Sales Agency Financing Agreement
EXHIBIT 1
Sales
Agency Financing Agreement (this “Agreement”), dated as of September 5, 2008
between MDU Resources Group, Inc., a Delaware corporation (the “Company”), and
Xxxxx Fargo Securities, LLC (“Xxxxx Fargo”).
W I T N E
S S E T H:
WHEREAS,
the Company has authorized and proposes to issue and sell in the manner
contemplated by this Agreement up to 5,000,000 Common Shares upon the terms and
subject to the conditions contained herein; and
WHEREAS,
Xxxxx Fargo has been appointed by the Company as its agent to sell the Common
Shares and agrees to use its commercially reasonable efforts to sell the Common
Shares offered by the Company upon the terms and subject to the conditions
contained herein; and
WHEREAS,
the Company and Xxxxx Fargo are parties to a Sales Agency Financing Agreement,
dated as of July 27, 2006, as amended by an Amendment to Sales Agency Financing
Agreement, dated as of June 25, 2007 (collectively, the “Prior Agreement”), and
desire that the Prior Agreement be terminated simultaneously with the
effectiveness of this Agreement.
NOW
THEREFORE, in consideration of the premises, representations, warranties,
covenants and agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
intending to be legally bound hereby, the parties hereto agree as
follows:
DEFINITIONS
Section
1.01 Certain
Definitions. For purposes of this Agreement, capitalized terms
used herein and not otherwise defined shall have the following respective
meanings:
“Actual
Sold Amount” means the number of Issuance Shares that Xxxxx Fargo has sold
during the Selling Period.
“Affiliate”
of a Person means another Person that directly or indirectly, through one or
more intermediaries, controls, is controlled by, or is under common control
with, such first- mentioned Person. The term “control” (including the
terms “controlling,” “controlled by” and “under common control with”) means the
possession, direct or indirect, of the power to direct or cause the direction of
the management and policies of a Person, whether through the ownership of voting
securities, by contract or otherwise.
“Agency
Trigger Event” has the meaning set forth in Section 4.12.
“Closing”
has the meaning set forth in Section 2.02.
“Closing
Date” means the date on which the Closing occurs.
“Comfort
Letter Trigger Event” has the meaning set forth in Section 4.08.
“Commission”
means the United States Securities and Exchange Commission.
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“Commitment
Period” means the period commencing on the date of this Agreement and expiring
on the earliest to occur of (x) the date on which Xxxxx Fargo shall have
distributed the Maximum Program Amount pursuant to this Agreement, (y) the date
this Agreement is terminated pursuant to Article VII and (z) May 28,
2011.
“Common
Shares” shall mean shares of the Company’s Common Stock issued or issuable
pursuant to this Agreement.
“Common
Stock” shall mean the Company’s Common Stock, $1.00 par value per share,
including the Rights appurtenant thereto, if any.
“Daily
Floor Price” means the prior Trading Day’s closing price on the New York Stock
Exchange, less $1.00, below which Xxxxx Fargo shall not sell Common Shares
during a particular Trading Day.
“DWAC”
has the meaning set forth in Section 2.05.
“XXXXX”
shall mean the Commission’s Electronic Data Gathering, Analysis and Retrieval
system.
“Effective
Date” has the meaning set forth in Section 3.03.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended.
“Exchange
Data” has the meaning set forth in the definition of “Monthly Floor Price
Computation.”
“Issuance”
means each occasion the Company elects to exercise its right to deliver an
Issuance Notice requiring Xxxxx Fargo to use its commercially reasonable efforts
to sell the Common Shares as specified in such Issuance Notice, subject to the
terms and conditions of this Agreement.
“Issuance
Amount” means the aggregate number of Issuance Shares to be distributed by Xxxxx
Fargo with respect to any Issuance, which may not exceed 75,000 Common Shares
during any Trading Day during any Selling Period, without the prior written
consent of Xxxxx Fargo, which may be withheld in its sole
discretion.
“Issuance
Date” means any Trading Day during the Commitment Period that an Issuance Notice
is deemed delivered pursuant to Section 2.03(b) hereof.
“Issuance
Notice” means a written notice to Xxxxx Fargo delivered in accordance with this
Agreement in the form attached hereto as Exhibit A.
“Issuance
Price” means the Sales Price less the Selling Commission.
“Issuance
Shares” means all shares of Common Stock issued or issuable pursuant to an
Issuance that has occurred or may occur in accordance with the terms and
conditions of this Agreement.
“Issuance
Supplement” has the meaning set forth in Section 3.01.
“Material
Adverse Effect” means a material adverse effect on the business, earnings,
assets, operations, properties, or condition (financial or otherwise) of the
Company and its Subsidiaries, taken as a whole, or any material adverse effect
on the Company’s ability to consummate the transactions contemplated by, or to
execute, deliver and perform its obligations under, this Agreement.
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“Material
Subsidiary” has the meaning set forth in Section 3.05.
“Maximum
Program Amount” means 5,000,000 Common Shares.
“Monthly
Floor Price” means the price computed by the Company pursuant to the Monthly
Floor Price Computation and specified in the Issuance Notice (and if the
applicable Selling Period extends into a second calendar month, updated in an
amendment to the Issuance Notice to be delivered by the Company to Xxxxx Fargo
before the Principal Market opens for trading on the first Trading Day of such
calendar month), below which Xxxxx Fargo shall not sell Common Shares on any
Trading Day during the Selling Period in such calendar month.
“Monthly
Floor Price Computation” means a price, calculated by the
Company (from New York Stock Exchange data furnished by Xxxxx Fargo
(the “Exchange Data”)) before the New York Stock Exchange opens for trading on
the first Trading Day of each calendar month, equal to 90% times the arithmetic
average of (i) the last three-month closing high price for the Common Stock,
(ii) the last three-month closing low price for the Common Stock, (iii) the last
three-month average daily closing price for the Common Stock, (iv) the 52-week
closing high price for the Common Stock, (v) the 52-week closing low price for
the Common Stock, and (vi) the most frequently traded closing price for the
Common Stock (mode) during the last three months.
“Opinion
Trigger Event” has the meaning set forth in Section 4.07.
“Person”
means an individual or a corporation, partnership, limited liability company,
trust, incorporated or unincorporated association, joint venture, joint stock
company, governmental authority or other entity of any kind.
“Principal
Market” means the New York Stock Exchange.
“Prospectus”
has the meaning set forth in Section 3.01.
“Registration
Statement” has the meaning set forth in Section 3.01.
“Representation
Date” has the meaning set forth in the initial paragraph of Article
III.
“Rights”
means the preference share purchase rights issued pursuant to the Rights
Agreement, dated as of November 12, 1998, as amended (including by any
certificate of adjustment), between the Company and Xxxxx Fargo Bank Minnesota,
N.A. (formerly known as Norwest Bank Minnesota, N.A.), as Rights
Agent.
“Sales
Price” means the actual sale execution price of each Common Share (not less than
par value) sold by Xxxxx Fargo on the Principal Market (or, in Xxxxx Fargo’s
sole discretion, any other exchange on which the Common Stock is then listed or
admitted to trading or to or through a market maker or through an electronic
communications network) hereunder in the case of ordinary brokers’ transactions,
or as otherwise agreed by the parties in other methods of sale.
“Securities
Act” means the Securities Act of 1933, as amended.
“Selling
Commission” means 0.75% of the Sales Price.
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“Selling
Period” means the period of one to twenty consecutive Trading Days (as
determined by the Company in its sole discretion and specified in the applicable
Issuance Notice) following the Trading Day on which an Issuance Notice is
delivered or deemed to be delivered pursuant to Section 2.03(b)
hereof.
“Settlement
Date” means the third (3rd)
Trading Day immediately following the sale of any Issuance Shares pursuant to
this Agreement.
“Subsidiary”
has the meaning set forth in Section 3.05.
“Trading
Day” means any day which is a trading day on the New York Stock Exchange, other
than a day on which trading is scheduled to close prior to its regular weekday
closing time.
“Utility
Regulatory Agencies” has the meaning set forth in Section 3.08.
“Voting
Stock” of any Person as of any date means the capital stock of such Person that
is at the time entitled to vote in the election of the Board of Directors of
such Person.
ARTICLE
II
SALE OF
COMMON STOCK
Section
2.01 Issuance. (a) Upon
the terms and subject to the conditions of this Agreement, the Company may sell
Common Shares through Xxxxx Fargo and Well Fargo shall use its commercially
reasonable efforts to sell Common Shares, up to the Maximum Program Amount,
based on and in accordance with such number of Issuance Notices as the Company,
in its sole discretion, shall choose to deliver during the Commitment Period
until the aggregate number of Common Shares sold under this Agreement equals the
Maximum Program Amount or this Agreement is otherwise
terminated. Subject to the foregoing and the other terms and
conditions of this Agreement, upon the delivery of an Issuance Notice, and
unless the sale of the Issuance Shares described therein has been suspended,
cancelled or otherwise terminated in accordance with the terms of this
Agreement, Xxxxx Fargo will use its commercially reasonable efforts consistent
with its normal trading and sales practices to sell such Issuance Shares up to
the Issuance Amount specified in such Issuance Notice on the Principal Market
(or, in Xxxxx Fargo’s sole discretion, any other exchange on which the Common
Stock is then listed or admitted for trading or to or through a market maker or
through an electronic communications network), and otherwise in accordance with
the terms of such Issuance Notice. Xxxxx Fargo will provide written
confirmation to the Company no later than the opening of the Trading Day next
following the Trading Day on which it has made sales of Issuance Shares
hereunder setting forth the portion of the Actual Sold Amount for such Trading
Day, the corresponding Sales Price or Prices and the Issuance Price or Prices
payable to the Company in respect thereof. Xxxxx Fargo may sell
Issuance Shares in the manner described in Section 2.01(b)
herein. The Company acknowledges and agrees that (i) there can be no
assurance that Xxxxx Fargo will be successful in selling Issuance Shares and
(ii) Xxxxx Fargo will incur no liability or obligation to the Company or any
other Person if it does not sell Issuance Shares for any reason other than a
failure by Xxxxx Fargo to use its commercially reasonable efforts consistent
with its normal trading and sales practices to sell such Issuance Shares as
required under this Section 2.01. In acting hereunder, Xxxxx Fargo
will be acting as agent for the Company and not as principal.
