Amended |
18,700 | 2,805 | $ | 280,500.00 | ||||||||
Xxxxx X. Xxxxxx
Revocable Trust U/A
Dtd. 4/94 |
6,666 | 1,000 | $ | 100,000.00 | ||||||||
| Number of Preferred | Number of | Total Purchase | ||||||||||
| Name of Purchaser | Shares Purchased | Warrants Purchased | Xxxxx | |||||||||
Xxxxx Xxxxxx Xxxxx
Xxxxxxxxx Trust U/A
9/20/78 as Amended |
6,666 | 1,000 | $ | 100,000.00 | ||||||||
Irvine X. Xxxxxxxx Xx.
Revocable Trust DTD
5/16/96 |
13,333.33 | 2,000 | $ | 200,000.00 | ||||||||
X.X.X. Trust DTD 7/6/72 |
33,333.33 | 5,000 | $ | 500,000.00 | ||||||||
JPJ Investments |
11,666.66 | 1,750 | $ | 175,000.00 | ||||||||
Xxxxxxx, Xxxxx & Xxxxx |
6,666.66 | 1,000 | $ | 100,000.00 | ||||||||
Xxxxxxx X. Xxxxx Rev
Trust U/A DTD 6/8/93
as Amended |
8,333.33 | 1,250 | $ | 125,000.00 | ||||||||
Xxxxxx, Xxxxxx |
6,666.66 | 1,000 | $ | 100,000.00 | ||||||||
Long, Xxxxxxxxxxx X. &
Xxxxx X. JTWROS |
16,666.66 | 2,500 | $ | 250,000.00 | ||||||||
Xxxxxx X. XxXxxxxx &
Xxxxxxx X. XxXxxxxx
JTWROS |
6,666.66 | 1,000 | $ | 100,000.00 | ||||||||
Xxxxxxxx X. Xxxxxx
Irrev. Trust U/A
7/20/05 |
11,066.66 | 1,660 | $ | 166,000.00 | ||||||||
Xxxxx X. Xxxxxx Rev.
Trust DTD 10/19/89 as
Amended |
13,333.33 | 2,000 | $ | 200,000.00 | ||||||||
PFF Inc. |
18,700.00 | 2,805 | $ | 280,500.00 | ||||||||
Xxxx Family Trust |
6,666.66 | 1,000 | $ | 100,000.00 | ||||||||
Xxxxxxx X. Xxxxx Trust
Dated May 20, 2003 |
13,333.33 | 2,000 | $ | 200,000.00 | ||||||||
Xxxxxxxxxx, Xxx |
33,333.33 | 5,000 | $ | 500,000.00 | ||||||||
SBS Investors, LLC |
13,333.33 | 2,000 | $ | 200,000.00 | ||||||||
| Number of Preferred | Number of | Total Purchase | ||||||||||
| Name of Purchaser | Shares Purchased | Warrants Purchased | Price | |||||||||
Xxxx X. Xxxxxxx Living
Trust Dtd. 1/9/04 |
6,666.66 | 1,000 | $ | 100,000.00 | ||||||||
Xxxxxxx, Xxxxxx &
Xxxxxxxxx |
6,666.66 | 1,000 | $ | 100,000.00 | ||||||||
Xxxxxxxx, Xxxxx X.
Trust U/A DTD
6/16/1992 |
6,666.66 | 1,000 | $ | 100,000.00 | ||||||||
Xxxxxx X. Xxxxx |
13,333.33 | 2,000 | $ | 200,000.00 | ||||||||
Xxxxxx X. Xxxxx Trust
UA DTD 12/19/85 |
6,666.66 | 1,000 | $ | 100,000.00 | ||||||||
Xxxxx Xxxxx Nonexempt
Marital Trust U/T/A
DTD 12/29/86 As
Amended |
6,666.66 | 1,000 | $ | 100,000.00 | ||||||||
Xxxxxx Equity
Partners, L.P. |
16,666.66 | 2,500 | $ | 250,000.00 | ||||||||
Xxxxxx X. Xxxxxx Trust
U/A Dated 6/29/1993 |
6,666.66 | 1,000 | $ | 100,000.00 | ||||||||
RJ Investments LP |
6,666.66 | 1,000 | $ | 100,000.00 | ||||||||
Xxxxxxx X. Xxxxxxx
Revocable Trust DTD
4/10/2000 |
10,000.00 | 1,500 | $ | 150,000.00 | ||||||||
EXHIBIT A
ARTICLES SUPPLEMENTARY FOR SERIES A
REDEEMABLE PREFERRED STOCK
REDEEMABLE PREFERRED STOCK
EXHIBIT B
[Reserved]
EXHIBIT C
IMPORTANT NOTICE
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), AND, UNTIL SUCH TIME AS THE CORPORATION’S COMMON STOCK IS REGISTERED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED (THE “EXCHANGE ACT”), THE CORPORATION HAS ELECTED TO BE
REGULATED AS A BUSINESS DEVELOPMENT COMPANY UNDER THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED
(THE “1940 ACT”), AND THE CORPORATION’S COMMON STOCK QUALIFIES AS “PUBLICLY OFFERED SECURITIES”
(WITHIN THE MEANING OF THE PLAN ASSET REGULATIONS OF THE DEPARTMENT OF LABOR AT 29 C.F.R. §
