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<ACCESSION-NUMBER>0001193125-17-232356
<TYPE>8-K
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<ITEMS>9.01
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<CONFORMED-NAME>Spark Energy, Inc.
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<STREET1>12140 WICKCHESTER LANE
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<CITY>HOUSTON
<STATE>TX
<ZIP>77079
<PHONE>(713) 600-2600
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<TYPE>8-K
<SEQUENCE>1
<FILENAME>d426803d8k.htm
<DESCRIPTION>FORM 8-K
<TEXT>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): July 21, 2017
Spark Energy, Inc.
(Exact Name of Registrant as Specified in its Charter)
Delaware 001-36559 46-5453215
(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification Number)
12140 Wickchester Lane, Suite 100
Houston, Texas 77079
(Address of Principal Executive Offices)
(Zip Code)
(713) 600-2600
(Registrant’s Telephone Number, Including Area Code)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions:
? Written communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
? Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
? Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange
Act (17 CFR 240.14d-2(b))
? Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange
Act (17 CFR 240.13e-4(c))
Indicate by check mark whether the registrant is an emerging growth company as
defined in Rule 405 of the Securities Act of 1933(§230.405 of this chapter) or
Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ?
If an emerging growth company, indicate by check mark if the registrant has
elected not to use the extended transition period for complying with any new or
revised financial accounting standards provided pursuant to Section 13(a) of the
Exchange Act. ?
--------------------------------------------------------------------------------
Item 1.01 Entry into a Material Definitive Agreement.
On July 21, 2017, Spark Energy, Inc. (the “Company”) entered into an
At-the-Market Issuance Sales Agreement (the “ATM Agreement”) with FBR Capital
Markets & Co. as sales agent (the “Agent”). Pursuant to the terms of the ATM
Agreement, the Company may sell from time to time through the Agent the
Company’s 8.75% Series A Fixed-to-Floating Rate Cumulative Redeemable Perpetual
Preferred Stock, par value $0.01 per share and liquidation preference $25.00 per
share, having an aggregate offering price of up to $50,000,000 (the “Series A
Preferred Stock”). Sales of the Series A Preferred Stock, if any, will be made
by any method permitted by law deemed to be an “at the market” offering as
defined in Rule 415 of the Securities Act of 1933, as amended, including,
without limitation, sales made directly on the NASDAQ Global Select Market
(“NASDAQ”), by means of ordinary brokers’ transactions between members of the
NASDAQ, or to look through a market maker.
In connection with each sale of the Series A Preferred Stock pursuant to the ATM
Agreement, the Company will provide a placement notice to the Agent containing
the parameters for which Series A Preferred Stock are to be sold, including, but
not limited to, the number of shares of Series A Preferred Stock and the time
period during which such sales are requested to be made, subject to the terms
and conditions of the ATM Agreement.
The Company intends to use the net proceeds from any sales pursuant to the ATM
Agreement, after deducting the sales agent’s commissions and the Company’s
offering expenses, for general corporate purposes, which may include, among
other things, funding working capital, capital expenditures, liquidity for
operational contingencies, debt repayments and acquisitions.
The Series A Preferred Stock will be issued pursuant to the Company’s existing
effective shelf registration statement on Form S-3 (File No. 333-214023), which
was declared effective by the Securities and Exchange Commission on October 20,
2016, and a prospectus supplement thereto.
The ATM Agreement contains customary representations, warranties and agreements
by the Company, indemnification obligations of the Company and the Agent,
including for liabilities under the Securities Act of 1933, as amended, other
obligations of the parties and termination provisions. The foregoing description
of the ATM Agreement does not purport to be complete and is qualified in its
entirety by reference to the full text of the ATM Agreement, a copy of which is
filed herewith as Exhibit 1.1 and is incorporated by reference herein. Legal
opinions relating to the Series A Preferred Stock are filed herewith as Exhibits
5.1 and 8.1.
The Agent and certain of its affiliates have from time to time performed, and
may in the future perform, various financial advisory and commercial and
investment banking services for the Company and its affiliates, for which they
have received and in the future will receive customary compensation and expense
reimbursement.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
Exhibit
No. Description
1.1 At-the-Market Issuance Sales Agreement dated July 21, 2017, between
Spark Energy, Inc. and FBR Capital Markets & Co., as sales agent
5.1 Opinion of Andrews Kurth Kenyon LLP regarding legality of the Series A
Preferred Stock
8.1 Opinion of Andrews Kurth Kenyon LLP relating to tax matters
Consent of Andrews Kurth Kenyon LLP (included in its opinions filed as
23.1 Exhibits 5.1 and 8.1)
--------------------------------------------------------------------------------
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Dated: July 21, 2017
Spark Energy, Inc.