(b) Method of Offer and
Sale. The Common Shares may be offered and sold by any method
permitted by law deemed to be an “at-the-market offering” as defined in Rule 415
under the Securities Act, including sales made directly on the Principal Market
(or, in Xxxxx Fargo’s sole discretion, any other exchange on which the Common
Stock is then listed or admitted to trading) or sales made to or through a
market maker or through an electronic communications network.
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(c) Issuances. Upon
the terms and subject to the conditions set forth herein, on any Trading Day as
provided in Section 2.03(b) hereof during the Commitment Period on which the
conditions set forth in Sections 5.01 and 5.02 hereof have been satisfied, the
Company may exercise an Issuance by the delivery of an Issuance Notice, executed
by the Chief Executive Officer, the President, any Vice President or any other
officer of the Company so designated in writing by the Chief Executive Officer
for this purpose (each, an “Authorized Officer”), to Xxxxx Fargo. The
number of Issuance Shares that Xxxxx Fargo shall use its commercially reasonable
efforts to sell pursuant to such Issuance shall not exceed the Issuance
Amount. Each sale of Issuance Shares will be settled on the
applicable Settlement Date following such sale.
Section
2.02 Effectiveness. The
effectiveness of this Agreement (the “Closing”) shall be deemed to take place
upon the execution and delivery of this Agreement by the parties hereto, and
simultaneously with the Closing, the Prior Agreement shall be deemed to be
terminated (subject to the survival of the provisions that, by their terms,
survive such termination).
(a) At
the Closing, the following closing transactions shall take place, each of which
shall be deemed to occur simultaneously with the Closing: (i) the Company shall
deliver to Xxxxx Fargo a certificate executed by the Secretary of the Company,
signing in such capacity, dated the date of the Closing: (A) certifying that
attached thereto are true and complete copies of the resolutions duly adopted by
the Board of Directors of the Company authorizing the execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby
(including, without limitation, the issuance of the Common Shares
pursuant to this Agreement), which authorization shall be in full force and
effect on and as of the date of such certificate and (B) certifying and
attesting to the office, incumbency, due authority and specimen signatures of
each Person who executed the Agreement for or on behalf of the Company; and (ii)
the Company shall pay the expenses set forth in Section 9.02(ii), (iv) and
(viii) hereof by wire transfer to the account designated by Xxxxx Fargo in
writing prior to the Closing.
(b) In
addition, on or before the date the Company delivers its first Issuance Notice
(and as a condition to such delivery), the following transactions shall take
place: (w) the Company shall deliver to Xxxxx Fargo a certificate executed by
the Chief Executive Officer, the President or any Vice President of the Company
and by the Chief Financial Officer of the Company, signing in such capacity,
dated on or before the date of such Issuance Notice, confirming that the
representations and warranties of the Company contained in this Agreement are
true and correct in all material respects and that the Company has performed in
all material respects all of its obligations hereunder to be performed on or
prior to such date and as to the matters set forth in Section 5.01(a) hereof;
(x) Xxxxxx Xxxx Xxxxx Raysman & Xxxxxxx LLP, special counsel to the Company,
shall deliver to Xxxxx Fargo an opinion, dated the date on or before such date
and addressed to Xxxxx Fargo, substantially in the form of Exhibit B-1 attached
hereto and Xxxx X. Xxxxxxxx, Esq., General Counsel and Secretary of the Company,
shall deliver to Xxxxx Fargo an opinion, dated on or before such date and
addressed to Xxxxx Fargo, substantially in the form of Exhibit B-2 attached
hereto; (y) Deloitte & Touche LLP shall deliver to Xxxxx Fargo a
letter, dated on or before such date, in form and substance reasonably
satisfactory to Xxxxx Fargo; and (z) the Company shall pay all
expenses set forth in Section 9.02(ii), (iv) and (viii) hereof which have not
previously been paid pursuant to Section 2.02(a) hereof, by wire transfer to the
account designated by Xxxxx Fargo in writing prior to such date.
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Section
2.03 Mechanics of
Issuances. (a) Issuance
Notice. On any Trading Day during the Commitment Period,
subject to compliance with Section 2.02(b), the Company may deliver an Issuance
Notice to Xxxxx Fargo, subject to the satisfaction of the conditions set forth
in Sections 5.01 and 5.02; provided, however, that (1) the
Issuance Amount for each Issuance as designated by the Company in the applicable
Issuance Notice shall in no event exceed the product of (x) 75,000 times (y) the
number of Trading Days in the Selling Period without the prior written consent
of Xxxxx Fargo, which may be withheld in its sole discretion, (2) in no event
shall Xxxxx Fargo sell more than 1,500 Common Shares in any one order during any
given Selling Period unless otherwise expressly authorized by the Company, and
(3) notwithstanding anything in this Agreement to the contrary, Xxxxx Fargo
shall have no further obligations with respect to any Issuance Notice if and to
the extent the aggregate number of Issuance Shares sold pursuant
thereto, together with the aggregate number of Common Shares
previously sold under this Agreement, shall exceed the Maximum Program
Amount.
(b) Delivery of Issuance
Notice. An Issuance Notice shall be deemed delivered on the
Trading Day that it is received by e-mail notice, facsimile or otherwise (and
the Company confirms such delivery by e-mail notice, facsimile or by telephone
(including voicemail message)) by Xxxxx Fargo. No Issuance
Notice may be delivered other than on a Trading Day during the Commitment
Period.
(c) Floor
Prices. Xxxxx Fargo shall not sell Common Shares on any
particular Trading Day below the applicable Daily Floor Price, and shall not
sell Common Shares during any Selling Period below the applicable Monthly Floor
Price. Xxxxx Fargo shall furnish the Company with the Exchange Data,
and the Company shall provide written confirmation to Xxxxx Fargo of the
applicable Monthly Floor Price, before the New York Stock Exchange opens for
trading on the first Trading Day of each calendar month. Xxxxx Fargo
makes no representation or warranty as to the accuracy or completeness of the
Exchange Data, and Xxxxx Fargo will incur no liability or obligation to the
Company or any other Person based on or relating to the Exchange Data or any
inaccuracies therein.
(d) Determination of
Issuance Shares to be Sold. The number of Issuance Shares to
be sold by Xxxxx Fargo with respect to any Issuance shall be the Actual Sold
Amount during the Selling Period.
(e) Trading
Guidelines. Xxxxx Fargo may, to the extent permitted under the
Securities Act and the Exchange Act, purchase and sell Common Stock for its own
account while this Agreement is in effect provided that (i) no such purchase or
sale shall take place while an Issuance Notice is in effect (except to the
extent Xxxxx Fargo may engage in sales of Issuance Shares purchased or deemed
purchased from the Company ), (ii) in no circumstances shall Xxxxx Fargo have a
short position in the Common Stock for its own account and (iii) the Company
shall not be deemed to have authorized or consented to any such purchases or
sales by Xxxxx Fargo. In addition, the Company hereby
acknowledges and agrees that Xxxxx Fargo’s affiliates, subject to compliance
with Regulation M under the Exchange Act, may make markets in the Common Stock
or other securities of the Company, in connection with which they may buy and
sell, as agent or principal, for long or short account, shares of Common Stock
or other securities of the Company, at the same time Xxxxx Fargo is acting as
agent pursuant to this Agreement.
Section
2.04 Use of Free Writing
Prospectuses. Neither the Company nor Xxxxx Fargo
has prepared, used, referred to or distributed, or will prepare, use, refer to
or distribute, without the other party’s prior written consent, any “written
communication” which constitutes a “free writing prospectus” as such terms are
defined in Rule 405 under the Securities Act.
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Section
2.05 Settlements. Subject
to the provisions of Article V, on or before each Settlement Date, the Company
will, or will cause its transfer agent to, electronically transfer the Issuance
Shares being sold by crediting Xxxxx Fargo or its designee’s account at The
Depository Trust Company through its Deposit Withdrawal at Custodian System
(“DWAC”), or by such other means of delivery as may be mutually agreed upon by
the parties hereto and, concurrently with the receipt of such Issuance Shares,
which in all cases shall be freely tradable, transferable, registered shares in
good deliverable form, Xxxxx Fargo will deliver the related Issuance
Price in same day funds to an account designated by the Company. If
the Company defaults in its obligation to deliver Issuance Shares on a
Settlement Date, the Company agrees that it will (i) hold Xxxxx Fargo harmless
against any loss, claim, damage or expense (including, without limitation,
penalties, interest and reasonable legal fees and expenses), as incurred,
arising out of or in connection with such default by the Company, and (ii) pay
to Xxxxx Fargo any Selling Commission to which it would otherwise have been
entitled absent such default. The individuals listed on Schedule I
hereto shall be the contact persons for all matters related to the settlement of
the transfer of the Issuance Shares through DWAC for purposes of this Section
2.05.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
The
Company represents and warrants to, and agrees with, Xxxxx Fargo that as of the
Closing Date, as of the date of delivery of each Issuance Notice by the Company,
as of each Settlement Date and as of any time that the Registration Statement or
the Prospectus shall be amended or supplemented (each of the times referenced
above is referred to herein as a “Representation Date”), except as may be
disclosed in the Prospectus on or before a Representation Date:
Section
3.01 Registration. The
Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is
currently listed and quoted on the Principal Market under the trading symbol
“MDU”, and the Common Shares have been listed on the Principal Market, subject
to notice of issuance. The Company (i) meets the requirements for the
use of Form S-3 under the Securities Act and the rules and regulations
thereunder for the registration of the transactions contemplated by this
Agreement and (ii) has been subject to the requirements of Section 12 of the
Exchange Act and has timely filed all the material required to be filed pursuant
to Sections 13 and 14 of the Exchange Act for a period of more than 12 calendar
months. The Company has filed with the Commission a registration
statement on Form S-3 (Registration No. 333-151215), for the registration of an
unspecified amount of securities, including Common Shares, under the Securities
Act and the offering thereof from time to time pursuant to Rule 415 promulgated
by the Commission under the Securities Act. Such registration
statement, as amended, and the prospectus constituting a part of such
registration statement, together with the Prospectus Supplement (as defined in
Section 5.01(k)) and any pricing supplement relating to a particular issuance of
the Issuance Shares (each, an “Issuance Supplement”), including all documents
incorporated or deemed to be incorporated therein by reference pursuant to Item
12 of Form S-3 under the Securities Act, in each case, as from time to time
amended or supplemented, are referred to herein as the “Registration Statement”
and the “Prospectus,” respectively, except that if any revised prospectus is
provided to Xxxxx Fargo by the Company for use in connection with the offering
of the Common Shares that is not required to be filed by the Company pursuant to
Rule 424(b) promulgated by the Commission under the Securities Act, the term
“Prospectus” shall refer to such revised prospectus from and after the time it
is first provided to Xxxxx Fargo for such use. Promptly after the
execution and delivery of this Agreement, the Company will prepare and file the
Prospectus Supplement relating to the Issuance Shares pursuant to Rule 424(b)
promulgated by the Commission under the Securities Act, as contemplated by
Section 5.01(k) of this Agreement. As used in this Agreement, the
terms “amendment” or “supplement” when applied to the Registration Statement or
the Prospectus shall be deemed to include the filing by the Company with the
Commission of any document under the Exchange Act after the date hereof that is
or is deemed to be incorporated therein by reference.
