Exhibit 1.1
EXECUTION COPY
3,500,000 SHARES
ORMAT TECHNOLOGIES, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
April 4, 2006
XXXXXX BROTHERS INC.
XXXXXXX, SACHS & CO.
As Representatives of the
several underwriters named in Schedule 1 hereto
c/x XXXXXX BROTHERS INC.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
and
c/o GOLDMAN, SACHS & CO.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Ormat Technologies, Inc., a Delaware corporation (the "COMPANY"), proposes
to sell 3,500,000 shares (the "FIRM STOCK") of the Company's Common Stock, par
value $0.001 per share (the "COMMON STOCK"). In addition, the Company proposes
to grant to the Underwriters named in Schedule 1 hereto (the "UNDERWRITERS") an
option to purchase up to an additional 525,000 shares of the Common Stock on the
terms and for the purposes set forth in Section 3 (the "OPTION STOCK"). The Firm
Stock and the Option Stock, if purchased, are hereinafter collectively called
the "Stock." This is to confirm the agreement concerning the purchase of the
Stock from the Company by the Underwriters.
SECTION 1. Representations, Warranties and Agreements of the Company. The
Company represents, warrants and agrees that:
(a) A registration statement on Form S-3 relating to the Stock has (i)
been prepared by the Company in conformity with the requirements of the
Securities Act of 1933, as amended (the "SECURITIES ACT"), and the rules and
regulations (the "RULES AND REGULATIONS") of the Securities and Exchange
Commission (the "COMMISSION") thereunder; (ii) been filed with the Commission
under the Securities Act; and (iii) become effective under the Securities Act.
Copies of such registration statement and each of the amendments thereto have
been delivered by the Company to you as the representatives (the
"Representatives") of the Underwriters. As used in this Agreement:
(i) "APPLICABLE TIME" means 5:30 p.m. (New York City time) on
the date of this Agreement;
(ii) "EFFECTIVE DATE" means any date as of which any part of
such registration statement relating to the Stock became, or is deemed to
have become, effective under the Securities Act in accordance with the
Rules and Regulations;
(iii) "ISSUER FREE WRITING PROSPECTUS" means each "free writing
prospectus" (as defined in Rule 405 of the Rules and Regulations) prepared
by or on behalf of the Company or used or referred to by the Company in
connection with the offering of the Stock;
(iv) "PRELIMINARY PROSPECTUS" means any preliminary prospectus
relating to the Stock included in such registration statement or filed
with the Commission pursuant to Rule 424(b) of the Rules and Regulations,
including any preliminary prospectus supplement thereto relating to the
Stock;
(v) "PRICING DISCLOSURE PACKAGE" means, as of the Applicable
Time, the most recent Preliminary Prospectus, together with each Issuer
Free Writing Prospectus filed or used by the Company on or before the
Applicable Time, other than a road show that is an Issuer Free Writing
Prospectus under Rule 433 of the Rules and Regulations;
(vi) "PROSPECTUS" means the final prospectus relating to the
Stock, including any prospectus supplement thereto relating to the Stock,
as filed with the Commission pursuant to Rule 424(b) of the Rules and
Regulations; and
(vii) "REGISTRATION STATEMENT" means, collectively, the various
parts of such registration statement, each as amended as of the Effective
Date for such part, including any Preliminary Prospectus or the Prospectus
and all exhibits to such registration statement.
Any reference to any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include any documents incorporated by reference therein pursuant to
Form S-3 under the Securities Act as of the date of such Preliminary Prospectus
or the Prospectus, as the case may be. Any reference to the "most recent
Preliminary Prospectus" shall be deemed to refer to the latest Preliminary
Prospectus included in the Registration Statement or filed pursuant to Rule
424(b) prior to or on the date hereof (including, for purposes hereof, any
documents incorporated by reference therein prior to or on the date hereof). Any
reference to any amendment or supplement to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any document filed under the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), after the date
of such Preliminary Prospectus or the Prospectus, as the case may be, and
incorporated by reference in such Preliminary Prospectus or the Prospectus, as
the case may be; and any reference to any amendment to the Registration
Statement shall be deemed to include any annual report of the Company on Form
10-K filed with the Commission pursuant
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to Section 13(a) or 15(d) of the Exchange Act after the Effective Date that is
incorporated by reference in the Registration Statement. The Commission has not
issued any order preventing or suspending the use of any Preliminary Prospectus
or the Prospectus or suspending the effectiveness of the Registration Statement,
and no proceeding or examination for such purpose has been instituted or
threatened by the Commission.
(b) The Company was not at the time of initial filing of the
Registration Statement and at the earliest time thereafter that the Company or
another offering participant made a bona fide offer (within the meaning of Rule
164(h)(2) of the Rules and Regulations) of the Stock, is not on the date hereof
and will not be on the applicable Delivery Date (as defined in Section 4) an
"ineligible issuer" (as defined in Rule 405 of the Rules and Regulations). The
Company has been since the time of initial filing of the Registration Statement
and continues to be eligible to use Form S-3 for the offering of the Stock.
(c) The Registration Statement conformed and will conform in all
material respects on the Effective Date and on the applicable Delivery Date, and
any amendment to the Registration Statement filed after the date hereof will
conform in all material respects when filed, to the requirements of the
Securities Act and the Rules and Regulations. The Preliminary Prospectus
conformed, and the Prospectus will conform, in all material respects when filed
with the Commission pursuant to Rule 424(b) and on the applicable Delivery Date
to the requirements of the Securities Act and the Rules and Regulations. The
documents incorporated by reference in any Preliminary Prospectus or the
Prospectus conformed, and any further documents so incorporated will conform,
when filed with the Commission, in all material respects to the requirements of
the Exchange Act or the Securities Act, as applicable, and the rules and
regulations of the Commission thereunder.
(d) The Registration Statement did not, as of the Effective Date,
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; provided that no representation or warranty is made as to
information contained in or omitted from the Registration Statement in reliance
upon and in conformity with written information furnished to the Company through
the Representatives by or on behalf of any Underwriter specifically for
inclusion therein.
(e) The Prospectus will not, as of its date and on the applicable
Delivery Date, 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, in the light of the circumstances under which they were made, not
misleading; provided that no representation or warranty is made as to
information contained in or omitted from the Prospectus in reliance upon and in
conformity with written information furnished to the Company through the
Representatives by or on behalf of any Underwriter specifically for inclusion
therein.
(f) The documents incorporated by reference in any Preliminary
Prospectus or the Prospectus did not, and any further documents filed and
incorporated by reference therein will not, when filed with the Commission,
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, in
the light of the circumstances under which they were made, not misleading.
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(g) The Pricing Disclosure Package did not, as of the Applicable Time,
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, in
the light of the circumstances under which they were made, not misleading,
except that the price of the Stock and disclosures directly relating thereto
will be included on the cover page of the Prospectus; provided that no
representation or warranty is made as to information contained in or omitted
from the Pricing Disclosure Package in reliance upon and in conformity with
written information furnished to the Company through the Representatives by or
on behalf of any Underwriter specifically for inclusion therein.
(h) Each Issuer Free Writing Prospectus (including, without
limitation, any road show that is a free writing prospectus under Rule 433),
when considered together with the Pricing Disclosure Package as of the
Applicable Time, did 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, in the light of the circumstances under which they were
made, not misleading, except that the price of the Stock and disclosures
directly relating thereto will be included on the cover page of the Prospectus.
(i) Each Issuer Free Writing Prospectus conformed or will conform in
all material respects to the requirements of the Securities Act and the Rules
and Regulations on the date of first use, and the Company has complied with any
filing requirements applicable to such Issuer Free Writing Prospectus pursuant
to the Rules and Regulations. The Company has not made any offer relating to the
Stock that would constitute an Issuer Free Writing Prospectus without the prior
written consent of the Representatives. The Company has retained in accordance
with the Rules and Regulations all Issuer Free Writing Prospectuses that were
not required to be filed pursuant to the Rules and Regulations.
(j) The Company and each of its subsidiaries (as defined in Section
17) have been duly incorporated or formed, as applicable, and are validly
existing as corporations, limited liability companies or partnerships, as
applicable, in good standing under the laws of their respective jurisdictions of
incorporation, are duly qualified to do business and are in good standing as
foreign corporations, limited liability companies or partnerships, as
applicable, in each jurisdiction in which their respective ownership or lease of
property or the conduct of their respective businesses requires such
qualification, except where the failure to be so qualified or in good standing
would not have, individually or in the aggregate, a material adverse effect on
the general affairs, management, business, prospects, financial condition,
revenues or expenses, properties, stockholders' equity or results of operations
of the Company and its subsidiaries taken as a whole (a "MATERIAL ADVERSE
EFFECT"), and have all power and authority necessary to own or hold their
respective properties and to conduct the businesses in which they are engaged;
and none of the subsidiaries of the Company other than those listed on Schedule
2 hereto is a "significant subsidiary", as such term is defined in Rule 405 of
the Rules and Regulations.
(k) The Company has an authorized capitalization as set forth in the
most recent Preliminary Prospectus and the Prospectus. All of the issued shares
of capital stock of the Company have been duly and validly authorized and
issued, were issued in compliance with federal and state securities laws. All of
the Company's options, warrants and other rights to purchase or exchange any
securities for shares of the Company's capital stock have been duly and validly
authorized and issued, were issued in compliance with federal and state
securities
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laws, and conform to the description thereof contained in the most recent
Preliminary Prospectus and the Prospectus. All of the issued shares of capital
stock, limited liability company interests or partnership interests, as
applicable, of each subsidiary of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable and are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims, other than as set forth in the most recent
Preliminary Prospectus and the Prospectus. The Company has not, at any time,
granted any preemptive rights, resale rights, rights of first refusal or similar
rights with respect to its capital stock.
(l) The shares of the Stock to be issued and sold by the Company to
the Underwriters hereunder have been duly and validly authorized and, when
issued and delivered against payment therefor in accordance with this Agreement,
will be duly and validly issued, fully paid and non-assessable and free of
statutory and contractual preemptive rights, resale rights, rights of first
refusal and similar rights; and the Stock will conform to the description of the
material terms thereof contained in the most recent Preliminary Prospectus and
the Prospectus under the caption "Description of Common Stock We May Offer".
Upon payment for and delivery of the Stock to be sold by the Company pursuant to
this Agreement, the Underwriters will acquire good and valid title to such
Stock, in each case free and clear of all liens, encumbrances, equities,
preemptive rights, subscription rights, other rights to purchase, voting or
transfer restrictions and other claims.
(m) This Agreement has been duly authorized, executed and delivered by
the Company.
(n) The execution, delivery and performance of this Agreement by the
Company and the consummation of the transactions contemplated hereby and the
application of the proceeds from the sale of Stock as described under "Use of
Proceeds" in the most recent Preliminary Prospectus and the Prospectus will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the Company
or any of its subsidiaries is subject, nor will such actions result in any
violation of the provisions of the charter or by-laws of the Company or any of
its subsidiaries or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties or assets; and except for the
registration of the Stock under the Securities Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under the
Exchange Act, the applicable state securities laws or by the New York Stock
Exchange, Inc., if any, in connection with the purchase and distribution of the
Stock by the Underwriters, no consent, approval, authorization or order of, or
filing or registration with, any such court or governmental agency or body is
required for the execution, delivery and performance of this Agreement by the
Company and the consummation of the transactions contemplated hereby.
(o) Except as described in the most recent Preliminary Prospectus,
there are no contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Securities Act with respect to any securities
of the Company owned or to be owned by such person or to require
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the Company to include such securities in the securities registered pursuant to
the Registration Statement or in any securities being registered pursuant to any
other registration statement filed by the Company under the Securities Act. With
the exception of Ormat Industries Ltd., the holders of outstanding shares of the
Company's capital stock are not entitled to preemptive rights, co-sale rights,
rights of first refusal or other rights to subscribe for or purchase any shares
of the Stock and there are no contracts, agreements or understandings between
the Company and any person granting such person such preemptive rights, co-sale
rights, rights of first refusal or other rights to subscribe for or purchase the
Stock. Except for the options to purchase from the Company 222,500 shares of
Common Stock, in the aggregate, granted to directors, officers and employees of
the Company under the Company's Ormat Technologies, Inc. 2004 Incentive
Compensation Plan (the "2004 PLAN"), there are no options, warrants or other
rights to purchase from the Company, agreements or other obligations of the
Company to issue, or right to convert any obligations of the Company into or
exchange any securities of the Company for shares of Capital Stock of or
ownership interests in the Company.
(p) The Company has not sold or issued any shares of Common Stock
during the six-month period preceding the date of the Prospectus, including any
sales pursuant to Rule 144A or Regulation D or S under the Securities Act other
than shares underlying options issued pursuant to the 2004 Plan.
(q) Neither the Company nor any of its subsidiaries has sustained,
since the date of the latest audited financial statements included or
incorporated by reference in the most recent Preliminary Prospectus, any
material loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise than as set forth or
contemplated in the most recent Preliminary Prospectus; and, since such date,
there has not been any change in the capital stock, limited liability company
interests or partnership interests, as applicable, or long-term debt of the
Company or any of its subsidiaries or any material adverse change, or any
development reasonably likely to have a Material Adverse Effect, otherwise than
as set forth or contemplated in the most recent Preliminary Prospectus.
(r) The financial statements (including the related notes and
supporting schedules) included or incorporated by reference in the most recent
Preliminary Prospectus present fairly the financial condition and results of
operations of the entities purported to be shown thereby, at the dates and for
the periods indicated, and have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis throughout the
periods involved. There are no material off-balance sheet arrangements (as
defined in Regulation S-K Item 303(a)(4)(ii)) that are reasonably likely to have
a current or future material effect on the Company's financial condition,
revenues or expenses, results of operations, liquidity, capital expenditures or
capital resources.
(s) PricewaterhouseCoopers LLP, who have certified certain financial
statements of the Company, whose report appears in the most recent Preliminary
Prospectus or is incorporated by reference therein and who have delivered the
letters referred to in Section 7(m) hereof, are independent public accountants
as required by the Securities Act and the Rules and Regulations. Except as
described in the most recent Preliminary Prospectus and as preapproved in
accordance with the requirements set forth in Section 10A of the Exchange Act,
since May 6, 2003,
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PricewaterhouseCoopers LLP has, to the best of the Company's knowledge, not
engaged in any "prohibited activities" (as defined in Section 10A of the
Exchange Act) on behalf of the Company.
(t) The Company and each of its subsidiaries have good and marketable
title in fee simple to all real property owned by them and good and marketable
title to all personal property owned by them that is material to the business of
the Company and its subsidiaries, in each case, free and clear of all liens,
encumbrances and defects, except such as are described in the most recent
Preliminary Prospectus or such as do not materially affect the value of such
property and do not materially interfere with the use made and proposed to be
made of such property by the Company and its subsidiaries; and all assets held
under lease by the Company and its subsidiaries (including, without limitation,
all geothermal resources held under lease) are held by them under valid,
subsisting and enforceable leases, with such exceptions as are not material and
do not interfere with the use made and proposed to be made of such property and
buildings by the Company and its subsidiaries, in each case, except as described
in or contemplated by the most recent Preliminary Prospectus.