By: /s/ Gil Melman
Name: Gil Melman
Title: Vice President, General Counsel and Corporate Secretary
--------------------------------------------------------------------------------
Exhibit
No. Description
1.1 At-the-Market Issuance Sales Agreement dated July 21, 2017, between
Spark Energy, Inc. and FBR Capital Markets & Co., as sales agent
5.1 Opinion of Andrews Kurth Kenyon LLP regarding legality of the Series A
Preferred Stock
8.1 Opinion of Andrews Kurth Kenyon LLP relating to tax matters
23.1 Consent of Andrews Kurth Kenyon LLP (included in its opinions filed as
Exhibits 5.1 and 8.1)
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-1.1
<SEQUENCE>2
<FILENAME>d426803dex11.htm
<DESCRIPTION>EX-1.1
<TEXT>
Exhibit 1.1
SPARK ENERGY, INC.
8.75% Series A Fixed-to-Floating Rate
Cumulative Redeemable Perpetual Preferred Stock
At-the-Market Issuance Sales Agreement
July 21, 2017
FBR Capital Markets & Co.
1300 North 17th Street
Suite 1400
Arlington, Virginia 22209
Ladies and Gentlemen:
Spark Energy, Inc., a Delaware corporation (the “Company”), confirms its
agreement (this “Agreement”) with FBR Capital Markets & Co. (the “Agent”), with
respect to the issuance and sale from time to time by the Company, in the manner
and subject to the terms and conditions described in this Agreement, of the
Company’s 8.75% Series A Fixed-to-Floating Rate Cumulative Redeemable Perpetual
Preferred Stock (the “Preferred Stock”) having an aggregate offering price of up
to $50.0 million (the “Placement Shares”), as follows:
1. Issuance and Sale of Shares. From time to time during the term of this
Agreement, on the terms and subject to the conditions set forth herein, the
Company may issue and sell through the Agent the Placement Shares; provided
however, that in no event shall the Company issue or sell through the Agent such
number or dollar amount of Placement Shares that (a) exceeds the number of
shares or dollar amount of Preferred Stock registered on the effective
Registration Statement (as defined below) and included in the Prospectus (as
defined below) pursuant to which the offerings contemplated hereunder are being
made, or (b) exceeds the number of authorized but unissued shares of Preferred
Stock, as applicable (the lesser of (a) or (b) the “Maximum Amount”).
Notwithstanding anything to the contrary contained herein, the parties hereto
agree that compliance with the limitations set forth in this Section 1 with
respect to the Maximum Amount shall be the sole responsibility of the Company
and that Agent shall have no obligation in connection with such compliance. The
issuance and sale of Placement Shares through the Agent will be effected
pursuant to the Registration Statement, although nothing in this Agreement shall
be construed as requiring the Company to use the Registration Statement to issue
any Placement Shares.
The Company has filed, in accordance with the provisions of the Securities Act
of 1933, as amended, and the rules and regulations thereunder (the “Securities
Act”), with the Securities and Exchange Commission (the “Commission”), a
registration statement on Form S-3 (File No. 333-214023), including a base
prospectus, relating to certain securities of the Company, including the
Placement Shares to be issued from time to time by the Company, and which
incorporates by reference documents that the Company has filed or will file in
accordance with the provisions of the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder (the “Exchange Act”). Except
where the context otherwise requires, such registration statement at the time of
such registration statement’s effectiveness, and any post-effective
--------------------------------------------------------------------------------
amendment thereto, including all documents filed as part thereof or incorporated
by reference therein, and including any information contained in a Prospectus
(as defined below) subsequently filed with the Commission pursuant to Rule
424(b) or deemed to be a part of such registration statement pursuant to Rule
430B, is herein called the “Registration Statement.” The Company has prepared a
prospectus supplement to the base prospectus included as part of such
registration statement specifically relating to the Placement Shares (the
“Prospectus Supplement”). If the Company files a successor registration
statement with respect to the Placement Shares, after effectiveness of any such
registration statement, all references to “Registration Statement” included in
this Agreement shall be deemed to include the final form of prospectus,
including all documents included therein by reference, included in any such
registration statement at the time such registration statement became effective.
The base prospectus, including all documents incorporated or deemed incorporated
therein by reference to the extent such information has not been superseded or
modified in accordance with Rule 412 under the Securities Act (as qualified by
Rule 430B(g) under the Securities Act), included in the Registration Statement,
as it may be supplemented by the Prospectus Supplement, in the form in which
such base prospectus and/or Prospectus Supplement have most recently been filed
by the Company with the Commission pursuant to Rule 424(b), is herein called the
“Prospectus.” The Company will furnish to Agent, for use by Agent, copies of the
Prospectus. Any reference herein to the Registration Statement, the Prospectus
or any amendment or supplement thereto shall be deemed to refer to and include
the documents incorporated or deemed incorporated by reference therein, and any
reference herein to the terms “amend,” “amendment” or “supplement” with respect
to the Registration Statement or the Prospectus shall be deemed to refer to and
include the filing after the execution hereof of any document with the
Commission deemed to be incorporated by reference therein (the “Incorporated
Documents”).
For purposes of this Agreement, all references to the Registration Statement,
the Prospectus or to any amendment or supplement thereto shall be deemed to
include the most recent copy filed with the Commission pursuant to its
Electronic Data Gathering Analysis and Retrieval System, or if applicable, the
Interactive Data Electronic Application system when used by the Commission
(collectively, “EDGAR”).