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Section
3.02 Incorporated
Documents. The documents incorporated or deemed to be
incorporated by reference in the Registration Statement and the Prospectus
pursuant to Item 12 of Form S-3 (collectively, the “Incorporated
Documents”), as of the respective dates they were or hereafter are filed with
the Commission under the Exchange Act, conformed, or will conform, as the case
may be, in all material respects to the requirements of the Exchange Act and the
rules and regulations of the Commission promulgated thereunder, and, when read
together with the other information contained in or incorporated by reference in
the Registration Statement and the Prospectus, none of such documents contained
or will contain at such time an untrue statement of a material fact or omitted
or will omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
Section
3.03 The Registration Statement,
Prospectus and Disclosure at Time of Sale. No stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceeding for that purpose has been initiated or threatened by the
Commission and any request on the part of the Commission for additional
information has been complied with. The Registration Statement, as of
the Effective Date, conformed or will conform in all material respects to the
requirements of the Securities Act, and the rules and regulations of the
Commission promulgated thereunder and, as of the Effective Date and as of each
deemed effective date with respect to Xxxxx Fargo pursuant to Rule 430B(f)(2)
under the Securities Act and at each Representation Date, does not and will not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and the Prospectus, as of its original issue date, as of the date of
any filing of an Issuance Supplement thereto pursuant to Rule 424(b) promulgated
by the Commission under the Securities Act and as of the date of any other
amendment or supplement thereto, conforms or will conform in all material
respects to the requirements of the Securities Act and the rules and regulations
of the Commission promulgated thereunder and, as of such respective dates, does
not and will not contain an untrue statement of a material fact or omit to state
a material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however, that the
representations and warranties in this Section 3.03 shall not apply to any
statements or omissions made in reliance upon and in conformity with information
furnished in writing to the Company by Xxxxx Fargo expressly for use
in the Prospectus. As used herein, with respect to the Registration
Statement, the term “Effective Date” means, as of a specified time, the later of
(i) the date that the Registration Statement or the most recent post-effective
amendment thereto was or is deemed or declared effective by the Commission under
the Securities Act and (ii) the date that the Company’s Annual Report on Form
10-K for its most recently completed fiscal year is filed with the Commission
under the Exchange Act.
Section
3.04 Changes. Since
the date of the latest audited financial statements included or incorporated by
reference in the Prospectus there has been no material adverse change in the
condition (financial or otherwise), earnings, business or properties of the
Company and its Subsidiaries considered as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated by the Prospectus.
Section
3.05 Organizational
Matters. The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the State of
Delaware, with corporate power and authority to own or lease its properties and
conduct its business as described in the Registration Statement and the
Prospectus; the Company is duly qualified to transact business and is in good
standing in each jurisdiction in which the failure to so qualify would have a
Material Adverse Effect. Each Material Subsidiary of the Company has
been duly organized and validly exists as a corporation or limited liability
company, as applicable, and to the extent such concept is applicable, is in good
standing under the laws of its jurisdiction of incorporation.
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As used
in this Agreement, the term “Subsidiary” means any Person (other than a natural
person), at least a majority of the outstanding Voting Stock of which is owned
by the Company, by one or more Subsidiaries or by the Company and one or more
Subsidiaries. As used in this Agreement, the term “Material
Subsidiary” means each “significant subsidiary” of the Company (as such term is
defined in Rule 1-02 of Regulation S-X under the Securities Act). As
of the date of this Agreement, the only Material Subsidiaries are Centennial
Energy Holdings Inc., Fidelity Exploration & Production Company, Knife River
Corporation, KRC Holdings, Inc., MDU Construction Services Group, Inc., MDU
Energy Capital, LLC, Prairie Cascade Energy Holdings, Inc. and WBI Holdings,
Inc.
Section
3.06 Authorization;
Enforceability. The Company has the corporate power and
authority to execute, deliver and perform the terms and provisions of this
Agreement and has taken all necessary corporate action to authorize the
execution, delivery and performance by it of, and the consummation of the
transactions to be performed by it contemplated by, this
Agreement. No other corporate proceeding on the part of the Company
is necessary, and no consent of any shareholder in its capacity as such of the
Company is required, for the valid execution and delivery by the Company of this
Agreement, and the performance and consummation by the Company of the
transactions contemplated by this Agreement to be performed by the
Company. The Company has duly executed and delivered this
Agreement. This Agreement constitutes the valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors’ rights generally and by general principles of equity (regardless
of whether enforcement is sought in a proceeding in equity or at law) and by
limitations imposed by law and public policy on indemnification or
exculpation.
Section
3.07 Capitalization. The
Company has an authorized capitalization as set forth or incorporated by
reference in the Prospectus, and all of the outstanding shares of capital stock
of the Company have been duly authorized and validly issued and are fully paid
and non-assessable; none of the outstanding shares of capital stock of the
Company was issued in violation of the preemptive or other similar rights of any
security holder of the Company; all of the outstanding shares of capital stock
of each Material Subsidiary have been duly authorized and validly issued and are
fully paid and non-assessable; and all shares of capital stock or other equity
interests of each Material Subsidiary (other than directors’ qualifying shares)
are owned directly or indirectly by the Company, free and clear of any liens,
encumbrances or security interests, except as described in the Registration
Statement and the Prospectus. The Common Shares (in an amount up to
the Maximum Program Amount) have been duly authorized by all necessary corporate
action on the part of the Company and when issued and delivered against payment
therefor as provided in this Agreement, the Common Shares will be validly
issued, fully paid and nonassessable, free and clear of all preemptive or
similar rights, claims, liens, charges, encumbrances and security interests of
any nature whatsoever, other than any of the foregoing created by Xxxxx
Fargo. The capital stock of the Company, including the Common Shares,
conforms to the description contained in the Registration
Statement. Except as set forth in the Registration Statement or the
Prospectus, there are no outstanding options, warrants, conversion rights,
subscription rights, preemptive rights, rights of first refusal or other rights
or agreements of any nature outstanding to subscribe for or to purchase any
shares of Common Stock of the Company or any other securities of the Company of
any kind binding on the Company (except pursuant to dividend reinvestment, stock
purchase or ownership, stock option, director or employee benefit plans or
issuances of Common Stock pursuant to purchase price adjustments in connection
with acquisitions, and except for any such agreement as to which the Company
shall have provided Xxxxx Fargo with written notice) and there are no
outstanding securities or instruments of the Company containing anti-dilution or
similar provisions that will be triggered by the issuance of the Common Shares
as described in this Agreement.
S-9
There are
no restrictions upon the voting or transfer of any shares of the Company’s
Common Stock pursuant to the Company’s certificate of incorporation or
bylaws. There are no agreements or other obligations (contingent or
otherwise) that may require the Company to repurchase or otherwise acquire any
shares of its Common Stock. No Person has the right, contractual or
otherwise, to cause the Company to issue to it, or to register pursuant to the
Securities Act, any shares of capital stock or other securities of the Company
upon the filing of the Registration Statement or the issuance or sale of the
Common Shares hereunder.
Section
3.08 No
Conflicts. The execution and delivery by the Company of, and
the performance by the Company of its obligations under, this Agreement
(including the issuance and sale of the Common Shares) will not (a) conflict
with or result in a breach or violation of any of the terms or provisions of, or
constitute a default under, or result in the imposition of a lien or security
interest upon any property or assets used in the conduct of the business of the
Company or any Material Subsidiary pursuant to any material indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which the
Company or any Material Subsidiary is a party or by which the Company or any
Material Subsidiary is bound or to which any of the property or assets used in
the conduct of the business of the Company or any Material Subsidiary is
subject, (b) result in any violation of the provisions of the certificate of
incorporation or the by-laws of the Company or the organizational documents of
any Material Subsidiary or (c) result in any violation of any applicable statute
or any order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any Material Subsidiary or any of their
properties (except in each case for conflicts, breaches, violations, defaults,
liens or security interests that would not have a Material Adverse
Effect). No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is required
for the performance by the Company of its obligations under this Agreement,
except (1) such as have been, or will have been prior to the Closing Date,
obtained under the Securities Act, (2) for existing authorizations of the
Federal Energy Regulatory Commission, the Montana Public Service Commission and
the Public Service Commission of Wyoming (the “Utility Regulatory Agencies”)
dated September 13, 2006, August 19, 2008, and October 6, 2006, respectively
(which authorizations are, to the best knowledge of the Company, not the subject
of any pending or threatened application for rehearing or petition for
modification), and future authorizations of the Utility Regulatory Agencies,
which will be obtained as required, to permit the issuance and sale of the
Common Shares hereunder, (3) for such consents, approvals, authorizations,
orders, registrations or qualifications as may be required under state
securities or blue sky laws, as the case may be, and except in any case where
the failure to obtain such consent, approval, authorization, order, registration
or qualification would not have a Material Adverse Effect and (4) such as may be
required in connection with the exercise of the Rights.