(u) The statistical and market-related data included in the most
recent Preliminary Prospectus and the consolidated financial statements of the
Company and its subsidiaries included or incorporated by reference in the most
recent Preliminary Prospectus are based on or derived from sources that the
Company believes to be reliable and accurate.
(v) The leases (including, without limitation, all geothermal
resources leases), easements, licenses, rights of way and other rights possessed
by the Company and its subsidiaries provide the Company and its subsidiaries
with all rights and property interests required to enable them to obtain, in all
material respects, all services, materials (including, without limitation,
geothermal resources) or rights (including, without limitation, access rights
and rights to extract and develop such geothermal resources that may exist in
the properties covered by such geothermal resources leases) required for the
operation and maintenance of their operating projects, as contemplated by the
most recent Preliminary Prospectus.
(w) Each of the power purchase agreements, transmission agreements,
interconnection agreements, financing documents, leases and other agreements
referred to in the most recent Preliminary Prospectus is a valid and binding
agreement, enforceable against each party thereto in accordance with its terms,
except as such enforceability (i) may be limited by applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and (ii) is
subject to general principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law) and, except as described in the
most recent Preliminary Prospectus, the Company and any subsidiary of the
Company are not in any material default, and have no knowledge of any material
default of any of the counterparties thereto, under any such power purchase
agreement, transmission agreement, interconnection agreement, financing
document, lease or other agreement referred to in the most recent Preliminary
Prospectus.
(x) The Company and each of its subsidiaries carry, or are covered by,
insurance in such amounts and covering such risks as is adequate for the conduct
of their respective
7
businesses and the value of their respective properties and as is customary for
companies engaged in similar businesses in similar industries.
(y) The Company conducts no business other than as described in the
most recent Preliminary Prospectus (other than non-material business activities,
which in the aggregate, do not represent an investment expense in excess of $2
million).
(z) The Company and its subsidiaries own or possess adequate rights to
use all patents, patent applications, trademarks, service marks, service names,
trade names, trademark registrations, service xxxx registrations, copyrights,
inventions, trade secrets, licenses and other intellectual property necessary
for the conduct of their respective businesses (collectively, the "INTELLECTUAL
PROPERTY") and, other than with respect to Intellectual Property covered by
licenses permitting Company, Ormat Industries Ltd. or OPTI Canada Inc. use, are
not aware of any rights of third parties to any such Intellectual Property. The
Company and its subsidiaries have no reason to believe that the conduct of their
respective businesses conflict, infringe or misappropriate, or will conflict
with, infringe or misappropriate, the intellectual property rights of others,
and have not received any notice of any claim of conflict with, infringement or
misappropriation of, the intellectual property rights of others. There is no
pending or, to the Company's best knowledge, threatened action, suit, proceeding
or claim by others challenging the validity or scope of such Intellectual
Property (and the Company and its subsidiaries are not aware of any facts which
would form a reasonable basis for such claim). To the Company's and its
subsidiaries' best knowledge: (a) there is no infringement by third parties of
any such Intellectual Property and (b) there is no U.S. patent or published U.S.
patent application which contains claims that dominate or may dominate any
Intellectual Property or that interferes with the issued or pending claims of
any such Intellectual Property. There is no prior art of which the Company or
its subsidiaries is aware that may render any U.S. patent held by the Company or
its subsidiaries invalid or any U.S. patent application held by the Company or
its subsidiaries unpatentable, which has not been disclosed to the U.S. Patent
and Trademark Office.
(aa) There are no legal or governmental proceedings pending to which
the Company or any of its subsidiaries is a party or of which any property or
assets of the Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its subsidiaries, could reasonably
be expected to have a Material Adverse Effect; and to the best of the Company's
knowledge no such proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(bb) Except as disclosed in the most recent Preliminary Prospectus, the
Company and each of its subsidiaries possess adequate certificates,
authorizations or permits issued by appropriate governmental agencies or bodies
necessary to conduct the business described in the most recent Preliminary
Prospectus, except for such certificates, authorizations or permits that the
failure to so possess would not, individually or in the aggregate, have a
Material Adverse Effect and except for those not yet required to be obtained by
the Company, which the Company intends to obtain in due course. The Company, and
each of its subsidiaries have not received any notice of proceedings relating to
the revocation or modification of any such certificate, authorization or permit
that would, individually or in the aggregate, have a Material Adverse Effect.
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(cc) There are no contracts or other documents, which are required to
be described in the documents incorporated by reference into the most recent
Preliminary Prospectus or filed as exhibits to such documents by the Securities
Act or by the Rules and Regulations, which have not been described in such
documents or filed as exhibits to such documents. Each contract, agreement or
arrangement to which the Company or any of its subsidiaries is a party or by
which it may be bound, or to which any of the property or assets of the Company
or any of its subsidiaries is subject, has been duly and validly authorized,
executed and delivered by the Company or any of its subsidiaries, as the case
may be; neither the Company nor any of its subsidiaries knows of any present
condition or fact which would prevent compliance by the Company or any of its
subsidiaries or any other party thereto with the terms of any such contract,
agreement or arrangement in accordance with its terms; except as described in
the most recent Preliminary Prospectus, neither the Company nor any of its
subsidiaries has any present intention to exercise any right that it may have to
cancel any such contract, agreement or arrangement or otherwise to terminate its
rights and obligations thereunder other than in the ordinary course of business,
and neither the Company nor any of its subsidiaries has any knowledge that any
other party to any such contract, agreement or arrangement has any current
intention not to render full performance as contemplated by the terms thereof.
(dd) Except as described in the most recent Preliminary Prospectus, no
relationships (including without limitation any loans or advances), direct or
indirect, exists, nor has any transaction been entered into since January 1,
2001, between or among the Company and its subsidiaries on the one hand, and the
directors, officers, shareholders of the Company or any subsidiary on the other
hand. Since July 30, 2002, the Company has not, directly or indirectly,
including through any subsidiary, extended or maintained credit, or arranged for
the extension of credit, or renewed or amended any extension of credit, in the
form of a personal loan to or for any of its directors or executive officers.
(ee) No labor disturbance by the employees of the Company exists or, to
the knowledge of the Company, is imminent, which could reasonably be expected to
have a Material Adverse Effect.
(ff) Each of the Company's operating projects in the United States,
other than the Puna Facility, is a "qualifying small power production facility"
within the meaning of Section 3(17)(C) of the Federal Power Act, as amended
("FPA") and a "qualifying facility" within the meaning of 18 C.F.R.
ss.292.101(b)(1) that is eligible for the regulatory exemptions set forth in 18
C.F.R. Sections 292.601 and 292.602 from the FPA and from certain state laws and
regulations.
(gg) Puna Geothermal Venture, L.P. is the owner of the Puna Facility
and is an "exempt wholesale generator" as such term is defined in Section
1262(6) of the Public Utility Holding Company Act of 2005 ("PUHCA").
(hh) The Company and its subsidiaries are eligible for an exemption
from PUHCA.
(ii) The Company is in compliance in all material respects with all
presently applicable provisions of the Employee Retirement Income Security Act
of 1974, as amended, including the regulations and published interpretations
thereunder ("ERISA"); no "REPORTABLE EVENT" (as defined in Section 4043 of
ERISA) has occurred with respect to any "PENSION PLAN"
9
subject to Title IV of ERISA (a "Title IV Plan") (as defined in ERISA) for which
the Company would have any liability; the Company has not incurred and does not
expect to incur liability under (i) Title IV of ERISA with respect to the
termination of, or withdrawal from, any Title IV Plan or (ii) Sections 412 or
4971 of the Internal Revenue Code of 1986, as amended, including the regulations
and published interpretations thereunder (the "CODE"); and each "pension plan"
for which the Company would have any liability that is intended to be qualified
under Section 401(a) of the Code is so qualified in all material respects and
nothing has occurred, whether by action or by failure to act, which would cause
the loss of such qualification.
(jj) The Company has filed all tax returns required to be filed through
the date hereof (other than any tax returns not so required to be filed through
the date hereof as a result of the existence of waiver or extension granted in
connection with any such tax returns) and has paid all taxes shown to be due
thereon, and no tax deficiency has been determined adversely to the Company or
any of its subsidiaries which has had (nor does the Company have any knowledge
of any tax deficiency which, if determined adversely to the Company or any of
its subsidiaries, could reasonably be expected to have) a Material Adverse
Effect.
(kk) Since the date as of which information is given in the most recent
Preliminary Prospectus through the date hereof, and except as may otherwise be
disclosed in the most recent Preliminary Prospectus, the Company has not (i)
issued or granted any securities (other than options issued pursuant to the 2004
Plan as described in the Prospectus), (ii) incurred any liability or obligation,
direct or contingent, other than non-material liabilities and obligations which
were incurred in the ordinary course of business, (iii) entered into any
transaction not in the ordinary course of business or (iv) declared or paid any
dividend on its capital stock.
(ll) The Company (i) makes and keeps accurate books and records and
(ii) maintains internal accounting controls which provide reasonable assurance
that (A) transactions are executed in accordance with management's
authorization, (B) transactions are recorded as necessary to permit preparation
of its financial statements and to maintain accountability for its assets, (C)
access to its assets is permitted only in accordance with management's
authorization and (D) the reported accountability for its assets is compared
with existing assets at reasonable intervals. No action, suit or proceeding by
or before any court or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries with respect to the applicable
financial recordkeeping and reporting requirements of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, the money laundering statutes of
all jurisdictions, the rules and regulations thereunder and any related or
similar rules, regulations or guidelines, issued, administered or enforced by
any governmental agency is pending or, to the knowledge of the Company,
threatened, except, in each case, as would not reasonably be expected to have a
Material Adverse Effect.
(mm) Neither the Company nor any of its subsidiaries (i) is in
violation of its charter or by-laws or other governing documents, (ii) is in
default, and no event has occurred which, with notice or lapse of time or both,
would constitute such a default, in the due performance or observance of any
term, covenant or condition contained in any material indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which it is a party
or by which it is bound or to which any of its properties or assets is subject
or (iii) is in violation of any law, ordinance, governmental rule, regulation or
court decree to which it or its property or assets may
10
be subject or has failed to obtain any license, permit, certificate, franchise
variance, special exception or other governmental authorization or permit or
municipal government approval necessary to the ownership of its property or to
the conduct of its business, except, in the case of clauses (ii) and (iii), for
such defaults, violations or failures to obtain as would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect.
(nn) Neither the Company nor any of its subsidiaries, nor any director,
officer, employee or other person acting on behalf of the Company or any of its
subsidiaries nor, to the best of the Company's knowledge, any agent or other
person associated with the Company, has used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expense relating to
political activity; made any direct or indirect unlawful payment to any foreign
or domestic government official or employee from corporate funds; violated or is
in violation of any provision of the Foreign Corrupt Practices Act of 1977; or
made any bribe, rebate, payoff, influence payment, kickback or other unlawful
payment.
(oo) Except as disclosed in the most recent Preliminary Prospectus,
there has been no storage, disposal, generation, manufacture, refinement,
transportation, handling or treatment of toxic wastes, medical wastes, hazardous
wastes or hazardous substances by the Company or any of its subsidiaries (or, to
the knowledge of the Company, any of their predecessors in interest) at, upon or
from any of the property now or previously owned or leased by the Company or its
subsidiaries in violation of any applicable environmental law, ordinance, rule,
regulation, order, judgment, decree or permit or which would require remedial
action under any applicable environmental law, ordinance, rule, regulation,
order, judgment, decree or permit, except for any violation or remedial action
which would not have, or would not be reasonably likely to have, individually or
in the aggregate with respect to all such violations and remedial actions, a
Material Adverse Effect; there has been no material spill, discharge, leak,
emission, injection, escape, dumping or release of any kind onto such property
or into the environment surrounding such property of any toxic wastes, medical
wastes, solid wastes, hazardous wastes or hazardous substances due to or caused
by the Company or any of its subsidiaries or with respect to which the Company
or any of its subsidiaries have knowledge, except for any such spill, discharge,
leak, emission, injection, escape, dumping or release which is authorized
pursuant to an applicable law or permit or which would not have or would not be
reasonably likely to have, individually or in the aggregate with respect to all
such spills, discharges, leaks, emissions, injections, escapes, dumpings and
releases, a Material Adverse Effect. The terms "HAZARDOUS WASTES", "TOXIC
WASTES", "HAZARDOUS SUBSTANCES" and "MEDICAL WASTES" shall have the meanings
specified in any applicable local, state, federal and foreign laws or
regulations with respect to environmental protection.
(pp) Neither the Company nor any of its subsidiaries is, or, after
giving effect to the offering and sale of the Stock and the application of the
net proceeds therefrom as described in the Prospectus will be, an "investment
company" as defined in the Investment Company Act of 1940, as amended together
with the rules and regulations promulgated thereunder (the "INVESTMENT COMPANY
Act").
(qq) Except for this Agreement, there are no contracts, agreements or
understandings between the Company and any person that would give rise to a
valid claim against the Company
11
or any Underwriter for a brokerage commission, finder's fee or other like
payment in connection with the offering and sale of the Stock contemplated by
this Agreement.
(rr) Except as disclosed in the most recent Preliminary Prospectus,
neither the Company nor any subsidiary has abandoned (or intends to abandon) any
of its operating projects.
(ss) The material mechanical, electrical and other operating systems on
and in the Company's operating projects are in all material respects in good
working order and repair relative to their time in service (ordinary wear and
tear excepted) and are adequate in all material respects for the operation of
the projects by the Company and its subsidiaries as described in the most recent
Preliminary Prospectus.
(tt) Except as disclosed in the most recent Preliminary Prospectus,
there are no pending actions, suits or proceedings against or affecting the
Company or any of its subsidiaries in connection with the condemnation or
appropriation of any of its operating projects.
(uu) The Company has established and maintains disclosure controls and
procedures (as such term is defined in Rule 13a-15 under the Exchange Act),
which (i) are designed to ensure that material information relating to the
Company, including its consolidated subsidiaries, is made known to the Company's
principal executive officer and its principal financial officer by others within
those entities, particularly during the preparation of the Registration
Statement, and in the future, during the periods in which the periodic reports
required under the Exchange Act are being prepared and (ii) as of the date
hereof are effective in all material respects to perform the functions for which
they were established.
(vv) The Company is not aware of (i) any significant deficiency or
material weakness in the design or operation of internal control over financial
reporting which are reasonably likely to adversely affect the Company's ability
to record, process, summarize and report financial information except as
disclosed in the most recent Preliminary Prospectus; or (ii) any fraud, whether
or not material, that involves management or other employees who have a
significant role in the Company's internal control over financial reporting.