2. Placements. Each time that the Company wishes to issue and sell Placement
Shares hereunder (each, a “Placement”), it will notify the Agent determined in
the sole discretion of the Company by email notice (or other method mutually
agreed to in writing by the parties) of the number of Placement Shares to be
sold, the time period during which sales are requested to be made, any
limitation on the number of Placement Shares that may be sold in any one day and
any minimum price below which sales may not be made (a “Placement Notice”), the
form of which is attached hereto as Schedule 1. Each Placement Notice shall
originate from any of the individuals from the Company set forth on Schedule 3
(with a copy to each of the other individuals from the Company listed on such
schedule), and shall be addressed to each of the individuals from the Agent set
forth on Schedule 3, as such Schedule 3 may be amended from time to time. Each
Placement Notice shall be effective immediately upon receipt by the Agent unless
and until (i) Agent declines to accept the terms contained therein for any
reason, in its sole discretion, (ii) the entire amount of the Placement Shares
thereunder has been sold, (iii) the Company suspends or terminates such
Placement Notice or issues a subsequent Placement Notice that supersedes the
parameters set forth in the earlier dated Placement Notice, which suspension,
termination or superseding Placement Notice, may be exercised by the
2
--------------------------------------------------------------------------------
Company in its sole discretion, or (iv) this Agreement has been terminated under
the provisions of Section 13. The amount of any discount, commission or other
compensation to be paid by the Company to Agent in connection with the sale of
the Placement Shares shall be calculated in accordance with the terms set forth
in Schedule 2. It is expressly acknowledged and agreed that neither the Company
nor the Agent will have any obligation whatsoever with respect to a Placement or
any Placement Shares unless and until the Company delivers a Placement Notice to
Agent and Agent does not decline such Placement Notice pursuant to the terms set
forth above, and then only upon the terms specified therein and herein. In the
event of a conflict between the terms of Sections 2 or 3 of this Agreement and
the terms of a Placement Notice, the terms of such Placement Notice will
control.
3. Sale of Placement Shares by Agent. Subject to the terms and conditions of
this Agreement, for the period specified in a Placement Notice, Agent will use
its commercially reasonable efforts consistent with its normal trading and sales
practices and applicable state and federal laws, rules and regulations and the
rules of The NASDAQ Global Select Market (the “Primary Stock Exchange”), to sell
the Placement Shares up to the amount specified in, and otherwise in accordance
with the terms of, such Placement Notice. Agent will provide written
confirmation to the Company no later than the opening of the Trading Day (as
defined below) immediately following the Trading Day on which it has made sales
of Placement Shares hereunder setting forth the number of Placement Shares sold
on such day, the compensation payable by the Company to Agent pursuant to
Section 2 with respect to such sales, and the Net Proceeds (as defined below)
payable to the Company, with an itemization of the deductions made by Agent (as
set forth in Section 5(b)) from the gross proceeds that it receives from such
sales. Subject to the terms of a Placement Notice, Agent may sell Placement
Shares by any method permitted by law deemed to be an “at the market offering”
as defined in Rule 415 and agreed to by the Company and the Agent, including
without limitation sales made directly on the Primary Stock Exchange, by means
of ordinary brokers’ transactions between members of the Primary Stock Exchange,
or to or through a market maker. Subject to the terms of a Placement Notice and
with the Company’s express prior written consent, Agent may also sell Placement
Shares by any other method permitted by law, including but not limited to
negotiated transactions. “Trading Day” means any day on which Preferred Stock is
purchased and sold on the Primary Stock Exchange. During the term of this
Agreement, neither Agent nor any of its affiliates or subsidiaries shall engage
in (i) any short sale of any security of the Company or (ii) any sale of any
security of the Company that Agent does not own or any sale which is consummated
by the delivery of a security of the Company borrowed by, or for the account of,
Agent, or (iii) any market making, bidding, purchasing, stabilization or other
trading activity with regard to the Preferred Stock or related derivative
securities, or attempting to induce another person to do any of the foregoing,
if such activity would be prohibited under Regulation M or other
anti-manipulation rules under the Securities Act. During the term of this
Agreement, neither Agent nor any of its affiliates or subsidiaries shall engage
in any proprietary trading or trading for Agent’s (or its affiliates’ or
subsidiaries’) own account.
4. Suspension of Sales. The Company or the Agent may, upon notice to the other
party in writing (including by email correspondence to each of the individuals
of the other party set forth on Schedule 3, if receipt of such correspondence is
actually acknowledged by any of the individuals to whom the notice is sent,
other than via auto-reply) or by telephone (confirmed immediately by verifiable
facsimile transmission or email correspondence to each of the
3
--------------------------------------------------------------------------------
individuals of the other party set forth on Schedule 3), suspend any sale of
Placement Shares (a “Suspension”); provided, however, that such suspension shall
not affect or impair any party’s obligations with respect to any Placement
Shares sold hereunder prior to the receipt of such notice. While a Suspension is
in effect, any obligation under Sections 7(l), 7(m), and 7(n) of this Agreement
with respect to the delivery of certificates, opinions, or comfort letters to
Agent, shall be waived. Each of the parties agrees that no such notice under
this Section 4 shall be effective against any other party unless it is made to
one of the individuals named on Schedule 3 hereto, as such Schedule may be
amended from time to time.