Section
3.09 Legal
Proceedings. Other than as set forth in the Registration
Statement or the Prospectus, there are no legal or governmental proceedings
pending to which the Company or any of its Subsidiaries is a party or of which
any property of the Company or any of its Subsidiaries is the subject which, if
determined adversely to the Company or any of its Subsidiaries, would,
individually or in the aggregate, reasonably be expected to result in a Material
Adverse Effect and, to the best of the Company’s knowledge, no such proceedings
are threatened by governmental authorities or others.
Section
3.10 Sale of Common
Shares. Immediately after any sale of Common Shares by the
Company hereunder, the aggregate amount of Common Stock that has been issued and
sold by the Company hereunder will not exceed the aggregate amount of Common
Stock that shall be authorized by the Utility Regulatory Agencies from time to
time (in this regard, the Company acknowledges and agrees that Xxxxx Fargo shall
have no responsibility for maintaining records with respect to the aggregate
amount of Common Shares sold, or of otherwise monitoring the availability of
Common Stock for sale, under the applicable Utility Regulatory Agency
authorizations).
S-10
Section
3.11 Permits. Other
than as set forth in the Registration Statement or the Prospectus, (a) each of
the Company and the Material Subsidiaries has such permits, licenses, franchises
and authorizations of governmental or regulatory authorities (the “permits”) as
are necessary to own its respective properties and to conduct its business in
the manner described in the Prospectus, except where the failure to obtain such
permits would not reasonably be expected to have a Material Adverse Effect; (b)
to the best knowledge of the Company after due inquiry, each of the Company and
the Material Subsidiaries is in compliance with all terms and conditions of any
such permits, except where the failure to fulfill or perform any such obligation
would not reasonably be expected to have a Material Adverse Effect; and (c) no
event has occurred that allows, or after notice or lapse of time would allow,
revocation or termination of any material permits or would result in any other
material impairment of the rights of the holder of any such material
permits.
Section
3.12 Investment
Company. The Company is not, and after giving effect to the
offering and sale of the Common Shares, will not be, an “investment company”
within the meaning of the Investment Company Act of 1940, as amended (the “1940
Act”).
Section
3.13 Financial Condition; No
Adverse Changes. The financial statements, together with
related schedules and notes, included in the Registration Statement and the
Prospectus, present fairly the consolidated financial position, results of
operations and changes in financial position of the Company and the Subsidiaries
on the basis stated in the Registration Statement and the Prospectus at the
respective dates or for the respective periods to which they apply; such
statements and related schedules and notes have been prepared in accordance with
generally accepted accounting principles consistently applied throughout the
periods involved, subject to normal year end adjustments, except as disclosed
therein; and the other financial and statistical information and data included
or incorporated by reference in the Registration Statement and the Prospectus
are accurately presented and prepared on a basis consistent with such financial
statements and the books and records of the Company and the
Subsidiaries. No other financial statements are required to be set
forth or to be incorporated by reference in the Registration Statement or the
Prospectus under the Securities Act.
(a) The
Company maintains a system of internal control over financial reporting (as such
term is defined in Rule 13a-15(f) under the Exchange Act) sufficient
to provide reasonable assurance that (i) transactions are executed in accordance
with management’s general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in accordance with
management’s general or specific authorization; (iv) the recorded accountability
for assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences; and (v) material
information relating to the Company and its Subsidiaries is made known to the
Company by its officers and employees. The Company’s internal control
over financial reporting was effective as of December 31, 2007, and the
Company is not aware of any material weaknesses therein. Since the
date of the latest audited financial statements included or incorporated by
reference in the Prospectus, there has been no change that has materially
adversely affected, or is reasonably likely to materially adversely affect, the
Company’s internal control over financial reporting.
S-11
(b) The
accountants who have audited the financial statements of the Company that are
incorporated by reference in the Registration Statement and the Prospectus are
independent registered public accountants as required by the Securities Act and
the rules and regulations of the Commission promulgated thereunder.
(c) The
Company maintains disclosure controls and procedures (as such term is defined in
Rule 13a-15(e) under the Exchange Act) that were effective as of June
30, 2008.
Section
3.14 Use of
Proceeds. The Company will use the net proceeds from the
offering of Common Shares in the manner specified in the Prospectus under “Use
of Proceeds.”
Section
3.15 Environmental
Matters. Other than as set forth in the Registration Statement
and the Prospectus, (a) the Company and its Subsidiaries are in compliance in
all material respects with all applicable state and federal environmental laws,
except for instances of noncompliance that, individually or in the aggregate,
would not have a Material Adverse Effect, and (b) no event or condition has
occurred that is reasonably likely to interfere in any material respect with the
compliance by the Company and its Subsidiaries with any environmental law or
that is reasonably likely to give rise to any liability under any environmental
law, in each case that, individually or in the aggregate, would have a Material
Adverse Effect.
Section
3.16 Insurance. Each
of the Company and its Subsidiaries is insured by insurers of recognized
financial responsibility against such losses and risks and in such amounts as
management of the Company believes to be prudent.
Section
3.17 Officer’s
Certificate. Any certificate signed by any officer of the
Company and delivered to Xxxxx Fargo or to counsel for Xxxxx Fargo in connection
with an Issuance shall be deemed a representation and warranty by the Company to
Xxxxx Fargo as to the matters covered thereby on the date of such
certificate.
Section
3.18 Finder’s
Fees. The Company has not incurred (directly or indirectly)
nor will it incur, directly or indirectly, any liability for any broker’s,
finder’s, financial advisor’s or other similar fee, charge or commission in
connection with this Agreement or the transactions contemplated
hereby.
ARTICLE
IV
COVENANTS
The
Company covenants and agrees during the term of this Agreement with Xxxxx Fargo
as follows:
Section
4.01 Registration Statement and
Prospectus. (i) To make no amendment or supplement to the Registration
Statement or the Prospectus after the date of delivery of an Issuance Notice and
prior to the related Settlement Date or Settlement Dates that is reasonably
disapproved by Xxxxx Fargo promptly after reasonable notice thereof; (ii) to
prepare, with respect to any Issuance Shares to be sold pursuant to this
Agreement, an Issuance Supplement with respect to such Common Shares in a form
previously approved by Xxxxx Fargo and to file such Issuance Supplement pursuant
to Rule 424(b) promulgated by the Commission under the Securities Act within the
time period required thereby and to deliver such number of copies of each
Issuance Supplement to each exchange or market on which such sales were effected
as may be required by the rules or regulations of such exchange or market, in
each case only if delivery and filing of such an Issuance Supplement is required
by applicable law or by the rules and regulations of the
Commission;
S-12
(iii) to
make no amendment or supplement to the Registration Statement or the Prospectus
(other than (x) an amendment or supplement relating solely to the issuance or
offering of securities other than the Common Shares and (y) by means of an
Annual Report on Form 10-K, a Quarterly Report on Form 10-Q or a Current Report
on Form 8-K (or any amendment to any thereof) filed with the Commission under
the Exchange Act and incorporated or deemed to be incorporated by reference in
the Registration Statement or the Prospectus) at any time prior to having
afforded Xxxxx Fargo a reasonable opportunity to review and comment thereon;
(iv) to file within the time periods required by the Exchange Act all reports
and any definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act for so long as the delivery of a prospectus is required under the
Securities Act or under the blue sky or securities laws of any jurisdiction in
connection with the offering or sale of the Common Shares, and during such same
period to advise Xxxxx Fargo, promptly after the Company receives notice
thereof, of the time when any amendment to the Registration Statement has been
filed or has become effective or any supplement to the Prospectus or any amended
Prospectus has been filed with the Commission, of the issuance by the Commission
of any stop order or of any order preventing or suspending the use of any
prospectus relating to the Common Shares, of the suspension of the qualification
of the Common Shares for offering or sale in any jurisdiction, of the initiation
or threatening of any proceeding for any such purpose, of any request by the
Commission for the amendment or supplement of the Registration Statement or the
Prospectus or for additional information, or the receipt of any comments from
the Commission with respect to the Registration Statement or the Prospectus
(including, without limitation, any Incorporated Documents); (v) in the
event of the issuance of any such stop order or of any such order preventing or
suspending the use of any such Prospectus or suspending any such qualification,
to use promptly its reasonable best efforts to obtain its withdrawal and (vi) to
promptly advise Xxxxx Fargo in writing of the issuance of any authorization of
any Utility Regulatory Agency relating to the authority of the Company to issue
and sell Common Stock in addition to the authorizations referred to in Section
3.08 of this Agreement or any expirations thereof.
Section
4.02 Blue
Sky. To use its reasonable best efforts to cause the Common
Shares to be listed on the Principal Market and promptly from time to time to
take such action as Xxxxx Fargo may reasonably request to cooperate with Xxxxx
Fargo in the qualification of the Common Shares for offering and sale under the
blue sky or securities laws of such jurisdictions within the United States of
America and its territories as Xxxxx Fargo may reasonably request and to use its
reasonable best efforts to comply with such laws so as to permit the continuance
of sales and dealings therein for as long as may be necessary to complete the
distribution or sale of the Common Shares; provided, however, that in
connection therewith the Company shall not be required to qualify as a foreign
corporation or as a dealer in securities, to file a general consent to service
of process or to subject itself to taxation in respect of doing business in any
jurisdiction.
Section
4.03 Copies of Registration
Statement and Prospectus. To furnish Xxxxx Fargo with copies
(which may be electronic copies) of the Registration Statement and each
amendment thereto, and with copies of the Prospectus and each amendment or
supplement thereto in the form in which it is filed with the Commission pursuant
to the Securities Act or Rule 424(b) promulgated by the Commission under the
Securities Act, both in such quantities as Xxxxx Fargo may reasonably request
from time to time; and, if the delivery of a prospectus is required under the
Securities Act or under the blue sky or securities laws of any jurisdiction at
any time on or prior to the applicable Settlement Date for any Selling Period in
connection with the offering or sale of the Common Shares and if at such time
any event has occurred as a result of which the Prospectus 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
S-13
circumstances
under which they were made when such Prospectus is delivered, not misleading,
or, if for any other reason it is necessary during such same period to amend or
supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the
Securities Act or the Exchange Act, to notify Xxxxx Fargo and request Xxxxx
Fargo to suspend offers to sell Common Shares (and, if so notified, Xxxxx Fargo
shall cease such offers as soon as practicable); and if the Company decides to
amend or supplement the Registration Statement or the Prospectus as then amended
or supplemented, to advise Xxxxx Fargo promptly by telephone (with confirmation
in writing) and to prepare and cause to be filed promptly with the Commission an
amendment or supplement to the Registration Statement or the Prospectus as then
amended or supplemented that will correct such statement or omission or effect
such compliance; provided, however, that if
during such same period Xxxxx Fargo is required to deliver a prospectus in
respect of transactions in the Common Shares, the Company shall promptly prepare
and file with the Commission such an amendment or supplement.