(ww) The Company has not distributed and, prior to the later to occur
of any Delivery Date and completion of the distribution of the Stock, will not
distribute any offering material in connection with the offering and sale of the
Stock other than any Preliminary Prospectus, the Prospectus, any Issuer Free
Writing Prospectus to which the Representatives have consented in accordance
with Section 1(i) or 5(a)(vi).
(xx) The Stock has been approved for listing, subject to official
notice of issuance, on the New York Stock Exchange, Inc.
(yy) No consent, approval, authorization or order of, or filing or
registration with, any court or governmental agency or body having jurisdiction
over the Company or any of its subsidiaries or any of their properties or assets
is required for the execution, delivery and performance of this Agreement by the
Company, the consummation of the transactions contemplated hereby, the
application of the proceeds from the sale of the Stock as described under "Use
of Proceeds" in each of the most recent Preliminary Prospectus and the
Prospectus, except for the registration of the Stock under the Securities Act
and such consents, approvals,
12
authorizations, registrations or qualifications as may be required under the
Exchange Act and applicable state or foreign securities laws in connection with
the purchase and sale of the Stock by the Underwriters.
(zz) There is and has been no failure on the part of the Company and
any of the Company's directors or officers, in their capacities as such, to
comply with the provisions of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and
regulations promulgated in connection therewith.
(aaa) No subsidiary of the Company is currently prohibited, directly or
indirectly, from paying any dividends to the Company, from making any other
distribution on such subsidiary's capital stock, from repaying to the Company
any loans or advances to such subsidiary from the Company or from transferring
any of such subsidiary's property or assets to the Company or any other
subsidiary of the Company, except as described in or contemplated by the most
recent Preliminary Prospectus for such restrictions contained in financing
arrangements or documents and any documents incorporated by reference therein.
(bbb) Neither the Company nor any of its subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee or affiliate of
the Company or any of its subsidiaries is currently subject to any U.S.
sanctions administered by the Office of Foreign Assets Control of the U.S.
Treasury Department ("OFAC"); and the Company will not directly or indirectly
use the proceeds of the offering, or lend, contribute or otherwise make
available such proceeds to any subsidiary, joint venture partner or other person
or entity, for the purpose of financing the activities of any person currently
subject to any U.S. sanctions administered by OFAC.
(ccc) The Company has not taken and will not take, directly or
indirectly, any action designed to or that has constituted or that could
reasonably be expected to cause or result in the stabilization or manipulation
of the price of any security of the Company to facilitate the sale or resale of
the shares of the Stock.
Each certificate signed by any officer of the Company and delivered to the
Underwriters or counsel to the Underwriters in connection with the transaction
contemplated hereunder shall be deemed to be a representation and warranty by
the Company to the Underwriters as to the matters covered thereby.
SECTION 2. Purchase of the Stock by the Underwriters. On the basis of the
representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell 3,500,000 shares of
the Firm Stock to the several Underwriters and each of the Underwriters,
severally and not jointly, agrees to purchase the number of shares of the Firm
Stock set forth opposite that Underwriter's name in Schedule 1 hereto. The
respective purchase obligations of the Underwriters with respect to the Firm
Stock shall be rounded among the Underwriters to avoid fractional shares, as the
Representatives may determine.
In addition, the Company grants to the Underwriters an option to purchase
up to 525,000 additional shares of Option Stock. Such option is exercisable in
the event that the Underwriters sell more shares of Common Stock than the number
of Firm Shares in the offering and as set forth in Section 4 hereof. Each
Underwriter agrees, severally and not jointly, to purchase the
13
number of shares of Option Stock (subject to such adjustments to eliminate
fractional shares as the Representatives may determine) that bears the same
proportion to the total number of shares of Option Stock to be sold on such
Delivery Date as the number of shares of Firm Stock set forth in Schedule 1
hereto opposite the name of such Underwriter bears to the total number of shares
of Firm Stock.
The price of both the Firm Stock and any Option Stock shall be $33.814 per
share.
The Company shall not be obligated to deliver any of the Stock to be
delivered on any Delivery Date (as hereafter defined), except upon payment for
all the Stock to be purchased on such Delivery Date as provided herein.
SECTION 3. Offering of Stock by the Underwriters. Upon authorization by the
Representatives of the release of the Firm Stock, the several Underwriters
propose to offer the Firm Stock for sale upon the terms and conditions set forth
in the Prospectus.
SECTION 4. Delivery of and Payment for the Stock. Delivery of and payment for
the Firm Stock shall be made at the offices of White & Case LLP, 0000 Xxxxxx xx
xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, at 10:00 A.M., New York City time, on
the fourth full business day following the date of this Agreement or at such
other date or place as shall be determined by agreement between the
Representatives and the Company. This date and time are sometimes referred to as
the "FIRST DELIVERY DATE." On the First Delivery Date, the Company shall deliver
or cause to be delivered certificates representing the Firm Stock to the
Representatives for the account of each Underwriter against payment to or upon
the order of the Company of the purchase price by wire transfer in immediately
available funds. Time shall be of the essence, and delivery at the time and
place specified pursuant to this Agreement is a further condition of the
obligation of each Underwriter hereunder. Upon delivery, the Firm Stock shall be
registered in such names and in such denominations as the Representatives shall
request in writing not less than two full business days prior to the First
Delivery Date. For the purpose of expediting the checking and packaging of the
certificates for the Firm Stock, the Company shall make the certificates
representing the Firm Stock available for inspection by the Representatives in
New York, New York, not later than 2:00 P.M., New York City time, on the
business day prior to the First Delivery Date.
The option granted in Section 2 will expire 30 days after the date of this
Agreement and may be exercised in whole or in part from time to time by written
notice being given to the Company by the Representatives. Such notice shall set
forth the aggregate number of shares of Option Stock as to which the option is
being exercised, the names in which the shares of Option Stock are to be
registered, the denominations in which the shares of Option Stock are to be
issued and the date and time, as determined by the Representatives, when the
shares of Option Stock are to be delivered; provided, however, that this date
and time shall not be earlier than the First Delivery Date nor earlier than the
second business day after the date on which the option shall have been exercised
nor later than the fifth business day after the date on which the option shall
have been exercised. The date and time the shares of Option Stock are delivered
are sometimes referred to as a "SECOND DELIVERY DATE" and the First Delivery
Date and any Second Delivery Date are sometimes each referred to as a "DELIVERY
DATE".
14
Delivery of and payment for the Option Stock shall be made at the place
specified in the first sentence of the first paragraph of this Section 4 (or at
such other place as shall be determined by agreement between the Representatives
and the Company) at 10:00 A.M., New York City time, on such Second Delivery
Date. On such Second Delivery Date, the Company shall deliver or cause to be
delivered the certificates representing the Option Stock to the Representatives
for the account of each Underwriter against payment to or upon the order of the
Company of the purchase price by wire transfer in immediately available funds.
Time shall be of the essence, and delivery at the time and place specified
pursuant to this Agreement is a further condition of the obligation of each
Underwriter hereunder. Upon delivery, the Option Stock shall be registered in
such names and in such denominations as the Representatives shall request in the
aforesaid written notice. For the purpose of expediting the checking and
packaging of the certificates for the Option Stock, the Company shall make the
certificates representing the Option Stock available for inspection by the
Representatives in New York, New York, not later than 2:00 P.M., New York City
time, on the business day prior to such Second Delivery Date.
SECTION 5. Further Agreements of the Company. (a) The Company covenants and
agrees:
(i) To prepare the Prospectus in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under the
Securities Act not later than the Commission's close of business on the second
business day following the execution and delivery of this Agreement; to make no
further amendment or any supplement to the Registration Statement or the
Prospectus prior to the last Delivery Date except as permitted herein; to advise
the Representatives, promptly after it receives notice thereof, of the time when
any amendment or supplement to the Registration Statement or the Prospectus has
been filed and to furnish the Representatives with copies thereof; to file
promptly all reports and any definitive proxy or information statements required
to be filed by the Company with the Commission pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for
so long as the delivery of a prospectus is required in connection with the
offering or sale of the Stock; to advise the Representatives, promptly after it
receives notice thereof, of the issuance by the Commission of any stop order or
of any order preventing or suspending the use of the Prospectus or any Issuer
Free Writing Prospectus, of the suspension of the qualification of the Stock for
offering or sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose or of any request by the Commission for the
amending or supplementing of the Registration Statement, the Prospectus or any
Issuer Free Writing Prospectus or for additional information; and, in the event
of the issuance of any stop order or of any order preventing or suspending the
use of the Prospectus or any Issuer Free Writing Prospectus or suspending any
such qualification, to use promptly its best efforts to obtain its withdrawal;
(ii) To furnish promptly to each of the Representatives and to counsel
for the Underwriters a signed copy of the Registration Statement as originally
filed with the Commission, and each amendment thereto filed with the Commission,
including all consents and exhibits filed therewith;
(iii) To deliver promptly to the Representatives, without charge, such
number of the following documents as the Representatives shall reasonably
request: (A) conformed copies of the Registration Statement as originally filed
with the Commission and each amendment thereto
15
(in each case excluding exhibits), (B) each Preliminary Prospectus, the
Prospectus and any amended or supplemented Prospectus, (C) each Issuer Free
Writing Prospectus and (D) any document incorporated by reference in any
Preliminary Prospectus or the Prospectus; and, if the delivery of a prospectus
is required at any time after the date hereof in connection with the offering or
sale of the Stock relating thereto and if at such time any events shall have
occurred as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made when such Prospectus is delivered,
not misleading, or, if for any other reason it shall be necessary to amend or
supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the
Securities Act or the Exchange Act, to notify the Representatives and, upon
their request, to file such document and to prepare and furnish without charge
to each Underwriter and to any dealer in securities as many copies as the
Representatives may from time to time reasonably request of an amended or
supplemented Prospectus which will correct such statement or omission or effect
such compliance;
(iv) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the Prospectus
that may, in the judgment of the Company or the Representatives, be required by
the Securities Act or requested by the Commission;
(v) Prior to filing with the Commission any amendment or supplement to
the Registration Statement or the Prospectus, any document incorporated by
reference in the Prospectus or any amendment to any document incorporated by
reference in the Prospectus, to furnish a copy thereof to the Representatives
and counsel for the Underwriters and obtain the consent of the Representatives
to the filing (which consent shall not be unreasonably withheld);
(vi) Not to make any offer relating to the Stock that would constitute
an Issuer Free Writing Prospectus without the prior written consent of the
Representatives;
(vii) To retain in accordance with the Rules and Regulations all Issuer
Free Writing Prospectuses not required to be filed pursuant to the Rules and
Regulations; and if at any time after the date hereof any events shall have
occurred as a result of which any Issuer Free Writing Prospectus, as then
amended or supplemented, would conflict with the information in the Registration
Statement, the most recent Preliminary Prospectus or the Prospectus or would
include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or, if for any other
reason it shall be necessary to amend or supplement any Issuer Free Writing
Prospectus, to notify the Representatives and, upon its request, to file such
document and to prepare and furnish without charge to each Underwriter as many
copies as the Representatives may from time to time reasonably request of an
amended or supplemented Issuer Free Writing Prospectus that will correct such
conflict, statement or omission or effect such compliance;
(viii) As soon as practicable and, in any event, no later than 15 months
after the Effective Date, to make generally available to the Company's security
holders and to deliver to the Representatives an earnings statement of the
Company and its subsidiaries (which need not
16
be audited) complying with Section 11(a) of the Securities Act and the Rules and
Regulations (including, at the option of the Company, Rule 158);
(ix) For a period of three years following the Effective Date, to
furnish to the Representatives copies of all materials furnished by the Company
to its shareholders and all public reports and all reports and financial
statements furnished by the Company to the principal national securities
exchange upon which the Common Stock may be listed pursuant to requirements of
or agreements with such exchange or to the Commission pursuant to the Exchange
Act or any rule or regulation of the Commission thereunder;
(x) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Stock for offering and
sale under the securities laws of such jurisdictions as the Representatives may
request and to comply with such laws so as to permit the continuance of sales
and dealings therein in such jurisdictions for as long as may be necessary to
complete the distribution of the Stock; provided that in connection therewith
the Company shall not be required to qualify as a foreign corporation or to file
a general consent to service of process in any jurisdiction in which it is not
so qualified or subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise subject;
(xi) For a period commencing on the date hereof and ending on the 90th
day after the date of the Prospectus (the "LOCK-UP PERIOD"), not to, directly or
indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter
into any transaction or device which is designed to, or could be expected to,
result in the disposition by any person at any time in the future of) any shares
of Common Stock or securities convertible into or exchangeable for Common Stock
(other than the Stock and securities convertible into or exchangeable for Common
Stock issued pursuant to the 2004 Plan), or sell or grant options, rights or
warrants with respect to any shares of Common Stock or securities convertible
into or exchangeable for Common Stock (other than the grant of Common Stock or
securities convertible into or exchangeable for Common Stock pursuant to the
2004 Plan), (2) enter into any swap or other derivatives transaction that
transfers to another, in whole or in part, any of the economic benefits or risks
of ownership of such shares of Common Stock, whether any such transaction
described in clause (1) or (2) above is to be settled by delivery of Common
Stock or other securities, in cash or otherwise, (3) file or cause to be filed a
registration statement, including any amendments, with respect to the
registration of any shares of Common Stock or securities convertible,
exercisable or exchangeable into Common Stock or any other securities of the
Company or (4) publicly disclose the intention to do any of the foregoing, in
each case without the prior written consent of Xxxxxx Brothers Inc. on behalf of
the Underwriters; and to cause each stockholder, optionholder, officer and
director of the Company to furnish to the Xxxxxx Brothers Inc., prior to the
First Delivery Date, a letter or letters, substantially in the form of Exhibit A
hereto;
(xii) To apply the net proceeds from the sale of the Stock as set forth
in the Prospectus;
(xiii) To take such steps as shall be necessary to ensure that neither
the Company nor any subsidiary shall become an "investment company" as defined
in the Investment Company Act;
17
(xiv) To comply, in all material respects, with all effective applicable
provisions of the Xxxxxxxx-Xxxxx Act of 2002, as amended, and the rules and
regulations promulgated thereunder.
(b) Each Underwriter severally agrees that such Underwriter shall not
include any "issuer information" (as defined in Rule 433) in any "free writing
prospectus" (as defined in Rule 405) used or referred to by such Underwriter
without the prior consent of the Company (any such issuer information with
respect to whose use the Company has given its consent, ("PERMITTED ISSUER
INFORMATION"); provided that no such consent shall be required with respect to
any such issuer information contained in any document filed by the Company with
the Commission prior to the use of such free writing prospectus.