5. Sale and Delivery to the Agent; Settlement.
(a) Sale of Placement Shares. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, and upon the Agent’s acceptance of the terms of a Placement Notice, and
unless the sale of the Placement Shares described therein has been declined,
suspended, or otherwise terminated in accordance with the terms of this
Agreement, Agent, for the period specified in the applicable Placement Notice,
will use its commercially reasonable efforts consistent with its normal trading
and sales practices and applicable state and federal laws, rules and regulations
and the rules of the Primary Stock Exchange to sell such Placement Shares up to
the amount specified in, and otherwise in accordance with the terms of, such
Placement Notice. The Company acknowledges and agrees that (i) there can be no
assurance that Agent will be successful in selling Placement Shares, (ii) Agent
will incur no liability or obligation to the Company or any other person or
entity if it does not sell Placement Shares for any reason other than a failure
by Agent to use its commercially reasonable efforts consistent with its normal
trading and sales practices and applicable state and federal laws, rules and
regulations and the rules of the Primary Stock Exchange to sell such Placement
Shares as required under this Agreement and (iii) Agent shall be under no
obligation to purchase Placement Shares on a principal basis pursuant to this
Agreement, except as otherwise agreed to in writing by Agent and the Company.
(b) Settlement of Placement Shares. Unless otherwise specified in the
applicable Placement Notice, settlement for sales of Placement Shares (i) prior
to September 5, 2017, will occur on the third (3rd) Trading Day, and (ii) on and
after September 5, 2017, will occur on the second (2nd) Trading Day, following
the date on which such sales are made, unless, in either case, an earlier day
becomes industry practice for regular way trading (each, a “Settlement Date”).
Agent shall use its best efforts to notify the Company of each sale of Placement
Shares no later than the opening of the Trading Day immediately following the
Trading Day that Agent sold such Placement Shares. The amount of proceeds to be
delivered to the Company on a Settlement Date against receipt of the Placement
Shares sold (the “Net Proceeds”) will be equal to the aggregate sales price
received by Agent, after deduction for (i) Agent’s commission, discount or other
compensation for such sales payable by the Company pursuant to Section 2 hereof,
and (ii) any transaction fees imposed by any governmental or self-regulatory
organization in respect of such sales.
(c) Delivery of Placement Shares. On or before each Settlement Date, the
Company will, or will cause its transfer agent to, electronically transfer the
Placement Shares being sold by crediting Agent’s or its designee’s account
(provided Agent shall have given the Company written notice of such designee and
such designee’s account information at least one
4
--------------------------------------------------------------------------------
Trading Day prior to the Settlement Date) at The Depository Trust Company
through its Deposit and Withdrawal at Custodian System or by such other means of
delivery as may be mutually agreed upon by the parties hereto which in all cases
shall be freely tradable, transferable, registered shares in good deliverable
form. On each Settlement Date, Agent will deliver the related Net Proceeds in
same day funds to an account designated by the Company on, or prior to, the
Settlement Date. The Company agrees that if the Company, or its transfer agent
(if applicable), defaults in its obligation to deliver Placement Shares on a
Settlement Date through no fault of Agent, then in addition to and in no way
limiting the rights and obligations set forth in Section 11(a) hereto, it will
(i) hold Agent harmless against any actual out-of-pocket loss, claim, damage, or
reasonable, documented expense (including reasonable and documented legal fees
and expenses), as incurred, arising out of or in connection with such default by
the Company or its transfer agent (if applicable) and (ii) pay to Agent (without
duplication) any commission, discount, or other compensation to which it would
otherwise have been entitled absent such default.
(d) Limitations on Offering Size. Under no circumstances shall the Company
cause or request the offer or sale of any Placement Shares if, after giving
effect to the sale of such Placement Shares, the aggregate number or aggregate
gross sales proceeds of Placement Shares sold pursuant to this Agreement would
exceed the lesser of (A) together with all sales of Placement Shares under this
Agreement, the Maximum Amount, and (B) the amount authorized from time to time
to be issued and sold under this Agreement by the Company’s board of directors,
a duly authorized committee thereof or a duly authorized executive committee,
and notified to Agent. Under no circumstances shall the Company cause or request
the offer or sale of any Placement Shares pursuant to this Agreement at a price
lower than the minimum price authorized from time to time by the Company’s board
of directors, a duly authorized committee thereof or a duly authorized executive
committee.
6. Representations and Warranties of the Company. Except as disclosed in the
Registration Statement (including the Incorporated Documents) or Prospectus
(including the Incorporated Documents), the Company represents and warrants to,
and agrees with the Agent, that as of the date of this Agreement and as of each
Applicable Time (as defined below), unless such representation, warranty or
agreement specifies a different date or time:
(a) A registration statement on Form S-3 (File No. 333-214023) with respect to
the Placement Shares, has been filed with the Commission under the Securities
Act; and become effective under the Securities Act; and, at the time of filing,
was prepared by the Company in conformity with the requirements of the
Securities Act. The Company meets the requirements for use of Form S-3 under the
Securities Act. The Commission has not issued any order suspending the
effectiveness of the Registration Statement or any part thereof, and no
proceeding for such purpose has been instituted or, to the knowledge of the
Company, threatened by the Commission.