Section
4.04 Rule
158. To make generally available to its holders of the Common
Shares as soon as practicable, but in any event not later than eighteen months
after the effective date of the Registration Statement (as defined in Rule
158(c) promulgated by the Commission under the Securities Act), an earnings
statement of the Company and the Subsidiaries (which need not be audited)
complying with Section 11(a) of the Securities Act and the rules and regulations
of the Commission promulgated thereunder (including the option of the Company to
file periodic reports in order to make generally available such earnings
statement, to the extent that it is required to file such reports under Section
13 or Section 15(d) of the Exchange Act, pursuant to Rule 158 promulgated by the
Commission under the Securities Act).
Section
4.05 Information. Except
where such reports, communications, financial statements or other information is
available on the Commission’s XXXXX system, to furnish to Xxxxx Fargo (in paper
or electronic format) copies of all publicly available reports or other
communications (financial or other) furnished generally to stockholders and
filed with the Commission pursuant to the Exchange Act, and deliver to Xxxxx
Fargo (in paper or electronic format) (i) promptly after they are available,
copies of any publicly available reports and financial statements furnished to
or filed with the Commission or any national securities exchange on which any
class of securities of the Company is listed; and (ii) such additional publicly
available information concerning the business and financial condition of the
Company as Xxxxx Fargo may from time to time reasonably request (such financial
statements to be on a consolidated basis to the extent the accounts of the
Company and its Subsidiaries are consolidated in reports furnished to its
stockholders generally or to the Commission).
Section
4.06 Representations and
Warranties. That each delivery of an Issuance Notice and each
delivery of Common Shares on a Settlement Date shall be deemed to be (i) an
affirmation to Xxxxx Fargo that the representations and warranties of the
Company contained in or made pursuant to this Agreement are true and correct in
all material respects as of the date of such Issuance Notice or of such
Settlement Date, as the case may be, as though made at and as of each such date,
except as may be disclosed in the Prospectus (including any documents
incorporated by reference therein and any supplements thereto) or otherwise in
writing by the Company to Xxxxx Fargo on or before such date of delivery or
Settlement Date, as the case may be, and (ii) an undertaking that the Company
will advise Xxxxx Fargo if any of such representations and warranties will not
be true and correct in all material respects as of the Settlement Date for the
Common Shares relating to such Issuance Notice, as though made at and as of each
such date (except that such representations and warranties shall be deemed to
relate to the Registration Statement and the Prospectus as amended and
supplemented relating to such Common Shares).
S-14
Section
4.07 Opinions of
Counsel. That each time the Registration Statement or the
Prospectus is amended or supplemented (other than by an Issuance Supplement or a
Current Report on Form 8-K, unless reasonably requested by Xxxxx Fargo within 30
days of the filing thereof with the Commission), including by means of an Annual
Report on Form 10-K or a Quarterly Report on Form 10-Q filed with the Commission
under the Exchange Act and incorporated or deemed to be incorporated by
reference into the Prospectus (each such amendment or supplement, an “Opinion
Trigger Event”), the Company shall at any time selected by the Company on or
following the date of such Opinion Trigger Event (except that during a Selling
Period or any other period in which a prospectus relating to the Issuance Shares
is required to be delivered by Xxxxx Fargo under the Securities Act, such time
shall be no later than one Trading Day after each Opinion Trigger Event that
occurs during such period; and provided that in any case delivery shall be a
condition to the delivery of an Issuance Notice) furnish or cause to be
furnished forthwith to Xxxxx Fargo a written opinion of Xxxxxx Xxxx Xxxxx
Raysman & Xxxxxxx LLP, special counsel for the Company, and Xxxx X.
Xxxxxxxx, Esq., General Counsel and Secretary of the Company, in each case dated
the date of delivery and in form reasonably satisfactory to Xxxxx Fargo, (i) if
such counsel has previously furnished an opinion to the effect set forth in
Exhibit B-1 or B-2 hereto (as applicable), to the effect that Xxxxx Fargo may
rely on such previously furnished opinion of such counsel to the same extent as
though it were dated the date of such letter authorizing reliance (except that
the statements in such last opinion shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to such
date) or (ii) if such counsel has not previously furnished an opinion to the
effect set forth in Exhibit B-1 or B-2 hereto (as applicable), of the same
tenor as such an opinion of such counsel but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented to such
date.
Section
4.08 Comfort
Letters. That each time the Registration Statement or the
Prospectus is amended or supplemented, including by means of an Annual Report on
Form 10-K, a Quarterly Report on Form 10-Q or a Current Report on Form 8-K filed
with the Commission under the Exchange Act and incorporated or deemed to be
incorporated by reference into the Prospectus, in any case to set forth
financial information included in or derived from the Company’s financial
statements or accounting records (each such amendment or supplement, a “Comfort
Letter Trigger Event”), the Company shall at any time selected by the Company on
or following the date of such Comfort Letter Trigger Event (except that during a
Selling Period or any other period in which a prospectus relating to the
Issuance Shares is required to be delivered by Xxxxx Fargo under the Securities
Act, such time shall be no later than one Trading Day after each Comfort Letter
Trigger Event that occurs during such period; and provided that in any case
delivery shall be a condition to the delivery of an Issuance Notice) cause the
independent registered public accountants who have audited the financial
statements of the Company included or incorporated by reference in the
Registration Statement forthwith to furnish to Xxxxx Fargo a letter, dated the
date of delivery, in form reasonably satisfactory to Xxxxx Fargo, of the same
tenor as the letter referred to in Section 5.01(g) hereof but modified to relate
to the Registration Statement and the Prospectus as amended or supplemented to
the date of such letter, with such changes as may be necessary to reflect
changes in the financial statements and other information derived from the
accounting records of the Company, to the extent such financial statements and
other information are available as of a date not more than five business days
prior to the date of such letter; provided, however, that, with
respect to any financial information or other matters, such letter may reconfirm
as true and correct at such date as though made at and as of such date, rather
than repeat, statements with respect to such financial information or other
matters made in the letter referred to in Section 5.01(g) hereof that was last
furnished to Xxxxx Fargo; provided further, that the Company shall not be
required to furnish such a letter with respect to the financial statements of
any business acquired that are included in a Current Report on Form
8-K.
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Section
4.09 Officer’s
Certificate. That each time the Registration Statement or the
Prospectus is amended or supplemented (other than by an Issuance Supplement or a
Current Report on Form 8-K, unless reasonably requested by Xxxxx Fargo within 30
days of the filing thereof with the Commission), including by means of an Annual
Report on Form 10-K or a Quarterly Report on Form 10-Q filed with the Commission
under the Exchange Act and incorporated or deemed to be incorporated by
reference into the Prospectus (each such amendment or supplement, an “Officer’s
Certificate Trigger Event”), the Company shall at any time selected by the
Company on or following the date of such Officer’s Certificate Trigger Event
(except that during a Selling Period or any other period in which a prospectus
relating to the Issuance Shares is required to be delivered by Xxxxx Fargo under
the Securities Act, such time shall be no later than one Trading Day after each
Officer’s Certificate Trigger Event that occurs during such period; and provided
that in any case delivery shall be a condition to the delivery of an Issuance
Notice) furnish forthwith to Xxxxx Fargo a certificate, dated the date of
delivery, in such form and executed by such officers of the Company as is
reasonably satisfactory to Xxxxx Fargo, of the same tenor as the certificate
referred to in Section 2.02(b)(w) but modified to relate to the Registration
Statement and the Prospectus as amended and supplemented to such
date.
Section
4.10 Stand Off
Agreement. Without the written consent of Xxxxx Fargo, the
Company will not, directly or indirectly, offer to sell, sell, contract to sell,
grant any option to sell or otherwise dispose of any shares of Common Stock or
securities convertible into or exchangeable for Common Stock (other than Common
Shares hereunder), warrants or any rights to purchase or acquire, Common Stock
(other than Common Shares hereunder) during the period beginning on the first
(1st) Trading Day immediately prior to the date on which any Issuance Notice is
delivered to Xxxxx Fargo hereunder and ending on the first (1st) Trading Day
immediately following the last Settlement Date with respect to Common Shares
sold pursuant to such Issuance Notice; provided, however, that such
restriction will not be required in connection with the Company’s issuance or
sale of (i) Common Stock, options to purchase shares of Common Stock or Common
Stock issuable upon the exercise of options or other rights pursuant to any
employee or director stock option or benefit plan, stock purchase or ownership
plan (whether currently existing or adopted hereafter) or dividend reinvestment
plan (but not shares subject to a waiver to exceed plan limits in its stock
purchase plan) of the Company, (ii) Common Stock issuable upon conversion of
securities or the exercise of warrants, options or other rights disclosed in the
Company's Commission filings and (iii) Common Stock issuable as consideration in
connection with acquisitions of business, assets or securities of other
Persons.
Section
4.11 Market
Activities. The Company will not, directly or indirectly, (i)
take any action designed to cause or result in, or that constitutes or might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Common Shares or (ii) sell, bid for or purchase the Common Shares, or pay anyone
any compensation for soliciting purchases of the Common Shares other than Xxxxx
Fargo.
Section
4.12 Subsequent Delivery of
Utility Regulatory Agency Authorizations. Each time that the
Company gives to Xxxxx Fargo the written notification required by Section
4.01(vi) (an “Agency Trigger Event”), the Company shall concurrently deliver to
Xxxxx Fargo and counsel to Xxxxx Fargo (i) a copy of each such authorization and
(ii) at any time selected by the Company on or following the date of such Agency
Trigger Event (except that during a Selling Period, such time shall be
concurrently with each Agency Trigger Event that occurs during such period; and
provided that in any case delivery shall be a condition to the delivery of an
Issuance Notice), written opinions of Xxxxxx Xxxx Xxxxx Raysman & Xxxxxxx
LLP, special counsel to the Company and Xxxx X. Xxxxxxxx, Esq., General Counsel
and Secretary of the Company, to the effect set forth in paragraph 9 of Exhibit
B-1 and paragraph 8 of Exhibit B-2 of this Agreement, respectively modified to
reflect such authorizations.