SECTION 6. Expenses. The Company agrees to pay (a) the costs incident to the
authorization, issuance, sale and delivery of the Stock and any taxes payable in
that connection; (b) the costs incident to the preparation, printing and filing
under the Securities Act of the Registration Statement (including any exhibits
thereto), any Preliminary Prospectus, the Prospectus, any Issuer Free Writing
Prospectus and any amendment or supplement thereto; (c) the costs of
distributing the Registration Statement as originally filed and each amendment
thereto and any post-effective amendments thereof (including, in each case,
exhibits), any Preliminary Prospectus, the Prospectus, any Issuer Free Writing
Prospectus and any amendment or supplement thereto, or any document incorporated
by reference therein, all as provided in this Agreement; (d) the costs of
producing and distributing this Agreement, any supplemental agreement among the
Underwriters and any other related documents in connection with the offering,
purchase, sale and delivery of the Stock; (e) the filing fees incident to
securing the review by the National Association of Securities Dealers, Inc. of
the terms of sale of the Stock (including related reasonable fees and expenses
of counsel to the Underwriters); (f) any applicable listing or other fees; (g)
the fees and expenses of qualifying the Stock under the securities laws of the
several jurisdictions as provided in Section 5(a)(x) and of preparing, printing
and distributing a Blue Sky Memorandum (including related fees and expenses of
counsel to the Underwriters); (h) the costs and expenses of the Company relating
to investor presentations on any "road show" undertaken in connection with the
marketing of the offering of the Stock, including, without limitation, expenses
associated with the production of road show slides and graphics, fees and
expenses of any consultants engaged in connection with the road show
presentations with the prior approval of the Company, travel and lodging
expenses of the representatives and officers of the Company and any such
consultants, and the cost of any aircraft chartered in connection with the road
show and (i) all other costs and expenses incident to the performance of the
obligations of the Company under this Agreement; provided that, except as
provided in this Section 6, in Section 8 and in Section 11, the Underwriters
shall pay their own costs and expenses, including the costs and expenses of
their counsel, any transfer taxes on the Stock which they may sell and the
expenses of advertising any offering of the Stock made by the Underwriters.
SECTION 7. Conditions of Underwriters' Obligations. The respective
obligations of the Underwriters hereunder are subject to the accuracy, when made
and on each Delivery Date, of the representations and warranties of the Company
contained herein, to the performance by the Company of its obligations
hereunder, and to each of the following additional terms and conditions:
18
(a) The Prospectus shall have been timely filed with the Commission in
accordance with Section 5(a)(i); the Company shall have complied with all filing
requirements applicable to any Issuer Free Writing Prospectus used or referred
to after the date hereof; no stop order suspending the effectiveness of the
Registration Statement or preventing or suspending the use of the Prospectus or
any Issuer Free Writing Prospectus shall have been issued and no proceeding for
that purpose shall have been initiated or threatened by the Commission; and any
request of the Commission for inclusion of additional information in the
Registration Statement or the Prospectus or otherwise shall have been complied
with.
(b) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Stock, the Registration
Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other
legal matters relating to this Agreement and the transactions contemplated
hereby shall be reasonably satisfactory in all material respects to counsel for
the Underwriters, and the Company shall have furnished to such counsel all
documents and information that they may reasonably request to enable them to
pass upon such matters.
(c) Xxxxxxxxxx & Xxxxx LLP shall have furnished to the Representatives
their written opinion, as special U.S. counsel to the Company, addressed to the
Underwriters and dated such Delivery Date, substantially in the form as set
forth in Exhibit B-1 and Exhibit B-2, and the Company shall have furnished to
such counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters.
(d) The Representatives shall have received from White & Case LLP,
counsel for the Underwriters, such opinion or opinions, dated such Delivery
Date, with respect to the issuance and sale of the Stock, the Registration
Statement, the Prospectus and other related matters as the Representatives may
reasonably require, and the Company shall have furnished to such counsel such
documents as they reasonably request for the purpose of enabling them to pass
upon such matters.
(e) The Representatives shall have received from Xxxx Xxxx Peek
Xxxxxxxx and Xxxxxx, special Nevada counsel for the Company, an opinion, dated
such Delivery Date, with respect to those matters set forth in Exhibit C-1 and
Exhibit C-2, and such additional matters and with such revisions as the
Representatives may reasonably require, and the Company shall have furnished to
such counsel such documents as they reasonably request for the purpose of
enabling them to pass on such matters.
(f) The Representatives shall have received from Xxxxx Xxxxxx
Xxxxxxxx, special California counsel for the Company, an opinion, dated such
Delivery Date, with respect to those matters set forth in Exhibit D-1 and
Exhibit D-2, and such additional matters and with such revisions as the
Representatives may reasonably require, and the Company shall have furnished to
such counsel such documents as they reasonably request for the purpose of
enabling them to pass on such matters.
(g) The Representatives shall have received from Carlsmith Ball LLP,
special Hawaii counsel for the Company, an opinion, dated such Delivery Date,
with respect to those matters set forth in Exhibit E, and such additional
matters and with such revisions as the Representatives
19
may reasonably require, and the Company shall have furnished to such counsel
such documents as they reasonably request for the purpose of enabling them to
pass on such matters.
(h) The Representatives shall have received from Xxxxxx & Xxxxxxxx,
special Kenya counsel for the Company, an opinion, dated such Delivery Date,
with respect to those matters set forth in Exhibit F, and such additional
matters and with such revisions as the Representatives may reasonably require,
and the Company shall have furnished to such counsel such documents as they
reasonably request for the purpose of enabling them to pass on such matters.
(i) The Representatives shall have received from Z.A.F. Consultores,
S.A., Servicios Legales Especializados, special Nicaragua counsel for the
Company, an opinion, dated such Delivery Date, with respect to those matters set
forth in Exhibit G, and such additional matters and with such revisions as the
Representatives may reasonably require, and the Company shall have furnished to
such counsel such documents as they reasonably request for the purpose of
enabling them to pass on such matters.
(j) The Representatives shall have received from Xxxxxxxxx, Archila,
Castellanos, Xxxxxxx x Xxxxxxx, S.C., special Guatemala counsel for the Company,
an opinion, dated such Delivery Date, with respect to those matters set forth in
Exhibit H, and such additional matters and with such revisions as the
Representatives may reasonably require, and the Company shall have furnished to
such counsel such documents as they reasonably request for the purpose of
enabling them to pass on such matters.
(k) The Representatives shall have received from SyCip Xxxxxxx
Xxxxxxxxx & Xxxxxxxxx, special Philippines counsel for the Company, an opinion,
dated such Delivery Date, with respect to those matters set forth in Exhibit I,
and such additional matters and with such revisions as the Representatives may
reasonably require, and the Company shall have furnished to such counsel such
documents as they reasonably request for the purpose of enabling them to pass on
such matters.
(l) The Representatives shall have received from X. Xxxxxxxx & Co.,
special Israel counsel for the Company, an opinion, dated such Delivery Date,
with respect to those matters set forth in Exhibit J, and such additional
matters and with such revisions as the Representatives may reasonably require,
and the Company shall have furnished to such counsel such documents as they
reasonably request for the purpose of enabling them to pass on such matters.
(m) At the time of execution of this Agreement, the Representatives
shall have received from PricewaterhouseCoopers LLP a letter or letters, in form
and substance satisfactory to the Representatives, addressed to the Underwriters
and dated the date hereof (i) confirming that they are an independent registered
public accounting firm with respect to the Company within the meaning of the
Securities Act and are in compliance with the applicable requirements relating
to the qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission and (ii) stating, as of the date hereof (or, with respect to matters
involving changes or developments since the respective dates as of which
specified financial information is given in the most recent Preliminary
Prospectus, as of a date not more than three days prior to the date hereof), the
conclusions and findings of such firm with respect to the financial information
and
20
other matters ordinarily covered by accountants' "comfort letters" to
underwriters in connection with registered public offerings.
(n) With respect to the letter or letters of PricewaterhouseCoopers
LLP referred to in the preceding paragraph and delivered to the Representatives
concurrently with the execution of this Agreement (the "INITIAL LETTERS"), the
Company shall have furnished to the Representatives a letter (the "BRING-DOWN
LETTER") of such accountants, addressed to the Underwriters and dated such
Delivery Date (i) confirming that they are an independent registered public
accounting firm with respect to the Company within the meaning of the Securities
Act and are in compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission, (ii) stating, as of the date of the bring-down letter (or, with
respect to matters involving changes or developments since the respective dates
as of which specified financial information is given in the Prospectus, as of a
date not more than three days prior to the date of the bring-down letter), the
conclusions and findings of such firm with respect to the financial information
and other matters covered by the initial letters and (iii) confirming in all
material respects the conclusions and findings set forth in the initial letters.
(o) The Company shall have furnished to the Representatives a
certificate, dated such Delivery Date, of either its Chairman of the Board, its
President or a Vice President and its chief financial officer stating that:
(i) The representations, warranties and agreements of the
Company in Section 1 are true and correct as of such Delivery Date; the Company
has complied with all its agreements contained herein; and the conditions set
forth in Sections 7(a) and 7(p) have been fulfilled; and
(ii) They have carefully examined the Registration Statement,
the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A)
(1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as
of its date and on the applicable Delivery Date, or (3) the Pricing Disclosure
Package, as of the Applicable Time, did not and do not contain any untrue
statement of a material fact and did not and do not omit to state a material
fact required to be stated therein or necessary to make the statements therein
(except in the case of the Registration Statement, in the light of the
circumstances under which they were made) not misleading and (B) since the
Effective Date, no event has occurred that should have been set forth in a
supplement or amendment to the Registration Statement, the Prospectus or any
Issuer Free Writing Prospectus that has not been so set forth.
(p) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included or
incorporated by reference in the most recent Preliminary Prospectus (A) any loss
or interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the most recent Preliminary Prospectus or (B) since such date,
there shall not have been any change in the capital stock or long-term debt of
the Company or any of its subsidiaries or any change, or any development that is
reasonably likely to have a Material Adverse Effect otherwise than as set forth
or contemplated in the most recent Preliminary Prospectus exclusive of any
amendments or supplements as of the date hereof, the effect of which, in any
such case described in clause (A) or
21
(B), is, in the judgment of the Representatives, so material and adverse as to
make it impracticable or inadvisable to proceed with the public offering or the
delivery of the Stock being delivered on such Delivery Date on the terms and in
the manner contemplated in the Prospectus.
(q) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or the American Stock Exchange or in
the over-the-counter market, or trading in any securities of the Company on any
exchange or in the over-the-counter market, shall have been suspended or
materially limited or the settlement of such trading generally shall have been
materially disrupted or minimum prices shall have been established on any such
exchange or such market by the Commission, by such exchange or by any other
regulatory body or governmental authority having jurisdiction, (ii) a banking
moratorium shall have been declared by federal or any state authority or a
material disruption in commercial banking or securities settlement or clearance
services in the United States, (iii) the United States shall have become engaged
in hostilities, there shall have been an escalation in hostilities involving the
United States or there shall have been a declaration of a national emergency or
war by the United States or there shall have occurred any other calamity or
crisis (other than any hostilities involving the United States and Iraq and
Afghanistan existing on the date hereof) or (iv) there shall have occurred such
a material adverse change in general economic, political or financial
conditions, including, without limitation, as a result of terrorist activities
after the date hereof (or the effect of international conditions on the
financial markets in the United States shall be such) as to make it, in the
judgment of the Representatives, impracticable or inadvisable to proceed with
the public offering or delivery of the Stock being delivered on such Delivery
Date on the terms and in the manner contemplated in the Prospectus.
(r) The New York Stock Exchange, Inc. shall have approved the Stock
for listing, subject only to official notice of issuance.
(s) No Underwriter shall have discovered and disclosed to the Company
on or prior to such Delivery Date that the Registration Statement, the
Prospectus or the Pricing Disclosure Package, or any amendment or supplement
thereto, contains an untrue statement of a fact which, in the reasonable opinion
of White & Case LLP, counsel for the Underwriters, is material or omits to state
a fact which, in the reasonable opinion of such counsel, is material and is
required to be stated therein or is necessary to make the statements therein (in
the case of the Prospectus, excluding any amendments or supplements thereto, in
light of the circumstances under which they were made) not misleading.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
SECTION 8. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each Underwriter,
its directors, officers and employees and each person, if any, who controls any
Underwriter within the meaning of the Securities Act, from and against any loss,
claim, damage or liability, joint or
22
several, or any action in respect thereof (including, but not limited to, any
loss, claim, damage, liability or action relating to purchases and sales of
Stock), to which that Underwriter, any such director, officer, employee or
controlling person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in (A) any Preliminary Prospectus, the Registration Statement,
the Prospectus or in any amendment or supplement thereto, (B) any Issuer Free
Writing Prospectus or in any amendment or supplement thereto or (C) any
Permitted Issuer Information used or referred to in any "free writing
prospectus" (as defined in Rule 405) used or referred to by any Underwriter or
(D) any "road show" (as defined in Rule 433) not constituting an Issuer Free
Writing Prospectus (a "NON-PROSPECTUS ROAD SHOW"), (ii) the omission or alleged
omission to state in any Preliminary Prospectus, the Registration Statement, the
Prospectus, any Issuer Free Writing Prospectus or in any amendment or supplement
thereto or in any Permitted Issuer Information or any Non-Prospectus Road Show,
any material fact required to be stated therein or necessary to make the
statements therein not misleading or (iii) any act or failure to act or any
alleged act or failure to act by any Underwriter in connection with, or relating
in any manner to, the Stock or the offering contemplated hereby, and which is
included as part of or referred to in any loss, claim, damage, liability or
action arising out of or based upon matters covered by clause (i) or (ii) above
(provided that the Company shall not be liable under this clause (iii) to the
extent that it is determined in a final judgment by a court of competent
jurisdiction that such loss, claim, damage, liability or action resulted
directly from any such acts or failures to act undertaken or omitted to be taken
by such Underwriter through its gross negligence or willful misconduct), and
shall reimburse each Underwriter and each such director, officer, employee or
controlling person promptly upon demand for any legal or other expenses
reasonably incurred by that Underwriter, director, officer, employee or
controlling person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or alleged untrue
statement or omission or alleged omission made in any Preliminary Prospectus,
the Registration Statement, the Prospectus, any Issuer Free Writing Prospectus
or in any such amendment or supplement thereto or in any Permitted Issuer
Information or any Non-Prospectus Road Show, in reliance upon and in conformity
with written information concerning such Underwriter furnished to the Company
through the Representatives by or on behalf of any Underwriter specifically for
inclusion therein which information consists solely of the information specified
in Section 8(e). The foregoing indemnity agreement is in addition to any
liability which the Company may otherwise have to any Underwriter or to any
director, officer, employee or controlling person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company, its officers who have signed the Registration
Statement, each of its directors, and each person, if any, who controls the
Company within the meaning of the Securities Act, from and against any loss,
claim, damage or liability, joint or several, or any action in respect thereof,
to which the Company or any such director, officer or controlling person may
become subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement, the Prospectus, any Issuer
Free Writing Prospectus or in any amendment or supplement thereto or in any Xxx-
00
Xxxxxxxxxx Xxxx Show, or (ii) the omission or alleged omission to state in any
Preliminary Prospectus, the Registration Statement, the Prospectus, any Issuer
Free Writing Prospectus or in any amendment or supplement thereto or in any
Non-Prospectus Road Show, any material fact required to be stated therein or
necessary to make the statements therein not misleading, but in each case only
to the extent that the untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with written
information concerning such Underwriter furnished to the Company through the
Representatives by or on behalf of that Underwriter specifically for inclusion
therein, which information is limited to the information set forth in Section
8(e), and shall reimburse the Company and any such director, officer or
controlling person for any legal or other expenses reasonably incurred by the
Company or any such director, officer or controlling person in connection with
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred. The foregoing
indemnity agreement is in addition to any liability which any Underwriter may
otherwise have to the Company or any such director, officer, or controlling
person.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 8 except to the extent it has
been materially prejudiced by such failure and, provided further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 8.