(b) No order preventing or suspending the use of the Prospectus has been issued
by the Commission, and the Registration Statement and Prospectus, at the time of
filing thereof, conformed in all material respects to the requirements of the
Securities Act, and did not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which
5
--------------------------------------------------------------------------------
they were made, not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance upon
and in strict conformity with the information furnished in writing to the
Company by or on behalf of the Agent expressly for use therein.
(c) (i) The Registration Statement, when it became effective and at the time of
execution of this Agreement, did not contain, and, as amended or supplemented,
if applicable, at each Applicable Time, will not contain, any 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; (ii) the
Prospectus, as of the date hereof did not, and the Prospectus, as then amended
or supplemented, if applicable, at each Applicable Time and Representation Date,
will not, contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, however,
that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in strict conformity with the information
furnished in writing to the Company by or on behalf of the Agent expressly for
use therein.
(d) The Company will file with the Commission a Prospectus Supplement relating
to the Placement Shares in accordance with Rule 424(b). As of its filing date,
the Prospectus will conform in all material respects to the requirements of the
Securities Act. The documents incorporated by reference or deemed to be
incorporated by reference in the Registration Statement and the Prospectus, as
the case may be, at the respective times they hereafter are filed with the
Commission, conformed or will conform in all material respects to the
requirements of the Securities Act or the Exchange Act, as applicable, and the
applicable rules and regulations of the Commission thereunder. The documents
incorporated by reference or deemed to be incorporated by reference in the
Registration Statement and the Prospectus, as the case may be, did not and will
not include an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading.
(e) At the time of filing the Registration Statement and at the Applicable
Time, the Company was not and is not an “ineligible issuer,” as defined under
Rule 405.
(f) The Company has been duly incorporated and is validly existing as a
corporation, in good standing under the laws of the State of Delaware, with full
power and authority (corporate and other) to own, lease and operate its
properties and conduct its business as described in the Registration Statement
and the Prospectus, and to enter into and perform its obligations under this
Agreement, and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any business so
as to require such qualification, except where the failure so to qualify or be
in good standing would not have a material adverse effect on the general
affairs, business, prospects, management, financial position, shareholders’
equity or results of operations of the Company and the Subsidiaries, considered
as one enterprise (a “Material Adverse Effect”).
6
--------------------------------------------------------------------------------
(g) Each of Spark Holdco, LLC (“Spark HoldCo”), a Delaware limited liability
company of which the Company is the sole managing member, and the other
subsidiaries of the Company (collectively, the “Subsidiaries” and each a
“Subsidiary”) has been duly incorporated, formed or organized, as applicable,
and is validly existing as a corporation, limited liability company, general or
limited partnership or other organization, as applicable, in good standing under
the laws of the jurisdiction of its incorporation, formation or organization, as
applicable, with full power and authority to own, lease and operate its
properties and conduct its business as described in the Registration Statement
and the Prospectus, and has been duly qualified as a foreign corporation,
limited liability company, general or limited partnership or other organization,
for the transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, except where the failure so to
qualify or be in good standing would not have a Material Adverse Effect; all of
the issued and outstanding capital stock, member interests, general or limited
partner interest or other ownership interests of each Subsidiary have been duly
and validly authorized and issued, are fully paid and non-assessable (except, in
the case of a limited liability company or limited partnership, as such
non-assessability may be affected by applicable law) and are owned by the
Company, directly or through Subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity (“Lien”) (other
than Liens described in the Registration Statement or the Prospectus).
(h) All of the issued and outstanding units representing limited liability
company interests in Spark HoldCo have been duly and validly authorized and
issued, and are fully paid and non-assessable (except as such non-assessability
may be affected by Sections 18-607 and 18-804 of the Delaware Limited Liability
Company Act (the “Delaware LLC Act”)), and those that are owned by the Company
free and clear of any Lien (other than Liens described in the Registration
Statement or the Prospectus).
(i) The Company has or will have an authorized capitalization as described in
the Prospectus, as incorporated by reference to and as of the Company’s then
most recently completed quarter or fiscal year, contained in the Company’s
quarterly report on Form 10-Q or annual report on Form 10-K, as applicable, at
the indicated date, and all of the issued and outstanding shares of capital
stock of the Company as of each such date, will conform to the descriptions
thereof contained in the Registration Statement and Prospectus. The Placement
Shares to be sold by the Company pursuant to this Agreement have been duly
authorized for issuance and sale and, when issued and delivered by the Company
in accordance with the terms of this Agreement against payment of the
consideration set forth herein, will be validly issued and fully paid and
non-assessable. The Placement Shares, when issued and delivered in accordance
with this Agreement against payment therefor as provided herein, will conform to
the description thereof contained in the Registration Statement and the
Prospectus.