2510.3-101 (THE “PLAN ASSET REGULATIONS”)), THIS SECURITY MAY NOT BE OFFERED, SOLD, OR PLEDGED
EXCEPT AS SET FORTH IN THIS PARAGRAPH BELOW BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS
THAT IT IS (X) A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT)
OR (Y) AN “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A)(4), (5) OR (6) UNDER THE SECURITIES
ACT), (2) REPRESENTS THAT IT IS NOT A BENEFIT PLAN INVESTOR (WITHIN THE MEANING OF THE PLAN ASSET
REGULATIONS), WHETHER OR NOT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE; (3) REPRESENTS THAT IT IS A
“QUALIFIED PURCHASER” AS DEFINED IN SECTION 2(A)(51) OF THE 1940 ACT (4) AGREES THAT HE, SHE OR IT
WILL NOT RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT COVERING SUCH SECURITIES OR AN AVAILABLE EXEMPTION THEREFROM, IN
EACH CASE SUBJECT TO THE RESTRICTIONS ON TRANSFER IMPOSED UNDER THE CORPORATION’S CHARTER AND
DESCRIBED ABOVE; AND (5) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
FOLLOWING THE EFFECTIVENESS OF THE CORPORATION’S EXCHANGE ACT REGISTRATION WITH RESPECT TO ITS
COMMON STOCK AND THE CORPORATION’S ELECTION TO BE REGULATED AS A BUSINESS DEVELOPMENT COMPANY UNDER
THE 1940 ACT, THE RESTRICTION ON TRANSFER IN CLAUSE (3) OF THE PRECEDING PARAGRAPH WILL NO LONGER
APPLY TO TRANSFERS OF THIS SECURITY. IN ADDITION, FOLLOWING THE DATE THAT THE CORPORATION’S COMMON
STOCK QUALIFIES AS “PUBLICLY OFFERED SECURITIES” UNDER THE PLAN ASSET REGULATIONS, THE RESTRICTION
ON TRANSFER IN CLAUSE (2) OF THE PRECEDING PARAGRAPH WILL NO LONGER APPLY.
IF ANY RESALE OR OTHER TRANSFER OF THE SECURITIES IS PROPOSED TO BE MADE OTHER THAN PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT OR RULE 144 UNDER THE SECURITIES ACT, THE TRANSFEROR SHALL
DELIVER TO THE CORPORATION, AN AGREEMENT FROM THE TRANSFEREE SUBSTANTIALLY IN THE FORM OF APPENDIX
A TO THE FINAL OFFERING MEMORANDUM FOR THE PRIVATE PLACEMENT COMPLETED BY THE COMPANY IN JANUARY
2006 WHICH SHALL PROVIDE, AS APPLICABLE, AMONG OTHER THINGS, THAT THE TRANSFEREE IS A QUALIFIED
PURCHASER AND A QUALIFIED INSTITUTIONAL BUYER AND THAT SUCH TRANSFEREE IS ACQUIRING THE SHARES OF
COMMON STOCK FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT.
THE CORPORATION RESERVES THE RIGHT PRIOR TO ANY OFFER, SALE OR OTHER TRANSFER OTHER THAN TO A
QUALIFIED INSTITUTIONAL BUYER OR PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO THE CORPORATION.
ONLY WHOLE SECURITIES WILL BE ISSUED AND MAY BE TRANSFERRED. ANY TRANSFER IN VIOLATION OF THE
FOREGOING OR THE CORPORATION’S CHARTER OR ANY TRANSFER OF FRACTIONAL SECURITIES SHALL BE DEEMED TO
BE VOID AND OF NO LEGAL EFFECT WHATSOEVER. ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE
THE HOLDER OF SUCH SECURITIES FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO THE RECEIPT OF
DIVIDENDS, AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN SUCH
SECURITIES.
SO LONG AS THESE SECURITIES ARE “RESTRICTED SECURITIES” (AS SUCH TERM IS DEFINED IN RULE
144(A)(3) UNDER THE SECURITIES ACT), THE CORPORATION AGREES TO MAKE AVAILABLE TO EACH HOLDER AND
EACH PROSPECTIVE PURCHASER OF THE SECURITIES DESIGNATED BY A HOLDER, UPON REQUEST, THE INFORMATION
REQUIRED TO BE PROVIDED PURSUANT TO RULE 144A(D)(4) UNDER THE SECURITIES ACT.