If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
the Representatives shall have the right to employ counsel to represent jointly
the Representatives and those other Underwriters and their respective directors,
officers, employees and controlling persons who may be subject to liability
arising out of any claim in respect of which indemnity may be sought by the
Underwriters against the Company under this Section 8 if, in the reasonable
judgment of the Representatives, it is advisable for the Representatives and
those Underwriters, directors, officers, employees and controlling persons to be
jointly represented by separate counsel, and in that event the fees and expenses
of such separate counsel shall be paid by the Company. No indemnifying party
shall (i) without the prior written consent of the indemnified parties (which
consent shall not be unreasonably withheld), settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding, or (ii) be
liable for any settlement of any such action
24
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with the consent of the indemnifying party or if there
be a final judgment of the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 8(a) or 8(b) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the other from
the offering of the Stock or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the Company on the one hand and the Underwriters on the
other with respect to the statements or omissions which resulted in such loss,
claim, damage or liability, or action in respect thereof, as well as any other
relevant equitable considerations. The relative benefits received by the Company
on the one hand and the Underwriters on the other with respect to such offering
shall be deemed to be in the same proportion as the total net proceeds from the
offering of the Stock purchased under this Agreement (before deducting expenses)
received by the Company, on the one hand, and the total underwriting discounts
and commissions received by the Underwriters with respect to the shares of the
Stock purchased under this Agreement, on the other hand, bear to the total gross
proceeds from the offering of the shares of the Stock under this Agreement, in
each case as set forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company or the
Underwriters, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable
if contributions pursuant to this Section 8(d) were to be determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take into account
the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section 8 shall be deemed
to include, for purposes of this Section 8(d), any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 8(d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the shares of Stock
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise paid or
become liable to pay by reason of any untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute as provided in
this Section 8(d) are several in proportion to their respective underwriting
obligations and not joint.
25
(e) The Underwriters severally confirm and the Company acknowledges
that (i) the statement with respect to the timing of the delivery of the Stock
by the Underwriters set forth on the cover page of the Prospectus, (ii) the
concession discussion in the first two paragraphs under the caption "Commission
and Expenses" in the Underwriting section of the Prospectus and (iii) the bullet
list of transactions appearing under the heading "Stabilization, Short Positions
and Penalty Bids" in the Underwriting section of the Prospectus are correct and
constitute the only information concerning such Underwriters furnished in
writing to the Company by or on behalf of the Underwriters specifically for
inclusion in any Preliminary Prospectus, the Registration Statement, the
Prospectus, any Issuer Free Writing Prospectus or in any amendment or supplement
thereto or in any Non-Prospectus Road Show.
SECTION 9. Defaulting Underwriters.
If, on either Delivery Date, any Underwriter defaults in the performance
of its obligations under this Agreement, the remaining non-defaulting
Underwriters shall be obligated to purchase the Stock which the defaulting
Underwriter agreed but failed to purchase on such Delivery Date in the
respective proportions which the number of shares of the Firm Stock set opposite
the name of each remaining non-defaulting Underwriter in Schedule 1 hereto bears
to the total number of shares of the Firm Stock set opposite the names of all
the remaining non-defaulting Underwriters in Schedule 1 hereto; provided,
however, that the remaining non-defaulting Underwriters shall not be obligated
to purchase any of the Stock on such Delivery Date if the total number of shares
of the Stock which the defaulting Underwriter or Underwriters agreed but failed
to purchase on such date exceeds 9.09% of the total number of shares of the
Stock to be purchased on such Delivery Date, and any remaining non-defaulting
Underwriter shall not be obligated to purchase more than 110% of the number of
shares of the Stock which it agreed to purchase on such Delivery Date pursuant
to the terms of Section 2. If the foregoing maximums are exceeded, the remaining
non-defaulting Underwriters, or those other underwriters satisfactory to the
Representatives who so agree, shall have the right, but shall not be obligated,
to purchase, in such proportion as may be agreed upon among them, all the Stock
to be purchased on such Delivery Date. If the remaining Underwriters or other
underwriters satisfactory to the Representatives do not elect to purchase the
shares which the defaulting Underwriter or Underwriters agreed but failed to
purchase on such Delivery Date, this Agreement (or, with respect to the Second
Delivery Date, the obligation of the Underwriters to purchase, and of the
Company to sell, the Option Stock) shall terminate without liability on the part
of any non-defaulting Underwriter or the Company, except that the Company will
continue to be liable for the payment of expenses to the extent set forth in
Sections 6 and 11. As used in this Agreement, the term "UNDERWRITER" includes,
for all purposes of this Agreement unless the context requires otherwise, any
party not listed in Schedule 1 hereto who, pursuant to this Section 9, purchases
Stock which a defaulting Underwriter agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have to the Company for damages caused by its default. If other
Underwriters are obligated or agree to purchase the Stock of a defaulting or
withdrawing Underwriter, either the Representatives or the Company may postpone
the Delivery Date for up to seven full business days in order to effect any
changes that in the opinion of counsel for the Company or counsel for the
Underwriters may be necessary in the Registration Statement, the Prospectus or
in any other document or arrangement.
26
SECTION 10. Termination. The obligations of the Underwriters hereunder may be
terminated by the Representatives by notice given to and received by the Company
prior to delivery of and payment for the Firm Stock if, prior to that time, any
of the events described in Sections 7(p) or 7(q), shall have occurred or if the
Underwriters shall decline to purchase the Stock for any reason permitted under
this Agreement.
SECTION 11. Reimbursement of Underwriters' Expenses. If the Company shall fail
to tender the Stock for delivery to the Underwriters by reason of any failure,
refusal or inability on the part of the Company to perform any agreement on its
part to be performed, or because any other condition of the Underwriters'
obligations hereunder required to be fulfilled by the Company is not fulfilled
(unless such non-fulfillment is due to any action or inaction by an Underwriter
of its obligations hereunder), the Company will reimburse the Underwriters for
all reasonable out-of-pocket expenses (including reasonable fees and
disbursements of counsel) incurred by the Underwriters in connection with this
Agreement and the proposed purchase of the Stock, and upon demand the Company
shall pay the full amount thereof to the Representatives. If this Agreement is
terminated pursuant to Section 9 by reason of the default of one or more
Underwriters, the Company shall not be obligated to reimburse any defaulting
Underwriter on account of those expenses.
SECTION 12. Notices, Etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail or
facsimile transmission to Xxxxxx Brothers Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Syndicate Registration (Fax: 000-000-0000), with a
copy, in the case of any notice pursuant to Section 8(c), to the Director of
Litigation, Office of the General Counsel, Xxxxxx Brothers Inc., 000 Xxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (Fax: 000-000-0000);
(b) if to the Company, shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Chief Executive Officer at 000 Xxxx Xxxxxx,
Xxxxxx, Xxxxxx 00000 (Fax: 000-000-0-000-0000) with a copy to Xxxxxxxxxx & Xxxxx
LLP, 00 Xxxxxxxxxxx Xxxxx, Xxx Xxxx, XX 00000 Attention: Xxxx Xxxxx, Esq. and
Xxxxxx X. Xxxxxxx, Esq. (Fax: (000) 000-0000); provided, however, that any
notice to an Underwriter pursuant to Section 8(c) shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its acceptance telex to the Representatives, which address will be
supplied to any other party hereto by the Representatives upon request. Any such
statements, requests, notices or agreements shall take effect at the time of
receipt thereof. The Company shall be entitled to act and rely upon any request,
consent, notice or agreement given or made on behalf of the Underwriters by
Xxxxxx Brothers Inc. on behalf of the Representatives.
SECTION 13. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Underwriters, the Company, and
their respective successors. This Agreement and the terms and provisions hereof
are for the sole benefit of only those persons, except that (A) the
representations, warranties, indemnities and agreements of the Company contained
in this Agreement shall also be deemed to be for the benefit of the directors,
officers and the person or persons, if any, who control any Underwriter within
the meaning of
27
Section 15 of the Securities Act and (B) the indemnity agreements of the
Underwriters contained in Section 8(b) of this Agreement shall be deemed to be
for the benefit of directors of the Company, officers of the Company who have
signed the Registration Statement and any person controlling the Company within
the meaning of Section 15 of the Securities Act. Nothing in this Agreement is
intended or shall be construed to give any person, other than the persons
referred to in this Section 13, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained herein.
SECTION 14. Research Analyst Independence. The Company acknowledges that the
Underwriters' research analysts and research departments are required to be
independent from their respective investment banking divisions and are subject
to certain regulations and internal policies, and that such Underwriters'
research analysts may hold views and make statements or investment
recommendations and/or publish research reports with respect to the Company
and/or the offering that differ from the views of their respective investment
banking divisions. The Company hereby waives and releases, to the fullest extent
permitted by law, any claims that the Company may have against the Underwriters
with respect to any conflict of interest that may arise from the fact that the
views expressed by their independent research analysts and research departments
may be different from or inconsistent with the views or advice communicated to
the Company by such Underwriters' investment banking divisions. The Company
acknowledges that each of the Underwriters is a full service securities firm and
as such from time to time, subject to applicable securities laws, may effect
transactions for its own account or the account of its customers and hold long
or short positions in debt or equity securities of the companies that may be the
subject of the transactions contemplated by this Agreement.
SECTION 15. No Fiduciary Relationship. The Company acknowledges and agrees
that in connection with this offering, sale of the Stock or any other services
the Underwriters may be deemed to be providing hereunder, notwithstanding any
preexisting relationship, advisory or otherwise, between the parties or any oral
representations or assurances previously or subsequently made by the
Underwriters: (i) no fiduciary or agency relationship between the Company and
any other person, on the one hand, and the Underwriters, on the other, exists;
(ii) the Underwriters are not acting as advisors, expert or otherwise, to the
Company, including, without limitation, with respect to the determination of the
public offering price of the Stock, and such relationship between the Company,
on the one hand, and the Underwriters, on the other, is entirely and solely
commercial, based on arms-length negotiations; (iii) any duties and obligations
that the Underwriters may have to the Company shall be limited to those duties
and obligations specifically stated herein; and (iv) the Underwriters and their
respective affiliates may have interests that differ from those of the Company.
The Company hereby waives any claims that the Company may have against the
Underwriters with respect to any breach of fiduciary duty in connection with the
offering and sale of the Stock.
SECTION 16. Survival. The respective indemnities, representations, warranties
and agreements of the Company and the Underwriters contained in this Agreement
or made by or on behalf of them, respectively, pursuant to this Agreement, shall
survive the delivery of and payment for the Stock and shall remain in full force
and effect, regardless of any investigation made by or on behalf of any of them
or any person controlling any of them.
28
SECTION 17. Definition of the Terms "BUSINESS DAY" and "SUBSIDIARY". For
purposes of this Agreement, (a) "BUSINESS DAY" means each Monday, Tuesday,
Wednesday, Thursday or Friday which is not a day on which banking institutions
in New York are generally authorized or obligated by law or executive order to
close and (b) "SUBSIDIARY" has the meaning set forth in Rule 405 of the Rules
and Regulations.
SECTION 18. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of New York applicable to agreements made and
performed in the State of New York without regard to conflicts of laws
provisions.
SECTION 19. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
SECTION 20. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
29
If the foregoing correctly sets forth the agreement between the Company
and the Underwriters, please indicate your acceptance in the space provided for
that purpose below.
Very truly yours,
ORMAT TECHNOLOGIES, INC.
By /s/ Xxxxxxx Xxxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Chief Executive Officer
30
Accepted:
By: XXXXXX BROTHERS INC.
By /s/ Xxxx Xxxxxxxx
------------------------
Authorized Representative
By: XXXXXXX, SACHS & CO.
By /s/ Xxxxxxx, Xxxxx & Co.
-------------------------
Authorized Representative
For themselves and as Representatives
of the several Underwriters named in Schedule 1 hereto.
SCHEDULE 1
Underwriter Number of Shares of Firm Stock to be Purchased
----------- ----------------------------------------------
Xxxxxx Brothers Inc. 1,575,000
Xxxxxxx, Xxxxx & Co. 1,015,000
Citigroup Global Markets Inc. 525,000
HSBC Securities (USA) Inc. 175,000
RBC Capital Markets Corporation 175,000
Dundee Securities Inc. 35,000
=========
Total: 3,500,000
SCHEDULE 2
LIST OF SIGNIFICANT SUBSIDIARIES OF THE COMPANY
State/Jurisdiction of
Name Incorporation or Organization
---- -----------------------------
Xxxxx Power Partners Nevada
Ormat Systems Ltd. Israel
Ormat International, Inc. Delaware
Ormat Nevada, Inc. Delaware
Ormat Funding Corp. Delaware
OrCal Geothermal, Inc. Delaware
OrHeber 1, Inc. Delaware
ORMESA LLC Delaware
Ormat Holding Corp. Cayman Islands
Heber Field Company California
Second Imperial Geothermal Company L.P. California
Heber Geothermal Company California
Mammoth Pacific L.P. California
OrPower 4, Inc. Cayman Islands
Ormat Momtombo Power Company Cayman Islands
Orleyte Company Cayman Islands
Ormat-Leyte Co. Ltd. Philippines
OrMammoth Inc. Delaware
Ormat Pacific Inc. Delaware
OREG 1 Inc. Delaware
Puna Geothermal Venture, L.P. Delaware
Mammoth Pacific, L.P. Delaware
Exhibit A
LOCK-UP LETTER AGREEMENT
XXXXXX BROTHERS INC.
As Representative of the several
Underwriters named in Schedule 1
to the Underwriting Agreement,
c/x Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
The undersigned understands that you and certain other firms (the
"UNDERWRITERS") propose to enter into an Underwriting Agreement (the
"UNDERWRITING AGREEMENT") providing for the purchase by the Underwriters of
shares (the "SHARES") of Common Stock, par value $0.001 per share (the "COMMON
SHARES"), of Ormat Technologies, Inc., a Delaware corporation (the "COMPANY"),
and that the Underwriters propose to reoffer the Shares to the public (the
"OFFERING").