(j) The Placement Shares, will be issued in compliance with all applicable
rules of Primary Stock Exchange as of the date of this Agreement.
(k) This Agreement has been duly authorized, executed and delivered by the
Company.
7
--------------------------------------------------------------------------------
(l) The sale of the Placement Shares hereunder, the execution of this Agreement
by the Company and the compliance by the Company with all of the provisions of
this Agreement and the consummation of the transactions herein contemplated will
not conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company or
any of the Subsidiaries is a party or by which the Company or any of the
Subsidiaries is bound or to which any of the property or assets of the Company
or any of the Subsidiaries is subject, nor will such action result in any
violation of the provisions of the certificate or articles of incorporation or
by-laws (or other organization documents) of the Company or any of the
Subsidiaries or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of the
Subsidiaries or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any such court or
governmental agency or body is required for the sale of the Placement Shares
hereunder or the consummation by the Company of the transactions contemplated by
this Agreement, except for (i) such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities or
Blue Sky laws or under the Conduct Rules of the Financial Industry Regulatory
Authority (“FINRA”), in connection with the purchase and distribution of the
Placement Shares by the Agent and (ii) such consents that have been, or prior to
any such sale will be, obtained; provided that no representation or warranty is
made in this paragraph with respect to the antifraud provisions of the federal
or state securities laws.
(m) KPMG, LLP, who has certified certain financial statements of the Company
and the Subsidiaries, is an independent public accounting firm as required by
the Securities Act. The financial statements, together with related schedules
and notes thereto, included or incorporated by reference in the Registration
Statement and the Prospectus, comply in all material respects with the
requirements of the Securities Act and present fairly the consolidated financial
position, results of operations and changes in financial position of the Company
and the Subsidiaries on the basis stated therein at and as of the respective
dates or for the respective periods to which they apply; and such statements and
related schedules and notes have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
involved, except as disclosed therein. All other financial information included
or incorporated by reference in the Registration Statement and the Prospectus
has been derived from the accounting records of the Company and presents fairly
in all material respects the information shown thereby. Except as included or
incorporated by reference therein, no historical financial statements or
supporting schedules are required to be included or incorporated by reference in
the Registration Statement or the Prospectus under the Securities Act. The
Company does not have any material liabilities or obligations, direct or
contingent (including any off-balance sheet obligations), that are not described
in the Registration Statement and Prospectus. All disclosures contained or
incorporated by reference in the Registration Statement and the Prospectus
regarding “non-GAAP financial measures” (as such term is defined by the
Securities Act) comply with Regulation G promulgated under the Exchange Act and
Item 10 of Regulation S-K promulgated under the Securities Act, to the extent
applicable.
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(n) Other than as set forth in the Registration Statement and Prospectus,
neither the Company nor any Subsidiary has sustained since the date of the
latest audited financial statements included or incorporated by reference in the
Registration Statement and the Prospectus, any material loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the Registration
Statement and the Prospectus; and, since the respective dates as of which
information is given in the Registration Statement and the Prospectus, other
than as set forth or contemplated in the Registration Statement and the
Prospectus (i) there has not been any material change in the capital stock or
long-term indebtedness of the Company and its Subsidiaries, considered as one
enterprise, (ii) there has not been any material adverse change in or affecting
the general affairs, business, prospects, management, financial position,
shareholders’ equity or results of operations of the Company and the
Subsidiaries, considered as one enterprise, and (iii) except for the quarterly
dividends paid or to be paid on the Common Stock or Series A Preferred Stock in
the ordinary course there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock, in each
case, otherwise than as set forth or contemplated in the Registration Statement
and the Prospectus.
(o) Neither the Company nor any of the Subsidiaries is (i) in violation of its
certificate or articles of incorporation or bylaws (or other organization
documents), (ii) in violation of any law, ordinance, administrative or
governmental rule or regulation applicable to the Company or any of the
Subsidiaries, (iii) in violation of any decree of any court or governmental
agency or body having jurisdiction over the Company or any of the Subsidiaries,
or (iv) in default in the performance of any obligation, agreement or condition
contained in any bond, debenture, note or any other evidence of indebtedness or
in any agreement, indenture, lease or other instrument to which the Company or
any of the Subsidiaries is a party or by which any of them or any of their
respective properties may be bound, except, in the case of clauses (ii), (iii)
and (iv), where any such violation or default, individually or in the aggregate,
would not have a Material Adverse Effect.
(p) Each of the Company and each Subsidiary has good and marketable title to
all real and personal property owned by it, in each case free and clear of all
Liens, encumbrances and defects except such as are described in the Registration
Statement and the Prospectus or such as do not materially affect the value of
such property and do not interfere with the use made and proposed to be made of
such property by the Company or any Subsidiary; and any real property and
buildings held under lease by the Company or any Subsidiary are held under
valid, subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the use made and proposed to be made of such
property and buildings by the Company or any Subsidiary.