S-16
ARTICLE
V
CONDITIONS
TO DELIVERY OF ISSUANCE
NOTICES
AND TO SETTLEMENT
Section
5.01 Conditions Precedent to the
Right of the Company to Deliver an Issuance Notice and the Obligation of Xxxxx
Fargo to Sell Common Shares. The right of the Company to
deliver an Issuance Notice hereunder is subject to the satisfaction, on the date
of delivery of such Issuance Notice, and the obligation of Xxxxx Fargo to sell
Common Shares during the applicable Selling Period is subject to the
satisfaction, on the applicable date, of each of the following
conditions:
(a) Effective Registration
Statement and Authorizations. The Registration Statement shall
remain effective, and sales of all of the Common Shares (including all of the
Issuance Shares issued with respect to all prior Issuances and all of the
Issuance Shares expected to be issued in connection with the Issuance specified
by the current Issuance Notice) may be made by Xxxxx Fargo thereunder; and (i)
no stop order suspending the effectiveness of the Registration Statement shall
have been issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; (ii) no other suspension of the use or withdrawal
of the effectiveness of the Registration Statement or Prospectus shall exist;
(iii) all requests for additional information on the part of the Commission
shall have been complied with to the reasonable satisfaction of Xxxxx Fargo; and
(iv) no event specified in Section 4.03 hereof shall have occurred and be
continuing without the Company amending or supplementing the Registration
Statement or the Prospectus as provided in Section 4.03. The authorizations of
the Utility Regulatory Agencies referred to in Section 3.08 of this Agreement
are in full force and effect, and to the knowledge of the Company, are not the
subject of any pending or threatened application for rehearing or petition for
modification and are sufficient to authorize the issuance and sale of the Common
Shares.
(b) Accuracy of the Company’s
Representations and Warranties. The representations and
warranties of the Company shall be true and correct in all material respects as
of each Representation Date as though made at such time.
(c) Performance by the
Company. The Company shall have performed, satisfied and
complied with in all material respects all covenants, agreements and conditions
required by this Agreement to be performed, satisfied or complied with by the
Company at or prior to such date.
(d) No
Injunction. No statute, rule, regulation, executive order,
decree, ruling or injunction shall have been enacted, entered, promulgated or
endorsed by any court or governmental authority of competent jurisdiction or any
self-regulatory organization having authority over the matters contemplated
hereby that prohibits or directly and materially adversely affects any of the
transactions contemplated by this Agreement, and no proceeding shall have been
commenced that may have the effect of prohibiting or materially adversely
affecting any of the transactions contemplated by this Agreement.
(e) Material Adverse
Changes. Since the date of this Agreement, no event that had
or is reasonably likely to have a Material Adverse Effect shall have occurred
that has not been disclosed in the Registration Statement or the Prospectus
(including the documents incorporated by reference therein and any supplements
thereto).
S-17
(f) No Suspension of Trading In
or Delisting of Common Stock; Other Events. The trading of the
Common Stock (including without limitation the Issuance Shares) shall not have
been suspended by the Commission, the Principal Market or the National
Association of Securities Dealers, Inc. since the immediately preceding
Settlement Date or, if there has been no Settlement Date, the Closing Date, and
the Common Shares (including without limitation the Issuance Shares) shall have
been approved for listing or quotation on (subject only to notice of issuance)
and shall not have been delisted from the Principal Market. There
shall not have occurred (and be continuing in the case of occurrences under
clause (i) and (ii) below) any of the following: (i) if trading generally on the
American Stock Exchange, the New York Stock Exchange or The Nasdaq Stock Market
has been suspended or materially limited, or minimum and maximum prices for
trading have been fixed, or maximum ranges for prices have been required, by any
of said exchanges or by such system or by order of the Commission, the National
Association of Securities Dealers, Inc. or any other governmental authority or a
material disruption has occurred in commercial banking or securities settlement
or clearance services in the United States; (ii) a general moratorium on
commercial banking activities in New York declared by either federal or New York
state authorities; or (iii) any material adverse change in the financial markets
in the United States or in the international financial markets, any outbreak or
escalation of hostilities or other calamity or crisis involving the United
States or the declaration by the United States of a national emergency or war or
any substantial change in national or international political, financial or
economic conditions, if the effect of any such event specified in this clause
(iii) in the reasonable judgment of Xxxxx Fargo makes it impractical or
inadvisable to proceed with the sale of Common Shares on behalf of the
Company.
(g) Comfort
Letter. The independent registered public accountants who have
audited the financial statements of the Company included or incorporated by
reference in the Registration Statement shall have furnished to Xxxxx Fargo the
letters required to be delivered by Sections 2.02(b)(y) and 4.08 on or before
the date on which satisfaction of this condition is determined.
(h) No
Defaults. Immediately after consummation of the proposed sale
of the Issuance Shares by Xxxxx Fargo, none of the Company nor any of the
Material Subsidiaries shall be in default under (whether upon the passage of
time, the giving of notice or both) its organizational or other governing
documents, or any provision of any security issued by the Company or any of its
Material Subsidiaries, or of any agreement, instrument or other undertaking to
which the Company or any of its Material Subsidiaries is a party or by which it
or any of its property or assets is bound, or the applicable provisions of any
law, statute, rule, regulation, order, writ, injunction, judgment or decree of
any court or governmental authority to or by which the Company, any of its
Material Subsidiaries or any of their property or assets is bound, in each case
which default, either individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.
(i) Trading
Cushion. The Selling Period for any previous Issuance Notice
shall have expired.
(j) Maximum Issuance
Amount. In no event may the Company issue an Issuance Notice
to sell an Issuance Amount to the extent that (I) the sum of (x) the requested
Issuance Amount, plus (y) the aggregate number of all Common Shares issued under
all previous Issuances effected pursuant to this Agreement, would exceed (A) the
Maximum Program Amount or (B) the amount as shall then be authorized by the
Utility Regulatory Agencies or (II) the requested Issuance Amount exceeds the
product of (x) 75,000 times (y) the number of Trading Days in the Selling
Period.
(k) Prospectus Supplement and
Issuance Supplement. (i) A supplement to the
prospectus included in the Registration Statement (the “Prospectus Supplement”),
in form and substance to be agreed upon by the parties, setting forth
information regarding this Agreement including, without limitation, the Maximum
Program Amount, shall have been filed with the Commission pursuant to Rule
424(b) promulgated by the Commission under the Securities Act within the time
period required thereby and sufficient copies thereof delivered to Xxxxx Fargo
on or prior to the Issuance Date.
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(ii) If
required by Section 4.01(ii), an Issuance Supplement, in form and substance to
be agreed upon by the parties, shall have been filed with the Commission
pursuant to Rule 424(b) promulgated by the Commission under the Securities Act
within the time period required thereby and sufficient copies thereof delivered
to Xxxxx Fargo on or prior to the Issuance Date.
(l) Counsel Letter. The
counsel specified in Sections 2.02(b)(x) and 4.07, or other counsel selected by
the Company and reasonably satisfactory to Xxxxx Fargo, shall have furnished to
Xxxxx Fargo their written opinions, dated on or before the date of the first
Issuance Notice and each applicable date referred to in Section 4.07 hereof that
is on or prior to such Issuance Date or Settlement Date, as the case may be, to
the effect required by Section 4.07.
(m) Officer’s
Certificate. The Company shall have furnished or caused to be
furnished to Xxxxx Fargo an officer’s certificate executed by one of the
Authorized Officers specified in Section 2.01(c), dated on or before the date of
the first Issuance Notice and each applicable date referred to in Section 4.09
hereof that is on or prior to such Issuance Date or Settlement Date, as the case
may be, as to the matters specified in Section 2.02(b)(w).
(n) Other
Documents. On the Closing Date and prior to each Issuance Date
and Settlement Date, Xxxxx Fargo and its counsel shall have been furnished with
such documents as they may reasonably require in order to evidence the accuracy
and completeness of any of the representations or warranties, or the fulfillment
of the conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Common Shares as herein
contemplated shall be satisfactory in form and substance to Xxxxx Fargo and its
counsel.
Section
5.02 Documents Required to be
Delivered on each Issuance Date. Xxxxx Fargo’s obligation to
sell Common Shares pursuant to an Issuance hereunder shall additionally be
conditioned upon the delivery to Xxxxx Fargo on or before the Issuance Date of a
certificate in form and substance reasonably satisfactory to Xxxxx Fargo,
executed by the Chief Executive Officer or the Chief Financial Officer of the
Company, to the effect that all conditions to the delivery of such Issuance
Notice shall have been satisfied as at the date of such certificate (which
certificate shall not be required if the foregoing representations shall be set
forth in the Issuance Notice or in an officer’s certificate delivered pursuant
to Section 4.09 dated the Issuance Date).
Section
5.03 Suspension of
Sales. The Company or Xxxxx Fargo may, upon notice to the
other party in writing or by telephone (confirmed immediately by verifiable
facsimile transmission), suspend any sale of Issuance Shares, and the Selling
Period shall immediately terminate; provided, however, that such
suspension and termination shall not affect or impair either party’s obligations
with respect to any Issuance Shares sold hereunder prior to the receipt of such
notice, and, provided, further, that any
suspension of sales based upon the Daily Floor Price mechanism described in
Section 2.03(c) of this Agreement shall not result in the immediate termination
of the Selling Period. The Company agrees that no such notice shall
be effective against Xxxxx Fargo unless it is made to one of the individuals
named on Schedule 1 hereto, as such Schedule may be amended from time to
time. Xxxxx Fargo agrees that no such notice shall be effective
against the Company unless it is made to one of the individuals named on
Schedule 1 annexed hereto, as such Schedule may be amended from time to
time.