In consideration of the execution of the Underwriting Agreement by the
Underwriters, and for other good and valuable consideration, the undersigned
hereby irrevocably agrees that, without the prior written consent of Xxxxxx
Brothers Inc. on behalf of the Underwriters, the undersigned will not, directly
or indirectly, (1) offer for sale, sell, pledge, or otherwise dispose of (or
enter into any transaction or device that is designed to, or could be expected
to, result in the disposition by any person at any time in the future of) any
Common Shares (including, without limitation, Common Shares that may be deemed
to be beneficially owned by the undersigned in accordance with the rules and
regulations of the Securities and Exchange Commission and Common Shares that may
be issued upon exercise of any option or warrant) or securities convertible into
or exercisable or exchangeable for Common Shares (other than the Shares) owned
by the undersigned on the date of execution of this Lock-Up Letter Agreement or
on the date of the completion of the Offering, or (2) enter into any swap or
other derivatives transaction that transfers to another, in whole or in part,
any of the economic benefits or risks of ownership of such Common Shares,
whether any such transaction described in clause (1) or (2) above is to be
settled by delivery of Common Shares or other securities, in cash or otherwise,
(3) make any demand for or exercise any right or cause to be filed a
registration statement, including any amendments thereto, with respect to the
registration of any shares of Common Stock or securities convertible into or
exercisable or exchangeable for Common Stock or any other securities of the
Company or (4) publicly disclose the intention to do any of the foregoing, for a
period of 90 days after the date of the final Prospectus relating to the
Offering (the "LOCK-UP PERIOD").
The immediately foregoing paragraph shall not apply to (i) bona fide
gifts, sales or other dispositions of shares of any class of the Company's
capital stock, in each case, that are made exclusively between and among the
undersigned and members of the undersigned's family for
estate planning purposes (including family trusts, family corporations, family
limited liability companies or family partnerships), or affiliates (as defined
in Rule 144(a)(i) of the Securities Act of 1933, as amended) of the undersigned
(including, but not limited to, its subsidiaries (if a corporation), its
partners (if a partnership) or members (if a limited liability company)) or (ii)
a bona fide pledge of the shares of any class of the Company's capital stock,
made in the ordinary course of business, for the sole purpose of obtaining
financing for the undersigned, in the ordinary course of its business; provided,
that it shall be a condition to any such transfer or pledge (or the foreclosure
on any pledge of shares of the Company's capital stock) that (i) the
transferee/donee or pledgee agrees to be bound by the terms of this Lock-Up
Letter Agreement to the same extent as if the transferee or pledgee were a party
hereto (including, without limitation, with respect to any of the restrictions
on the sale, transfer or other disposition of such capital stock received as a
result of a foreclosure of any pledge of shares of such capital stock), (ii) no
filing by any party (donor, donee, transferor, transferee or pledgee (upon
creation of such pledge of shares or foreclosure of such pledge of shares) under
the Securities Exchange Act of 1934, as amended, shall be required or shall be
voluntarily made in connection with such transfer, distribution or pledge (or
the foreclosure of such pledge of shares) (other than a filing on a Form 5,
Schedule 13D or Schedule 13G (or 13D-A or 13G-A) made after the expiration of
the Lock-Up Period), (iii) each party (donor, donee, transferor, transferee or
pledgee) shall not be required by law (including without limitation the
disclosure requirements of the Securities Act of 1933, as amended, and the
Securities Exchange Act of 1934) to make, and shall agree to not voluntarily
make, any public announcement of the transfer, disposition or pledge (or the
foreclosure of such pledge of shares) and (iv) the undersigned notifies Xxxxxx
Brothers' Equity Capital Markets at least two business days prior to the
proposed transfer, disposition or pledge (or foreclosure on such pledge of
shares).
In furtherance of the foregoing, the Company and its Transfer Agent are
hereby authorized to decline to make any transfer of securities if such transfer
would constitute a violation or breach of this Lock-Up Letter Agreement.
It is understood that, if the Company notifies you that it does not intend
to proceed with the Offering, if the Underwriting Agreement does not become
effective on or before September 30, 2006, or if the Underwriting Agreement
(other than the provisions thereof which survive termination) shall terminate or
be terminated prior to payment for and delivery of the Shares, the undersigned
will be released from its obligations under this Lock-Up Letter Agreement.
The undersigned understands that the Company and the Underwriters will
proceed with the Offering in reliance on this Lock-Up Letter Agreement.
Whether or not the Offering actually occurs depends on a number of
factors, including market conditions. Any Offering will only be made pursuant to
an Underwriting Agreement, the terms of which are subject to negotiation between
the Company and the Underwriters.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into this Lock-Up Letter Agreement and that,
upon request, the undersigned will execute any additional documents necessary in
connection with the enforcement hereof. Any obligations of the undersigned shall
be binding upon the heirs, personal representatives, successors and assigns of
the undersigned.
Very truly yours,
[___________________________]
By: _________________________________
Name:
Title:
Dated:
EXHIBIT B-1
[Form of Opinion and Disclosure Letter of Xxxxxxxxxx & Xxxxx LLP]
(1) The Company and each of its subsidiaries listed on Schedule
A-1 hereto has been duly incorporated and is validly existing as a corporation
in good standing under the laws of the State of Delaware, is duly qualified to
do business and is in good standing as a foreign corporation in each
jurisdiction in which its respective ownership or lease of property or the
conduct of its respective business requires such qualification and has all power
and authority necessary to own or hold its respective properties and conduct the
businesses in which it is engaged.
(2) Each of the Company's subsidiaries listed on Schedule A-2
hereto (the subsidiaries listed on Schedule A-l and A-2 hereinafter
collectively, the "Opinion Subsidiaries") has been duly formed, and is validly
existing as a limited liability company in good standing under the laws of the
State of Delaware, is duly qualified to do business as a foreign limited
liability company in each jurisdiction in which its respective ownership or
lease of property or the conduct of its respective business requires such
qualification and has all power and authority necessary to own or hold its
respective properties and conduct the businesses in which it is engaged.
(3) The Company has an authorized capitalization as set forth in
the most recent Preliminary Prospectus and the Prospectus. All of the
outstanding shares of the Company's Common Stock have been duly and validly
authorized and issued, are fully paid and non-assessable and conform to the
description thereof contained in the most recent Preliminary Prospectus and the
Prospectus. All of the Company's options, warrants and other rights to purchase
or exchange any securities for shares of the Company's capital stock have been
duly and validly authorized and issued, and conform to the description thereof
contained in the most recent Preliminary Prospectus and the Prospectus. All of
the issued shares of capital stock of each corporate Opinion Subsidiary of the
Company, other than Western State Geothermal Company, a Delaware corporation (as
to which we express no opinion), have been duly and validly authorized and
issued and are fully paid and non-assessable. All of the issued shares of
capital stock of each corporate Opinion Subsidiary of the Company are owned
directly or indirectly by the Company, and, to the best of our knowledge, are,
except as described in the most recent Preliminary Prospectus, owned free and
clear of all liens, encumbrances, equities or claims.
(4) The Securities have been duly and validly authorized and, when
issued and delivered against payment therefor, will be duly and validly issued,
fully paid and non-assessable.
(5) Except as described in the most recent Preliminary Prospectus,
there are no preemptive or other rights to subscribe for or to purchase, nor any
restriction upon the voting or transfer of, any of the Securities pursuant to
the Company's Second Amended and Restated Certificate of Incorporation or Second
Amended and Restated By-Laws of the Company, each as amended to date, or any
agreement or other instrument known to us.
Exhibit B-1
Page 2
(6) To the best of our knowledge and other than as set forth in
the most recent Preliminary Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is a party
or of which any property or assets of the Company or any of its subsidiaries is
the subject which, if determined adversely to the Company or any of its
subsidiaries, could have a Material Adverse Effect (as defined in the
Underwriting Agreement); and, to the best of our knowledge, no such proceedings
are threatened or contemplated by governmental authorities or threatened by
others.
(7) The Registration Statement was declared effective under the
Act as of January 31, 2006, the most recent Preliminary Prospectus and the
Prospectus were filed with the Securities and Exchange Commission (the
"Commission") pursuant to and within the time period required by Rule 424(b) and
no stop order suspending the effectiveness of the Registration Statement has
been issued and, to our knowledge, no proceeding for that purpose is pending or
threatened by the Commission.
(8) The statements contained in the most recent Preliminary
Prospectus and the Prospectus under the captions "Description of Common Stock We
May Offer" and "United States Federal Income Tax Consequences to Non-U.S.
Holders", insofar as they describe U.S federal statutes, rules and regulations,
constitute a fair summary thereof and the opinion of such counsel filed as
Exhibit 5.1 to the Registration Statement is confirmed and the Underwriters may
rely upon such opinion as if it were addressed to them.
(9) To the best of our knowledge, there are no contracts or other
documents which are required to be described in the most recent Preliminary
Prospectus, the Prospectus or filed as exhibits to the documents incorporated by
reference therein by the Act or by the rules and regulations of the Commission
which have not been described in the most recent Preliminary Prospectus, the
Prospectus or filed as exhibits to documents incorporated by reference therein.
(10) The Underwriting Agreement has been duly authorized, executed
and delivered by the Company.
(11) The issue and sale of the Securities being delivered on the
date hereof by the Company pursuant to the Underwriting Agreement and the
execution, delivery and performance by the Company of its obligations under the
Underwriting Agreement will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under: (i) any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument listed on Schedule B hereto, (ii) the Second Amended and Restated
Certificate of Incorporation or the Second Amended and Restated By-Laws of the
Company, each as amended to date, or the provisions of the respective
certificates of incorporation or by-laws or organizational documents, as the
case may be, of the Opinion Subsidiaries, each as amended to date, or (iii) any
statute or any order, rule or regulation known to us of any New York or federal
court or governmental authority having jurisdiction over the Company or the
Opinion Subsidiaries or any of their properties or assets (provided, however,
that for the purposes of this paragraph (iii) we express no opinion with respect
to state securities laws or other anti-fraud laws, provided, further, that
insofar as performance by the Company of its obligations under the Underwriting
Agreement is concerned, we express no opinion as to the effects of any
bankruptcy, insolvency, reorganization, moratorium and similar laws of general
applicability
Exhibit B-1
Page 3
relating to or affecting creditors' rights on the enforceability of the
Company's obligations); and, except for the registration of the Securities under
the Act and such consents, approvals, authorizations, registrations or
qualifications as may be required under the Securities Exchange Act of 1934, as
amended, applicable state securities laws of the various states of the United
States (as to which we express no opinion) and the New York Stock Exchange,
Inc., if any, in connection with the purchase and distribution of the Securities
by the Underwriters, no consent, approval, authorization or order of, or filing
or registration with, any such New York or federal governmental authority is
required for the execution, delivery and performance of the Underwriting
Agreement and the consummation of the transactions contemplated hereby, except
for such consents, approvals, authorizations, orders, filings or registrations
as have been obtained or made.
(12) Except as described in the most recent Preliminary Prospectus,
to the best of our knowledge, there are no contracts, agreements or
understandings between the Company and any person granting such person the right
to require the Company to file a registration statement under the Act with
respect to any securities of the Company owned or to be owned by such person or
to require the Company to include such securities in the securities registered
pursuant to the Registration Statement or in any securities being registered
pursuant to any other registration statement filed by the Company under the Act.
(13) Neither the Company nor any Opinion Subsidiary is an
"investment company" as defined in the Investment Company Act.
In rendering the above opinion, counsel may state that its opinion is
limited to matters governed by the federal laws of the United States of America,
the laws of the State of New York and the General Corporation Law of the State
of Delaware.
Such counsel shall also deliver an opinion or letter to the
Representatives, addressed to the Underwriters and dated such Delivery Date, in
form and substance satisfactory to the Representatives, to the effect that (x)
such counsel has acted as special U.S. counsel to the Company in connection with
the preparation of the Registration Statement, the Prospectus and the Pricing
Disclosure Package, (y) (A) The Registration Statement, on the Effective Date
and on the applicable Delivery Date, and (B) the most recent Preliminary
Prospectus and the Prospectus, when filed with the Commission pursuant to Rule
424(b) and on the applicable Delivery Date, were, on their face, appropriately
responsive, in all material respects, to the requirements of the Securities Act
and the Rules and Regulations, except that in each case such counsel need
express no opinion with respect to the financial statements or other financial
and statistical data contained or incorporated by reference in or omitted from
the Registration Statement, the most recent Preliminary Prospectus or the
Prospectus, and (z) based on the foregoing, no facts have come to the attention
of such counsel which lead it to believe that:
(a) the Registration Statement, as of the Effective Date,
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make
the statements therein not misleading;
(b) the Prospectus, as of its date and as of such Delivery Date,
contained or contains any untrue statement of a material fact or omitted
or omits to state a material fact
Exhibit B-1
Page 4
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; or
(c) as of the Applicable Time, the most recent Preliminary
Prospectus, together with each Issuer Free Writing Prospectus filed or
used by the Company on or before the Applicable Time, when considered
together with the price of the Stock and the number of shares offered
included on the cover page of the Prospectus, contained any untrue
statement of a material fact or omitted to state any material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading,
except that in each case such counsel need express no opinion with respect to
the financial statements or other financial and statistical data contained or
incorporated by reference in or omitted from the Registration Statement, the
Prospectus or the most recent Preliminary Prospectus. The foregoing opinion and
statement may be qualified by a statement to the effect that such counsel does
not assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement, the Prospectus or the most
recent Preliminary Prospectus (other than as set forth in clause (10) above).
Exhibit B-1
Page 5
Schedules A-1 and A-2
List of Opinion Subsidiaries Jurisdiction
---------------------------- ------------
OrCal Geothermal Inc. Delaware
Xxxx XX, Inc. Delaware
Orda V, Inc. Delaware
Orda 7, Inc. Delaware
Orda 8, Inc. Delaware
OREG 1, Inc. Delaware
OREG 2, Inc. Delaware
OrHeber 1, Inc. Delaware
OrHeber 2, Inc. Delaware
OrHeber 3, Inc. Delaware
OrMammoth Inc. Delaware
Ormat Atlantic, Inc. Delaware
Ormat Funding Corp. Delaware
Ormat Inc. Delaware
Ormat International, Inc. Delaware
Ormat Nevada Inc. Delaware
Ormat Pacific, Inc. Delaware
Ormat Power Inc. Delaware
PGV II, Inc. Delaware
Steamboat Development Corp. Delaware
Western State Geothermal Company Delaware
Ormesa LLC Delaware
ORNI 1 LLC Delaware
ORNI 2 LLC Delaware
ORNI 3 LLC Delaware
ORNI 7 LLC Delaware
ORNI 8 LLC Delaware
ORNI 10 LLC Delaware
ORNI 11 LLC Delaware
Exhibit B-1
Page 6
ORNI 12 LLC Delaware
ORNI 13 LLC Delaware
ORNI 14 LLC Delaware
ORNI 15 LLC Delaware
ORNI 16 LLC Delaware
ORNI 17 LLC Delaware
OrPuna LLC Delaware
Steamboat Geothermal LLC Delaware
Steamboat Hills LLC Delaware
EXHIBIT B-2
[Form of Federal Regulatory and Permitting Opinion of Xxxxxxxxxx & Xxxxx LLP]
(1) Except as noted below, as of the date of this Opinion, the
Permits on Schedule A are all of the Permits presently required under the
Covered Laws of the United States of America for the ownership, use or operation
of the Facilities. Except and only to the extent qualified or limited expressly
herein or as noted on Schedule A, (i) each Permit identified on Part I of
Schedule A has been duly obtained by, or assigned to, the current owner or
operator of the respective Facility, is in full force and effect in solely the
name of the current owner or operator of the respective Facility, is final and
is not subject to any appeals or further proceedings that may result in material
adverse modification, suspension, or revocation, and all applicable
administrative and judicial appeal periods have expired, and (ii) each Permit
identified in Part II of Schedule A is not currently required under Covered
Laws, given the Facilities' current state of construction, testing or operation.