(q) Other than as set forth in the Registration Statement and Prospectus, there
is no action, suit, proceeding, inquiry or investigation before or brought by
any arbitrator, court, governmental body, regulatory body, administrative agency
or other authority, body or agency having jurisdiction over the Company or any
of the Subsidiaries or any of their respective properties, assets or operations
or self-regulatory organization or other non-governmental regulatory authority
(including, without limitation, Primary Stock Exchange) now pending or, to the
knowledge of the Company, threatened, against the Company or any of the
Subsidiaries, which could reasonably be expected to result in a Material Adverse
Effect, or which could reasonably be expected to materially and adversely affect
the consummation of the transactions contemplated by this Agreement or which are
required to be described in the Registration Statement or the Prospectus.
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(r) Each of the Company and each of the Subsidiaries possesses all permits,
licenses, approvals, consents and other authorizations (collectively, “Permits”)
issued by the appropriate federal, state, local or foreign regulatory agencies
or bodies necessary to conduct the businesses now operated by each of them; each
of the Company and each of the Subsidiaries is in compliance with the terms and
conditions of all such Permits; all of the Permits are valid and in full force
and effect, except, in each case, where the failure so to comply or where the
invalidity of such Permits or the failure of such Permits to be in full force
and effect, individually or in the aggregate, would not have a Material Adverse
Effect; and none of the Company nor any Subsidiary has received any notice of
proceedings relating to the revocation or material modification of any such
Permits.
(s) Each of the Company and each of the Subsidiaries own or possess, or can
acquire on reasonable terms, adequate patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other intellectual
property (collectively, “Intellectual Property”) necessary to carry on the
business now operated by them, except to the extent that the failure to own,
possess or have other rights in such Intellectual Property would not, singly or
in the aggregate, reasonably be expected to have a Material Adverse Effect, and
none of the Company or any of the Subsidiaries has received any notice or is
otherwise aware of any infringement of or conflict with asserted rights of
others with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid or inadequate
to protect the interest of the Company or any of the Subsidiaries therein, and
which infringement or conflict (if the subject of any unfavorable decision,
ruling or finding) or invalidity or inadequacy, singly or in the aggregate,
would result in a Material Adverse Effect.
(t) No labor dispute with the employees of any of the Company or any of the
Subsidiaries exists or, to the knowledge of the Company, is imminent, and none
of the Company or any of the Subsidiaries is aware of any existing or imminent
labor disturbance by the employees of any of their respective principal
suppliers, manufacturers, customers or contractors, which, in any case, would
result in a Material Adverse Effect.
(u) The Company and the Subsidiaries are insured by insurers of recognized
financial responsibility against such losses and risks and in such amounts as
are prudent and customary in the respective businesses in which they are
engaged; none of the Company nor any Subsidiary has been refused any insurance
coverage sought or applied for; and the Company has no reason to believe that
either it or any Subsidiary will not be able to renew its or their respective
existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its
business at a cost that would not have a Material Adverse Effect.
(v) The Company and each of the Subsidiaries have made and keep books, records
and accounts, which, in reasonable detail, accurately and fairly reflect the
transactions and dispositions of the assets of the Company and the Subsidiaries.
The Company maintains a
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system of internal accounting controls 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 accountability for assets;
(iii) access to assets is permitted only in accordance with management’s general
or specific authorization; and (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.
(w) Except as set forth or contemplated in the Registration Statement and the
Prospectus, since the date of the latest audited financial statements included
or incorporated by reference in the Registration Statement and the Prospectus,
(i) the Company has not been advised of (x) any material weaknesses or
significant deficiencies in the design or operation of internal controls that
could reasonably be expected to materially affect the ability of the Company and
each of the Subsidiaries to record, process, summarize and report financial
data, or any material weaknesses in internal controls and (y) any fraud, whether
or not material, that involves management or other employees who have a
significant role in the internal controls of the Company and each of the
Subsidiaries, and (ii) there has been no change in the Company’s internal
control over financial reporting that has materially affected, or is reasonably
likely to materially affect, the Company’s internal control over financial
reporting.
(x) The Company maintains disclosure controls and procedures (as such term is
defined in Rule 13a-15(e) under the Exchange Act) that comply with the
requirements of the Exchange Act; such disclosure controls and procedures are
effective in all material respects to perform the functions for which they were
established.
(y) All United States federal income tax returns of the Company and the
Subsidiaries required by law to be filed have been filed (or extensions have
been obtained with respect thereto) and all taxes shown by such returns or
otherwise assessed, which are due and payable, have been paid, except
assessments against which appeals have been or will be promptly taken and as to
which adequate reserves have been provided. The Company and the Subsidiaries
have filed all other tax returns that are required to have been filed by them
pursuant to applicable foreign, state, local or other law, except insofar as the
failure to file such returns, individually or in the aggregate, would not result
in a Material Adverse Effect, and have paid all taxes due pursuant to such
returns or pursuant to any assessment received by the Company or any Subsidiary
except for such taxes, if any, as are being contested in good faith and as to
which adequate reserves have been provided. The charges, accruals and reserves
on the books of the Company and the Subsidiaries in respect of any income and
corporation tax liability for any years not finally determined are adequate to
meet any assessments or re-assessments for additional income tax for any years
not finally determined.