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ARTICLE
VI
INDEMNIFICATION
AND CONTRIBUTION
Section
6.01 Indemnification by the
Company. The Company agrees to indemnify and hold harmless
Xxxxx Fargo, its officers, directors, employees and agents, and each Person, if
any, who controls Xxxxx Fargo within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, together with each such Person’s
respective officers, directors, employees and agents (collectively, the
“Controlling Persons”), from and against any and all losses, claims, damages or
liabilities, and any action or proceeding in respect thereof, to which Xxxxx
Fargo, its officers, directors, employees and agents, and any such Controlling
Person may become subject under the Securities Act, the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of, or are based upon, (a) any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, the Prospectus or any other prospectus relating to the
Common Shares, or any amendment or supplement thereto, or any preliminary
prospectus, or arise out of, or are based upon, any omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein (in the case of the Prospectus or any amendment or
supplement thereto or any preliminary prospectus, in light of the circumstances
in which they were made) not misleading, except insofar as the same are made in
reliance upon and in conformity with information related to Xxxxx Fargo or its
plan of distribution furnished in writing to the Company by Xxxxx Fargo
expressly for use therein or (b) any breach or violation by the Company of
Section 2.04, and the Company shall reimburse Xxxxx Fargo, its officers,
directors, employees and agents, and each Controlling Person for any
reasonable legal and other expenses incurred thereby in investigating or
defending or preparing to defend against any such losses, claims, damages or
liabilities, or actions or proceedings in respect thereof, as such expenses are
incurred.
Section
6.02 Indemnification by Xxxxx
Fargo. Xxxxx Fargo agrees to indemnify and hold harmless the
Company, its officers, directors, employees and agents and each
Person, if any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, together with each such
Person’s respective officers, directors, employees and agents, from and against
any losses, claims, damages or liabilities, and any action or proceeding in
respect thereof, to which the Company, its officers, directors, employees or
agents, any such controlling Person and any officer, director, employee or agent
of such controlling Person may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as losses, claims, damages or liabilities (or
action or proceeding in respect thereof) arise out of, or are based upon, (a)
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement, the Prospectus or any other prospectus relating to
the Common Shares, or any amendment or supplement thereto, or any preliminary
prospectus, or arise out of, or are based upon, any omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein (in the case of the Prospectus or any other
prospectus relating to the Common Shares, or any amendment or supplement thereto
or any preliminary prospectus, in light of the circumstances in which they were
made) not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made therein in reliance upon and in conformity with written
information related to Xxxxx Fargo or its plan of distribution furnished to the
Company by Xxxxx Fargo expressly for use therein and Xxxxx Fargo shall reimburse
the Company, its officers, directors, employees and agents, and each Company
Controlling Person for any reasonable legal and other expenses incurred thereby
in investigating or defending or preparing to defend against any such losses,
claims, damages or liabilities, or actions or proceedings in respect thereof, as
such expenses are incurred, or (b) any breach or violation by Xxxxx Fargo of
Section 2.04.
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Section
6.03 Conduct of Indemnification
Proceedings. As promptly as reasonably practicable after
receipt by any Person (an “Indemnified Party”) of notice of any claim or the
commencement of any action in respect of which indemnity may be sought pursuant
to Section 6.01 or 6.02, the Indemnified Party shall, if a claim in respect
thereof is to be made against the Person against whom such indemnity may be
sought (an “Indemnifying Party”), notify the Indemnifying Party in writing of
the claim or the commencement of such action. In the event an
Indemnified Party shall fail to give such notice as provided in this Section
6.03 and the Indemnifying Party to whom notice was not given was unaware of the
proceeding to which such notice would have related and was materially prejudiced
by the failure to give such notice, the indemnification provided for in Sections
6.01 or 6.02 shall be reduced to the extent of any actual prejudice resulting
from such failure to so notify the Indemnifying Party; provided, that the
failure to notify the Indemnifying Party shall not relieve it from any liability
that it may have to an Indemnified Party otherwise than under Section 6.01 or
6.02. If any such claim or action shall be brought against an
Indemnified Party, the Indemnifying Party shall be entitled to participate
therein, and, to the extent that it wishes, jointly with any other similarly
notified Indemnifying Party, to assume the defense thereof with counsel
reasonably satisfactory to the Indemnified Party. After notice from
the Indemnifying Party to the Indemnified Party of its election to assume the
defense of such claim or action, the Indemnifying Party shall not be liable to
the Indemnified Party for any legal or other expenses subsequently incurred by
the Indemnified Party in connection with the defense thereof other than
reasonable costs of investigation; provided that the Indemnified Party shall
have the right to employ separate counsel to represent the Indemnified Party,
but the fees and expenses of such counsel shall be for the account of such
Indemnified Party unless (i) the Indemnifying Party and the Indemnified Party
shall have mutually agreed to the retention of such counsel or (ii) such
Indemnified Party reasonably concludes that representation of both parties by
the same counsel would be inappropriate due to actual or potential conflicts of
interest with the Company, it being understood, however, that the Indemnifying
Party shall not, in connection with any one such claim or action or separate but
substantially similar or related claims or actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
fees and expenses of more than one separate firm of attorneys (together with
appropriate local counsel) at any time for all Indemnified Parties or for fees
and expenses that are not reasonable. No Indemnifying Party shall,
without the prior written consent of the Indemnified Party, effect any
settlement of any claim or pending or threatened proceeding in respect of which
the Indemnified Party is or could have been a party and indemnification could
have been sought hereunder by such Indemnified Party unless such settlement
includes an unconditional release of each such Indemnified Party from all
losses, claims, damages or liabilities arising out of such claim or proceeding
and such settlement does not admit or constitute an admission of fault, guilt,
failure to act or culpability on the part of any such Indemnified
Party. Whether or not the defense of any claim or action is assumed
by an Indemnifying Party, such Indemnifying Party will not be subject to any
liability for any settlement made without its prior written consent, which
consent will not be unreasonably withheld.
Section
6.04 Contribution. If
for any reason the indemnification provided for in this Article VI is
unavailable to the Indemnified Parties in respect of any losses, claims, damages
or liabilities referred to herein, then each Indemnifying Party, in lieu of
indemnifying such Indemnified Party, shall contribute to the amount paid or
payable by such Indemnified Party as a result of such losses, claims, damages or
liabilities as between the Company, on the one hand, and Xxxxx Fargo, on the
other hand, in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and Xxxxx Fargo on the other
hand from the offering of the Common Shares to which such losses, claims,
damages or liabilities relate. If, however, the allocation provided
by the immediately preceding sentence is not permitted by applicable law, then
each Indemnifying Party shall contribute to such amount paid or payable by such
Indemnifying
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Party in
such proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of the Company and of Xxxxx Fargo in connection with
such statements or omissions, as well as any other relevant equitable
considerations. The relative benefits received by the Company, on the
one hand, and by Xxxxx Fargo, on the other, shall be deemed to be in the same
proportion as the total net proceeds from the sale of Common Shares (before
deducting expenses) received by the Company bear to the total commissions
received by Xxxxx Fargo in respect thereof. The relative fault of the
Company, on the one hand, and of Xxxxx Fargo, on the other hand, shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on one hand or by
Xxxxx Fargo on the other hand, and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The
Company and Xxxxx Fargo agree that it would not be just and equitable if
contribution pursuant to this Section 6.04 were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Party as a
result of the losses, claims, damages or liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any reasonable legal or other expenses reasonably
incurred by such Indemnified Party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this
Section 6.04, Xxxxx Fargo shall in no event be required to contribute any amount
in excess of the commissions received by it under this Agreement. No
Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation. For purposes
of this Section 6.04 each officer, director, employee and agent of Xxxxx Fargo,
and each Controlling Person, shall have the same rights to contribution as Xxxxx
Fargo, and each director of the Company, each officer of the Company who signed
the Registration Statement, and each Person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act shall have the same rights to contribution as the
Company. The obligations of the Company and Xxxxx Fargo under this
Article VI shall be in addition to any liability that the Company and Xxxxx
Fargo may otherwise have.
ARTICLE
VII
TERMINATION
Section
7.01 Term. Subject
to the provisions of this Article VII, the term of this Agreement shall run
until the end of the Commitment Period.
Section
7.02 Termination by Xxxxx
Fargo. i) Xxxxx Fargo may terminate the right of
the Company to effect any Issuances under this Agreement upon one (1) Trading
Day’s notice if any of the following events shall occur:
(i) The
Company or any Material Subsidiary shall make an assignment for the benefit of
creditors, or apply for or consent to the appointment of a receiver or trustee
for it or for all or substantially all of its property or business; or such a
receiver or trustee shall otherwise be appointed;
(ii) Bankruptcy,
insolvency, reorganization or liquidation proceedings or other proceedings for
relief under any bankruptcy law or any law for the relief of debtors shall be
instituted by or against the Company or any of its Material
Subsidiaries;
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(iii) The
Company shall fail to maintain the listing of the Common Stock on the Principal
Market; or
(iv) Since
the Effective Date, there shall have occurred any event, development or state of
circumstances or facts that has had or would reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.
(b) Xxxxx
Fargo shall have the right, by giving ten (10) days’ notice as hereinafter
specified, to terminate this Agreement in its sole discretion at any
time.
Section
7.03 Termination by the
Company. The Company shall have the right, by giving ten (10)
days’ notice as hereinafter specified, to terminate this Agreement in its sole
discretion at any time. After delivery of such notice, the Company
shall no longer have any right to deliver any Issuance Notices
hereunder.
Section
7.04 Liability; Provisions that
Survive Termination. If this Agreement is terminated pursuant
to this Article VII, such termination shall be without liability of any party to
any other party except as provided in Section 9.02 and for the Company’s
obligations in respect of all prior Issuance Notices, and provided further that
in any case the provisions of Article VI, Article VIII and Article IX shall
survive termination of this Agreement without limitation.
ARTICLE
VIII
REPRESENTATIONS
AND WARRANTIES TO SURVIVE DELIVERY
All
representations and warranties of the Company herein or in certificates
delivered pursuant hereto shall remain operative and in full force and effect
regardless of (i) any investigation made by or on behalf of Xxxxx Fargo and its
officers, directors, employees and agents and any Controlling Persons,
(ii) delivery and acceptance of the Common Shares and payment therefor or
(iii) any termination of this Agreement.