We have no reason to believe that the Permits identified in Part II of Schedule
A will not be timely obtained in the ordinary course of business without
material expense or delay prior to the time the owner or operator of the
respective Facility is required to obtain such Permits for the ownership, use or
operation of the Facilities.
(2) Each of the Facilities other than the Puna Facility is a
"qualifying small power production facility" within the meaning of Section
3(17)(C) of the Federal Power Act, as amended ("FPA"), and a "qualifying
facility" within the meaning of 18 C.F.R. ss. 292.101(b)(l). None of the
Facilities, other than the Puna Facility, will, solely as a result of the
execution and delivery of the Underwriting Agreement, the filing of the
Prospectus and the Prospectus Supplement with the Securities and Exchange
Commission, and the consummation of the transactions contemplated thereby, cease
to be a "qualifying small power production facility" within the meaning of
Section 3(17)(C) of the FPA and a "qualifying facility" within the meaning of 18
C.F.R. ss. 292.101(b)(1). The Facilities, other than the Puna Facility, qualify
for all of the exemptions from the FPA, Public Utility Holding Company Act of
2005, as amended ("PUHCA 2005"), and certain state laws and regulations provided
under 18 C.F.R ss. 292.601 and 292.602.
(3) The execution and delivery of the Underwriting Agreement and
the consummation of the transactions contemplated thereby do not require any
filing with, or consent, authorization, or approval by, the Federal Energy
Regulatory Commission under the FPA or the Public Utility Regulatory Policies
Act of 1978, as amended ("PURPA").
(4) The Puna Facility is owned by an "exempt wholesale generator,"
as such term is defined in PUHCA 2005. The Puna Facility will not, solely as a
result of the execution and delivery of the Underwriting Agreement and the
consummation of the transactions contemplated thereby, cease to be owned by an
"exempt wholesale generator," as such term is defined under PUHCA 2005.
(5) Each of the Company and the owners of the Facilities is not
subject to and will not, solely as a result of the execution and delivery of the
Underwriting Agreement and the consummation of the transactions contemplated
thereby, be subject to regulation (i) by any agency of the Government of the
United States as an "electric utility company," a "gas utility company," a
"holding company," a "subsidiary company" of a "holding company," an "affiliate"
of a "holding company," or an "associate company," as such terms are defined
under PUHCA
Exhibit B-2
Page 2
2005 or (ii) other than the Puna Facility, as a matter of federal law, under the
law of any state respecting the rates or the financial or organizational
regulation of electric utilities.
EXHIBIT C-1
[Form of Opinion of Xxxx Xxxx Peek Xxxxxxxx and Xxxxxx]
(1) Xxxxx is a general partnership duly formed and existing under
the laws of the State of Nevada. Based solely on our review of the Xxxxx
Partnership Agreement and the Xxxxx Certificate, ORNI 1 and ORNI 2 are the sole
general partners of Xxxxx.
(2) Each of the Material Project Documents to which Xxxxx is a
party constitutes a legally valid and binding obligation of Xxxxx, enforceable
against Xxxxx in accordance with its terms.
(3) Each of the Material Project Documents to which Steamboat
Geothermal is a party constitutes a legally valid and binding obligation of
Steamboat Geothermal, enforceable against Steamboat Geothermal in accordance
with its terms.
(4) Each of the Material Project Documents to which SDC is a party
constitutes a legally valid and binding obligation of SDC, enforceable against
SDC in accordance with its terms.
(5) Each of the Material Project Documents to which Ormat Nevada
is a party constitutes a legally valid and binding obligation of Ormat Nevada,
enforceable against Ormat Nevada in accordance with its terms.
(6) Each of the Material Project Documents to which ORNI 6 is a
party constitutes a legally valid and binding obligation of ORNI 6, enforceable
against ORNI 6 in accordance with its terms.
(7) Each of the Material Project Documents to which ORNI 7 is a
party constitutes a legally valid and binding obligation of ORNI 7, enforceable
against ORNI 7 in accordance with its terms.
(8) Each of the Material Project Documents to which Western States
is a party constitutes a legally valid and binding obligation of Western States,
enforceable against Western States in accordance with its terms.
(9) Each of the Material Project Documents to which Steamboat
Hills LP (formerly Yankee Caithness Joint Venture, L.P.) or Yankee Caithness
Joint Venture is a party constitutes a legally valid and binding obligation of
Steamboat Hills, LLC enforceable against Steamboat Hills, LLC in accordance with
its terms.
(10) Each of the Material Project Documents to which ORNI 3 is a
party constitutes a legally valid and binding obligation of ORNI 3, enforceable
against ORNI 3 in accordance with its terms.
(11) The issuance and sale of the Stock being delivered on the
delivery date by the Company pursuant to the Underwriting Agreement and the
execution, delivery and performance by the Company of its obligations under the
Underwriting Agreement will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a
Exhibit C-1
Page 2
default under, any Material Project Document, nor will such actions result in
any violation of the provisions of the Xxxxx Partnership Agreement or any
statute, or to our actual knowledge, any order, rule or regulation of any Nevada
or federal court or governmental authority having jurisdiction over the Project
Companies or any of their properties or assets.
EXHIBIT C-2
[Form of Permitting Opinion of Xxxx Xxxx Peek Xxxxxxxx and Xxxxxx]
(1) As of the date of this opinion letter, there are no material
Permits (as defined below) required under current Covered Laws (as defined
below) that are necessary, or need to be obtained, by Steamboat Geothermal in
connection with the ownership, use or operation of the Steamboat 1/1A Facility,
by SDC in connection with the ownership, use and operation of the Steamboat 2/3
Facility, by Xxxxx in connection with the ownership, use or operation of the
Xxxxx Facility, by Steamboat Hills, LLC in connection with the ownership, use or
operation of the Steamboat Hills Facility, or by ORNI 7 in conjunction with the
ownership, use or operations of the Xxxxxxxx Facility, other than the Permits
listed on Permit Schedule A. Except as qualified or limited expressly herein or
as noted on Permit Schedule A, each Permit identified on Permit Schedule A has
been duly obtained by, or assigned to, Steamboat Geothermal, SDC, Xxxxx,
Steamboat Hills or ORNI 7, as applicable, is in full force and effect in solely
the applicable owner or operator's name, is final and is not subject to any
appeals or further proceedings or subject to any unsatisfied condition that may
allow material modification, suspension, or revocation, and all applicable
administrative and judicial appeals periods have expired.
(2) The execution and delivery of the Underwriting Agreement and
the consummation of the transactions contemplated thereby will not (i) require
any material Permits under the Covered Laws or (ii) violate any provision of the
Covered Laws or any rule or order issued by any state or local governmental
agency in Nevada that has jurisdiction to regulate the Nevada Facilities,
Steamboat Geothermal in connection with the ownership, use or operation of the
Steamboat 1/1A Facility, SDC in connection with the ownership, use or operation
of the Steamboat 2/3 Facility, Xxxxx in connection with the ownership, use or
operation of the Xxxxx Facilities, Steamboat Hills, LLC in connection with the
ownership, use or operation of the Steamboat Hills Facility, or ORNI 7 in
connection with the ownership, use or operation of the Xxxxxxxx Facility.
(3) The Company, Steamboat Geothermal, SDC, Xxxxx, Steamboat
Hills, LLC, and ORNI 7 will not become subject to regulation under the Covered
Laws as a result of the consummation of the transactions contemplated by the
Underwriting Agreement beyond such regulation under the Covered Laws to which
the Company, Steamboat Geothermal, SDC, Xxxxx, Steamboat Hills, LLC or ORNI 7
were subject prior to the consummation of the transactions contemplated by the
Underwriting Agreement.
EXHIBIT D-1
[Form of Opinion of Xxxxx Xxxxxx Xxxxxxxx]
(1) Mammoth-Pacific L.P. and Second Imperial Geothermal Company
are limited partnerships duly formed and validly existing under the laws of
California; Heber Field Company and Heber Geothermal Company are general
partnerships under the laws of California; and each of them has all power and
authority under its partnership agreement and applicable law necessary to own or
hold its respective properties and conduct the businesses in which to our
knowledge it is engaged.
(2) The issuance and sale of the Stock pursuant to the
Underwriting Agreement and the execution, delivery and performance by the
Company of its obligations under the Underwriting Agreement will not conflict
with or result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument listed on Schedule B hereto, nor will
such actions (i) result in any violation of the provisions of the respective
partnership agreements of the Project Companies, each as amended to date; or
(ii) violate any provision of the Covered Laws or, to our knowledge, any rule or
order issued by any state or local governmental regulatory agency in California
that has jurisdiction under the Covered Laws to regulate the California
Facilities, the Steam Field and the Project Companies; and the power purchase
agreements, interconnection agreements, transmission service agreements and
lease agreements listed in Schedule B that are governed by California law are
valid and binding obligations of the respective Project Companies or Ormesa LLC,
as the case may be, enforceable against the respective Project Companies or
Ormesa LLC in accordance with their respective terms.
EXHIBIT D-2
[Form of Permitting Opinion of Xxxxx Xxxxxx Xxxxxxxx]
(1) Except as noted below, as of the date of this Opinion, the
Permits on Schedule A are all of the Permits presently required under the
Covered Laws for the ownership, use or operation of any of the California
Facilities or the Steam Field. Except and only to the extent qualified or
limited expressly herein or as noted on Schedule A, each Permit identified on
Schedule A, Part I has been duly obtained by, or assigned to, the owner or
operator of the respective California Facility or the Steam Field, is in full
force and effect in the name of the owner or operator of the respective
California Facility or the Steam Field, is final and is not subject to any
appeals or further proceedings, and all applicable administrative and judicial
appeal periods for the initial granting of such Permit have expired. Each Permit
identified in Part II of Schedule A is not currently required under Covered
Laws, given the respective California Facility or the Steam Field's current
state of construction, testing or operation. We have no reason to believe that
the Permits identified in Part II of Schedule A will not be timely obtained in
the ordinary course of business prior to the time the owner or operator of the
respective California Facility or the Steam Field is required to obtain such
Permits for the ownership, use or operation of the California Facilities or the
Steam Field.
(2) The execution and delivery of the Underwriting Agreement and
the consummation of the transactions contemplated thereby will not (i) require
any material Permits under the Energy Laws; (ii) violate any provision of the
Energy Laws or, to our knowledge, any rule or order issued by any state or local
governmental regulatory agency in California that has jurisdiction to regulate
the California Facilities, the Steam Field and any of the Project Companies
under the Energy Laws; or (iii) subject the Company or the Project Companies to
regulation under the Energy Laws beyond such regulation under the Energy Laws to
which the Company or any of the Project Companies were subject prior to the
consummation of the transactions contemplated by the Underwriting Agreement.
EXHIBIT E
[Form of Opinion of Carlsmith Ball LLP]
(1) PGV is a Hawaii general partnership duly formed, validly
existing and in good standing under the laws of the State of Hawaii and has all
requisite power and authority necessary to own or hold its properties and
conduct the business in which it is engaged.
(2) The issuance and sale of the Company's Common Stock being
delivered on a Delivery Date by the Company pursuant to the Underwriting
Agreement and the execution, delivery and performance by the Company of its
obligations under the Underwriting Agreement will not conflict with or result in
a breach or violation of any of the terms or provisions of, or constitute a
default under, any agreement or instrument listed in Schedule B.
(3) As of the date of this Opinion and under the current plan for
operation of the PGV Facility, there are no material Permits (as defined below)
required under the Covered Laws (as defined below) that are necessary, or to be
obtained by PGV, in connection with the construction, testing, interconnection,
ownership, use, operation and maintenance of, the transmission of electricity
for, and the generation and sale of electricity related to the PGV Facility,
other than the Permits described in Schedule A. Except as qualified or limited
expressly herein or as noted on Schedule A, each Permit identified on Schedule A
has been duly obtained by, or assigned to, PGV, is in full force and effect in
solely the name of PGV as the owner or operator of the PGV Facility, is final
and is not subject to any appeals or further proceedings or subject to any
unsatisfied condition that may allow material modification, suspension or
revocation, and all applicable administrative and judicial appeal periods have
expired. There are no proceedings pending or, to the best of our knowledge after
due inquiry, threatened which may result in a reversal, rescission, termination,
modification or suspension of any Permit on Permit Schedule A.
(4) The execution and delivery of the Underwriting Agreement and
the consummation of the transactions contemplated thereby will not (i) require
any Permits under the Covered Laws or (ii) violate any provision of the Covered
Laws or any rule or order issued by any United States of America governmental
regulatory agency under any federal law in the Covered Laws or by any State of
Hawaii or County of Hawaii governmental regulatory agency in the State of Hawaii
that has jurisdiction to regulate the PGV Facility and PGV (collectively, a
"GOVERNMENTAL AUTHORITY").
(5) The Company and PGV will not become subject to regulation
under the Covered Laws as a result of the consummation of the transactions
contemplated by the Underwriting Agreement beyond such regulation under the
Covered Laws to which the Company and PGV were subject to prior to the
consummation of the transactions contemplated by the Underwriting Agreement.
(6) The Power Purchase Contract, as amended, and the Transmission
Line Agreement related to the PGV Facility (as specifically identified as
documents 1 through 8 in Schedule B) are valid and binding obligations of PGV
enforceable against PGV in accordance with their respective terms. All necessary
Permits related to such Power Purchase Contract, as amended, and the
Transmission Line Agreement for the PGV Facility are final and are not subject
to any appeals or further proceedings or subject to any unsatisfied condition
that may
Exhibit E
Page 2
allow material modification, suspension or revocation, and all applicable
administrative and judicial appeal periods have expired.