ARTICLE
IX
MISCELLANEOUS
Section
9.01 Press Releases and
Disclosure. The Company may issue a press release describing
the material terms of the transactions contemplated hereby as soon as
practicable following the Closing Date, and may file with the Commission a
Current Report on Form 8-K describing the material terms of the transactions
contemplated hereby, and the Company shall consult with Xxxxx Fargo prior to
making such disclosures, and the parties shall use all reasonable efforts,
acting in good faith, to agree upon a text for such disclosures that is
reasonably satisfactory to all parties. No party hereto shall issue
thereafter any press release or like public statement (including, without
limitation, any disclosure required in reports filed with the Commission
pursuant to the Exchange Act) related to this Agreement or any of the
transactions contemplated hereby not substantially similar to previously
approved disclosure without the prior written approval of the other party
hereto, except as may be necessary or appropriate in the opinion of the party
seeking to make disclosure to comply with the requirements of applicable law or
stock exchange rules. If any such press release or like public
statement is so required, the party making such disclosure shall consult with
the other party prior to making such disclosure, and the parties shall use all
reasonable efforts, acting in good faith, to agree upon a text for such
disclosure that is reasonably satisfactory to all parties.
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Section
9.02 Expenses. The
Company covenants and agrees with Xxxxx Fargo that the Company shall pay or
cause to be paid the following: (i) the fees, disbursements and
expenses of the Company’s counsel and accountants in connection with the
preparation, printing and filing of the Registration Statement, the Prospectus
and any Issuance Supplements and all other amendments and supplements thereto
and the mailing and delivering of copies thereof to Xxxxx Fargo and the
Principal Exchange; (ii) Xxxxx Fargo’s reasonable documented out-of-pocket
expenses, up to a maximum of $75,000 in the aggregate, including the reasonable
fees, disbursements and expenses of counsel for Xxxxx Fargo (including in
connection with the qualification of the Common Shares for offering and sale
under state securities laws as provided in Section 4.02 hereof and in connection
with preparing any blue sky survey) in connection with this Agreement and the
Registration Statement and ongoing services in connection with the transactions
contemplated hereunder; (iii) the cost (other than those expenses described in
clause (ii) above) of printing, preparing or reproducing this Agreement and any
other documents in connection with the offering, purchase, sale and delivery of
the Common Shares; (iv) all filing fees and expenses (other than those expenses
described in clause (ii) above) in connection with the qualification of the
Common Shares for offering and sale under state securities laws as provided in
Section 4.02 hereof; (v) the cost of preparing the Common Shares; (vi) the fees
and expenses of any transfer agent of the Company; (vii) the cost of providing
any CUSIP or other identification numbers for the Common Shares; (viii) the fees
and expenses incurred in connection with the listing or qualification of the
Common Shares on the Principal Market and any filing fees incident to any
required review by the National Association of Securities Dealers, Inc. of the
terms of the sale of the Common Shares in connection with this Agreement and the
Registration Statement (including the reasonable fees, disbursements and
expenses of counsel for Xxxxx Fargo), and (ix) all other costs and expenses
incident to the performance of the Company’s obligations hereunder that are not
otherwise specifically provided for in this Section. The Company will
not bear any costs or expenses of Xxxxx Fargo with respect to Xxxxx Fargo’s
obligation to deliver shares of Common Stock to any Person.
Section
9.03 Notices. All
notices, demands, requests, consents, approvals or other communications required
or permitted to be given hereunder or that are given with respect to this
Agreement shall be in writing and shall be personally served or deposited in the
mail, registered or certified, return receipt requested, postage prepaid or
delivered by reputable air courier service with charges prepaid, or transmitted
by hand delivery, telegram, telex, e-mail (other than to the Company) or
facsimile, addressed as set forth below, or to such other address as such party
shall have specified most recently by written notice: (i) if to the Company
to: Xxxxxx X. Xxxxx, Executive Vice President, Treasurer and Chief
Financial Officer, MDU Resources Group, Inc., 0000 Xxxx Xxxxxxx Xxxxxx, X.X. Xxx
0000, Xxxxxxxx, Xxxxx Xxxxxx, 00000-0000, Phone: 000.000.0000 and Fax:
000.000.0000, with a copy (which shall not constitute notice)
to: Xxxxxx X. Xxxxxxxxx III, Xxxxxx Xxxx Xxxxx Raysman & Xxxxxxx
LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Phone: 000.000.0000, Fax:
000.000.0000 and e-mail: xxxxxxxxxx@xxxxxx.xxx; and (ii) if to Xxxxx Fargo
to: (a) X. Xxxx Genatowski, 000 Xxxxx Xxxxxx, Xxx Xxxx Xxxx, Xxx
Xxxx, 00000, Phone: 000.000.0000, Fax: 000.000.0000, and e-mail: xxxx.xxxxxxxxxx@xxxxxxxxxx.xxx,
(b) Xxxxxx Xxxxxx, Phone: 000-000-0000, Fax: 000-000-0000 and e-mail: Xxxxxx.X.Xxxxxx@xxxxxxxxxx.xxx
and (c) Xxxx Xxxxxxx, Phone: 000-000-0000, Fax: 000-000-0000
and e-mail: Xxxx.Xxxxxxx@xxxxxxxxxx.xxx,
with a copy (which shall not constitute notice) to: Xxxxxx X.
Xxxxxxx, Xx., Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, 0000 Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Phone: 000.000.0000, Fax: 000.000.0000 and e-mail:
xxx.xxxxxxx@xxxxxxxxxxxx.xxx. Except as set forth in Section 5.03,
notice shall be deemed given on the date of service or transmission if
personally served or transmitted by telegram, telex, e-mail or confirmed
facsimile. Notice otherwise sent as provided herein shall be deemed
given on the third business day following the date mailed or on the next
business day following delivery of such notice to a reputable air courier
service for next day delivery.
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Section
9.04 Entire
Agreement. This Agreement constitutes the entire agreement of
the parties with respect to the subject matter hereof and supersedes all prior
and contemporaneous agreements, representations, understandings, negotiations
and discussions between the parties, whether oral or written, with respect to
the subject matter hereof.
Section
9.05 Amendment and
Waiver. This Agreement may not be amended, modified,
supplemented, restated or waived except by a writing executed by the party
against which such amendment, modification, supplement, restatement or waiver is
sought to be enforced. Waivers may be made in advance or after the
right waived has arisen or the breach or default waived has
occurred. Any waiver may be conditional. No waiver of any
breach of any agreement or provision herein contained shall be deemed a waiver
of any preceding or succeeding breach thereof nor of any other agreement or
provision herein contained. No waiver or extension of time for
performance of any obligations or acts shall be deemed a waiver or extension of
the time for performance of any other obligations or acts.
Section
9.06 No Assignment; No Third
Party Beneficiaries. This Agreement and the rights, duties and
obligations hereunder may not be assigned or delegated by the Company or Xxxxx
Fargo. Any purported assignment or delegation of rights, duties or
obligations hereunder shall be void and of no effect. This Agreement
and the provisions hereof shall be binding upon and shall inure to the benefit
of each of the parties and their respective successors and, to the extent
provided in Article VI, the controlling persons, officers, directors, employees
and agents referred to in Article VI. This Agreement is not intended
to confer any rights or benefits on any Persons other than as set forth in
Article VI or elsewhere in this Agreement.
Section
9.07 Severability. This
Agreement shall be deemed severable, and the invalidity or unenforceability of
any term or provision hereof shall not affect the validity or enforceability of
this Agreement or of any other term or provision hereof. Furthermore,
in lieu of any such invalid or unenforceable term or provision, the parties
hereto intend that there shall be added as a part of this Agreement a provision
as similar in terms to such invalid or unenforceable provision as may be
possible and be valid and enforceable.
Section
9.08 Further
Assurances. Each party hereto, upon the request of any other
party hereto, shall do all such further acts and execute, acknowledge and
deliver all such further instruments and documents as may be necessary or
desirable to carry out the transactions contemplated by this
Agreement.
Section
9.09 Titles and
Headings. Titles, captions and headings of the sections of
this Agreement are for convenience of reference only and shall not affect the
construction of any provision of this Agreement.
Section
9.10 Governing
Law. THIS AGREEMENT SHALL BE GOVERNED BY, INTERPRETED UNDER
AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED WITHIN THE STATE OF NEW YORK
WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS THEREOF. Any action, suit or
proceeding to enforce any provision of, or based on any matter arising out of or
in connection with, this Agreement or the transactions contemplated hereby shall
be brought in any federal court located in the Southern District of the State of
New York or any New York state court located in the Borough of
Manhattan,
S-25
and the
Company agrees to the exclusive jurisdiction of such courts (and of the
appropriate appellate courts therefrom) and each party waives (to the full
extent permitted by law) any objection it may have to the laying of venue of any
such suit, action or proceeding in any such court or that any such suit, action
or proceeding has been brought in an inconvenient forum.
Section
9.11 Waiver of Jury
Trial. The Company and Xxxxx Fargo each hereby irrevocably
waives any right it may have to a trial by jury in respect of any claim based
upon or arising out of this Agreement or any transaction contemplated
hereby.
Section
9.12 Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original, and all of which taken together shall constitute one and the
same instrument. Delivery of an executed Agreement by one party to
the other may be made by facsimile transmission.
Section
9.13 Adjustments for Stock
Splits, etc. The parties acknowledge and agree that share
related numbers contained in or contemplated by this Agreement (including within
the definitions of Monthly Floor Price, the Issuance Amount and the Maximum
Program Amount) shall be equitably adjusted to reflect stock splits, stock
dividends, reverse stock splits, combinations and similar events provided, however, that the
“$1.00” referred to in the definition of “Daily Floor Price” shall not be
adjusted as the result of any such event.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by
the undersigned, thereunto duly authorized, as of the date first set forth
above.
MDU
RESOURCES GROUP, INC.
|
||
By:
|
/s/ Xxxxxx X. Xxxxx
|
|
Name:
Xxxxxx X. Xxxxx
Title:
Executive Vice President, Treasurer and Chief Financial
Officer
|
||
|
||
XXXXX
FARGO SECURITIES, LLC
|
||
By:
|
/s/ X. Xxxx Genatowski
|
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Name:
X. Xxxx Genatowski
Title:
Managing Director
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