EXHIBIT F
[Form of Opinion of Xxxxxx & Xxxxxxxx]
(1) The Company has delivered to the Registrar of Companies in
Kenya for registration the documents and particulars specified in Part X of the
Companies Act (Chapter 486 of the laws of Kenya) for establishment of a place of
business in Kenya and duly issued with the required certificate of compliance.
(2) The Agreements constitute the legal, valid and binding
obligations on the part of the parties thereto enforceable in accordance with
their respective terms under the laws of Kenya, subject to (a) the effect of
applicable bankruptcy, fraudulent conveyance, insolvency, reorganisation,
moratorium or other similar laws relating to or affecting creditors' rights
generally and (b) the fact that such enforceability may be limited by general
equitable principles (regardless of whether such enforceability is considered in
a proceeding in equity or at law), including without limitation (i) the possible
unavailability of specific performance, injunctive relief or any other equitable
remedy, and (ii) concepts of materiality, reasonableness, good faith and fair
dealing.
(3) The PPA provides for arbitration under the Rules of
Conciliation and Arbitration of the International Chamber of Commerce, while the
Site Agreement and the Easements provide for arbitration under the Convention on
the Settlement of Investment Disputes between States and Nationals of Other
States. Both the Foreign Judgements (Reciprocal) Enforcement Act (Chapter 43 of
the laws of Kenya) and the orders made thereunder (the "Foreign Judgements Act")
and the Arbitration Act, 1995 contain provisions for the enforcement of arbitral
awards.
(4) The Foreign Judgements Act does not apply to judgements of
courts of any states which have not entered into reciprocal enforceable
agreements with Kenya. In those cases, a final and conclusive judgement may be
sued upon in the Kenya courts but could be impeached if the Kenya courts did not
recognise the jurisdiction of the foreign court, in the case of fraud and on
other grounds.
(5) The Arbitration Act, 1995 provides for the recognition and
enforcement by the High Court of Kenya of arbitral awards irrespective of the
state in which the award is made. Enforcement is subject to compliance with the
registration procedures set out in the Act and may be refused in the limited
circumstances specified in section 37 of the Act.
(6) Save as described in paragraphs 7, 8, 9 and 10 below, it is
not necessary, in order to ensure the legality, validity, enforceability or
admissibility in evidence of any of the Documents in Kenya, that such Document
be notarised or registered, recorded or filed with any governmental or
regulatory body in Kenya or that any documentary, stamp or similar tax,
imposition or charge be paid on or in respect of the Document.
(7) The PPA, the Security Agreement and the Site Agreement have
each been duly stamped in accordance with Kenyan law.
(8) The Grant has been validly issued, duly stamped and registered
by the Government of Kenya in accordance with Kenyan law and particularly in
accordance with the provisions of the Registration of Titles Act and the
Government Lands Act.
Exhibit F
Page 2
(9) The wayleave agreements comprising the Easements have been
duly stamped and constitute the legal, valid and binding obligations of the
parties thereto in accordance with their terms. The Government of Kenya is the
beneficial owner of the land affected by the rights and privileges granted under
the Easements. However, the Government of Kenya has not as yet issued any title
for such land. For that reason, it is not possible to register the Easements
against the land concerned or to register caveats in order to prohibit any
dealing with such land unless such dealing is expressed to be subject to the
Easement or the claim of the caveator. In order to ensure however that the
Easements will be admissible in evidence in any proceedings, the Easements have
been registered in the Registry of Documents at Nairobi under the Registration
of Documents Act (Chapter 285 of the Laws of Kenya).
(10) The PPA has received the approval of the Electricity
Regulatory Board pursuant to section 21 of the Electric Xxxxx Xxx, 0000.
(11) No permits or authorisations are required by the Company for
enjoyment of the rights and privileges granted to the Company by the Grant, the
Easements or the Security Agreement.
(12) The execution and delivery of the Underwriting Agreement and
the consummation of the transactions contemplated thereby will not (i) require
any permits or authorisations under the laws of Kenya and (ii) violate any
provision of the laws of Kenya or any rule or order having the force of law
issued by any regulatory agency in Kenya having power to regulate the Plant or
the Company.
(13) Ormat Technologies, Inc. and the Company will not become
subject to regulation under the laws of Kenya as a result of the consummation of
the transactions contemplated by the Underwriting Agreement beyond such
regulation under the laws of Kenya to which Ormat Technologies Inc. and the
Company were subject prior to the consummation of the transactions contemplated
by the Underwriting Agreement.
EXHIBIT G
[Form of Opinion of Z.A.F. Consultores, S.A., Servicios Legales Especializados]
(1) Regarding the legal status of the rights under the AAP and
PPA-02-97, it is our opinion that all of such documents were legally and validly
entered into and assigned and that all of such documents are binding and
enforceable against the parties thereto according to their respective terms.
Furthermore, the services of notice required by the Covered Laws, to the
relevant parties, were carried out in a proper manner in accordance with
applicable law.
(2) Regarding the legal status of the rights under the DISNORTE
Fiduciary Account Agreement and the DISSUR Fiduciary Account Agreement, it is
our opinion that all of such documents were legally and validly entered into and
that all of such documents are binding and enforceable against the parties there
under according to their respective terms. Furthermore, the services of notice
required by the Covered Laws, to the relevant parties, were carried out in a
proper manner in accordance with applicable law.
(3) Regarding the legal status of the DISSUR and DISNORTE
Assignments, it is our opinion that such agreements are legal, valid, binding,
and enforceable against the parties thereto according to their respective terms.
Furthermore, the services of notice required by the Covered Laws, to the
concerning parties, were carried out in a proper manner in accordance with
applicable law.
(4) Regarding the legal status of the Concession of Exploitation
of the Momotombo Geothermal Field, it is our opinion that such concession has
been legally issued by Instituto Nicaraguense de Energia (INE), the competent
regulatory authority with legal capacity to grant this kind of concessions in
Nicaragua in the benefit of The Nicaraguan Electricity Company (ENEL) and is
legal, valid, binding, and enforceable according to the Covered Laws against any
third party.
(5) There is no claim, opposition or legal motion against the
validity and legality of the documents referred to above or in relation thereto.
(6) As of the date of this opinion and under the current plan for
operation of the Momotombo Geothermal Plant, there are no material Permits (as
defined above) required under the Covered Laws that are necessary to be obtained
by Ormat Momotombo Power Company in connection with the construction, testing,
interconnection, ownership, use, operation and maintenance of, the transmission
of electricity for, and the generation and sale of electricity related to the
Momotombo Geothermal Plant, other than the Permits described in Permit Schedule
A (attached hereto as Schedule A). Except as qualified or limited expressly
herein or as noted on Permit Schedule A, each Permit identified on Permit
Schedule A has been duly obtained by, or assigned to Ormat Momotombo Power
Company, as applicable, is in full force and effect in solely the name of the
operator, Ormat Momotombo Power Company, is final and is not subject to any
appeals or further proceedings or to any unsatisfied condition that may allow
material modification, suspension or revocation, and all applicable
administrative and judicial appeals periods have expired.
(7) The execution and delivery of the Underwriting Agreement and
the consummation of the transactions contemplated thereby will not (i) require
any material Permits
Exhibit G
Page 2
under the Covered Laws and (ii) violate any provision of the Covered Laws or any
rule or order issued by any state or local governmental regulatory agency in
Nicaragua that has jurisdiction to regulate the Momotombo Geothermal Plant.
(8) The Company and Momotombo Power Company (the "Project
Company") will not become subject to regulation under the Covered Laws as a
result of the consummation of the transactions contemplated by the Underwriting
Agreement beyond such regulation under the Covered Laws to which the Company and
the Project Company were subject prior to the consummation of the transactions
contemplated by the Underwriting Agreement.
EXHIBIT H
[Form of Opinion of Xxxxxxxxx, Archila, Castellanos, Xxxxxxx x Xxxxxxx, S.C.]
(1) The Company is a limited responsibility company duly
incorporated, validly existing and in good standing under the laws of Guatemala
and has the full legal right, power and authority under the laws of Guatemala to
(a) own its property and to carry on its business as now being conducted and as
proposed to be conducted, (b) carry out the 24 MW geothermal power generation
project located in Zunil, Quetzaltenango, (c) enter into and deliver the Main
Project Documents, and (d) perform its covenants and obligations under the Main
Project Documents.
(2) The execution and delivery of each of the Main Project
Documents to which the Company is a party, and the performance of the Company's
obligations under the Main Project Documents to which it is a party or by which
it may be bound, have been duly authorized by all necessary corporate action,
and each such Main Project Document constitutes the legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms.
(3) Neither the execution and delivery by the Company of the Main
Project Documents to which it is a party, nor the performance by the Company of
its obligations under such Main Project Documents or any other Main Project
Documents by which it may be bound, contravenes or violates any provisions of
the organizational documents of the Company.
(4) None of (a) the execution and delivery of the Main Project
Documents by any party thereto, (b) the performance by each such party of its
obligations thereunder, or (c) any provision of any of the Main Project
Documents contravenes or violates or will contravene or violate, any provision
of any laws of Guatemala or any of its political subdivisions thereof. None of
the Main Project Documents contains any provision that is contrary to law or
public policy in Guatemala or which for any reason would not be upheld by the
courts in Guatemala.
(5) Except for the Authorizations listed in Schedule 2 hereto, no
Authorization or other approval, consent, license or other action of or by, or
filing or registration with, or notice to any creditor or shareholder of any
party to any of the Main Project Documents or any authority of Guatemala or
publication is required to be given, obtained, made or taken in connection with
(a) the carrying on of the business of the Company, (b) the execution and
delivery of any of the Main Project Documents by any party thereto, (c) the
performance by any party to any of the Main Project Documents of its obligations
thereunder, or (d) the legality or validity, or to ensure the binding effect, of
any of the Main Project Documents.
(6) The Authorizations described in Schedule 2 hereto (a) have
been duly and effectively obtained or made and have been validly issued, in each
case, in accordance with the applicable laws of Guatemala or any political
subdivision thereof, and are in full force and effect solely in the name of the
Company, (b) are final and not subject to any appeals or further proceedings or
to any unsatisfied condition that may allow material modification, suspension or
revocation, and all applicable administrative and judicial appeal periods have
expired, and (c) will not expire by their terms during the term of the Power
Supply Agreement or require any renewal, reapplication or re-issuance during
their terms.
Exhibit H
Page 2
(7) Each of the Main Project Documents (a) is in proper and
acceptable legal form under the laws of Guatemala for admission into evidence in
any legal or arbitral proceeding in Guatemala thereunder without any further
action on the part of the Company or any other person; and (b) constitutes the
legal, valid, and binding obligations of each of the parties thereto and is
enforceable against each such party in accordance with its terms.
(8) INDE is an autonomous and decentralized governmental entity.
The execution and delivery of each of the Main Project Documents to which INDE
is a party, and the performance of INDE's obligations under the Main Project
Documents to which it is a party or by which it may be bound, have been duly
authorized by all necessary action, and each such Main Project Document
constitutes the legal, valid and binding obligation of INDE, enforceable against
INDE in accordance with its terms. The legality, validity, binding effect or
enforceability of any such Main Project Document will not be affected by any
privatization, dissolution or merger of INDE.
(9) The Main Project Documents, including the Power Supply
Agreement, are in full force and effect.
(10) The execution and delivery of the Underwriting Agreement and
the consummation of the transactions contemplated thereby will not (i) require
any Authorizations under Guatemalan Laws and (ii) violate any provision of
Guatemalan Laws or any rule or order issued by any state or local governmental
regulatory agency in Guatemala that has jurisdiction to regulate the Guatemalan
Facilities (Zunil and Amatitlan Projects) and the Company and Ortitlan, Limitada
("Ortitlan").
(11) The Company and Ortitlan will not become subject to regulation
under Guatemalan Laws as a result of the consummation of the transactions
contemplated by the Underwriting Agreement beyond such regulation under
Guatemalan Laws to which the Company and Ortitlan were subject prior to the
consummation of the transactions contemplated by the Underwriting Agreement.
(12) The Power Purchase Agreement and the Authorization to Use
Public Assets Agreement related to the Amatitlan Project are valid and binding
obligations of Ortitlan enforceable against Ortitlan in accordance with their
respective terms.
EXHIBIT I
[Form of Opinion of SyCip Xxxxxxx Xxxxxxxxx & Xxxxxxxxx]
(1) Ormat is a limited partnership organized and validly existing
under the laws of the Republic. Ormat has the power and authority to own its
property and to carry on its business as now being conducted, and has the
juridical capacity, power and authority to perform its obligations under the BOT
Agreement.
(2) The execution, delivery and performance by Ormat of each
Project Document, to which it is a party, are within Ormat's powers, do not
contravene or violate the latest Amended Articles of Limited Partnership of
Ormat dated as of April 29, 2005 or any applicable law of the Republic. Each
such Project Document expressed to be governed by the laws of the Republic is
enforceable against Ormat in accordance with its terms.
(3) No governmental approval, authorization, license, permit,
certificate, exemption, registration or other form of governmental permission or
approval is required to be obtained or taken in connection with (i) the
execution and delivery of, and the performance by Ormat of its obligations
under, the Project Documents or (ii) the construction, testing, ownership, use,
interconnection, operation and maintenance of, and the generation and sale of
electricity from the Power Plant as contemplated by each of the Project
Documents, except for (x) those governmental approvals listed in Annex A hereto,
which have been obtained by Ormat or Ormat, Inc. (for the benefit of Ormat) in
their respective names, and (y) other non-material permits and periodic filings
which were certified by Ormat to have been obtained and made but copies of which
were not available for our examination.
(4) Except where the Stock (as defined in the Underwriting
Agreement) is sold or offered for sale or distribution within the Republic, the
execution and delivery of the Underwriting Agreement and the consummation of the
transactions contemplated thereby shall not require any permits, consents or
licenses provided under, or violate any provision of, Philippine law.
(5) Unless the Stock (as defined in the Underwriting Agreement) is
sold or offered for sale or distribution within the Republic, neither OTI nor
Ormat shall become subject to regulation under Philippine law as a result of the
consummation of the transactions contemplated by the Underwriting Agreement
beyond such regulation under Philippine law to which Ormat was subject prior to
the consummation of the transactions contemplated by the Underwriting Agreement.
EXHIBIT J
[Form of Opinion of X. Xxxxxxxx & Co.]
(1) OSL has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Israel, and has all
power and authority necessary under its Memorandum of Association and its
Article of Association to own or hold its respective properties and conduct the
businesses in which it is engaged.
(2) All of the issued shares of capital stock of OSL have been
duly and validly authorized and issued and are fully paid and non-assessable and
are owned by Ormat Tech.
(3) The issue and sale of the shares of stock being delivered on
such Delivery Date, as defined in the Underwriting Agreement, by Ormat Tech
pursuant to the Underwriting Agreement and the execution, delivery and
performance of Ormat Tech's obligations under the Underwriting Agreement will
not conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under the Relevant Documents.