(z) Except as described in the Registration Statement and the Prospectus,
neither the Company nor any of the Subsidiaries is in violation of any statute
or any rule, regulation, decision or order of any governmental agency or body or
any court, domestic or foreign, relating to the use, production, disposal or
release of hazardous or toxic substances or relating to the protection or
restoration of the environment or human exposure to hazardous or toxic
substances (collectively, “environmental laws”), owns or operates any real
property
11
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contaminated with any substance that is subject to any environmental laws, is
liable for any off-site disposal or contamination pursuant to any environmental
laws, or is subject to any claim relating to any environmental laws, which
violation, contamination, liability or claim, individually or in the aggregate,
would have a Material Adverse Effect; and, to the best of the Company’s
knowledge, no pending investigation which might lead to such a claim exists or
has been threatened.
(aa) Each employee benefit plan, within the meaning of Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended (“ERISA”), for which
the Company would have any liability, that is maintained, administered or
contributed to by the Company or any Subsidiary for employees or former
employees of the Company and its affiliates has been maintained in compliance
with its terms and the requirements of any applicable statutes, orders, rules
and regulations, including but not limited to ERISA and the Internal Revenue
Code of 1986, as amended (the “Code”), except to the extent that failure to so
comply, individually or in the aggregate, would not have a Material Adverse
Effect. No prohibited transaction, within the meaning of Section 406 of ERISA or
Section 4975 of the Code has occurred with respect to any such plan excluding
transactions effected pursuant to a statutory or administrative exemption, that
would have or may reasonably be expected to have a Material Adverse Effect.
(bb) None of the Company nor any of the Subsidiaries, nor any director,
officer, agent, employee or other person associated with or acting on behalf of
the Company or any of its Subsidiaries, has (i) used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expense relating to
political activity; (ii) made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from corporate funds,
(iii) violated or is in violation of any provision of the Foreign Corrupt
Practices Act of 1977, or (iv) made any bribe, unlawful rebate, payoff,
influence payment, kickback or other unlawful payment.
(cc) There is and has been no failure on the part of the Company or any of the
Company’s directors or officers, in their capacities as such, to comply with any
provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations
promulgated in connection therewith, with which the Company is required to
comply as of effectiveness of the Registration Statement.
(dd) Except as described in the Registration Statement and Prospectus, there
are no persons with registration rights or other similar rights to have
securities registered pursuant to the Registration Statement or otherwise
registered by the Company under the Securities Act.
(ee) The Company is not an “investment company” as such term is defined in the
Investment Company Act of 1940, as amended (the “Investment Company Act”).
(ff) The Company has not taken and will not take, directly or indirectly, any
action designed to cause or result in, or which 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 of the Placement Shares.
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(gg) The statistical, market and industry-related data included or incorporated
by reference in the Registration Statement and the Prospectus are based on or
derived from sources which the Company believes to be reliable and accurate or
represent the Company’s good faith estimates that are made on the basis of data
derived from such sources, and the Company has obtained the written consent to
the use of such data from sources to the extent required.
(hh) Except as described in the Registration Statement and the Prospectus, no
Subsidiary is currently prohibited in any material respect, directly or
indirectly, from (i) paying any distributions to the Company or (ii) (x) making
any other distribution on such Subsidiary’s equity interests, (y) repaying to
the Company any loans or advances to such Subsidiary from the Company or
(z) transferring any of such subsidiary’s property or assets to the Company or
any other subsidiary of the Company.
(ii) The operations of the Company and each of the Subsidiaries are and have
been conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, the money laundering statutes of
all jurisdictions, the rules and regulations thereunder and any related or
similar rules, regulations or guidelines, issued, administered or enforced by
any Governmental Entity (collectively, the “Money Laundering Laws”); and no
action, suit or proceeding by or before any Governmental Entity involving the
Company or any of the Subsidiaries with respect to the Money Laundering Laws is
pending or, to the best knowledge of the Company, threatened.
(jj) None of the Company nor any of the Subsidiaries nor, to the knowledge of
any of the Company, any director, officer, agent, employee, affiliate or
representative or other person acting on behalf of or providing services to the
Company or any Subsidiary is an individual or entity (“Person”) currently the
subject or target of any sanctions administered or enforced by the United States
Government, including, without limitation, the U.S. Department of the Treasury’s
Office of Foreign Assets Control (“OFAC”), the United Nations Security Council
(“UNSC”), the European Union, Her Majesty’s Treasury (“HMT”), or other relevant
sanctions authority (collectively, “Sanctions”), nor is the Company or any
Subsidiary located, organized or resident in a country or territory that is the
subject of Sanctions.
(kk) The Company and each of the Subsidiaries acknowledge that, in accordance
with the requirements of the USA Patriot Act, the Agent is required to obtain,
verify and record information that identifies their respective clients,
including the Company, which information may include the name and address of
their respective clients, as well as other information that will allow the Agent
to properly identify their respective clients.
Any certificate signed by an officer of the Company and delivered to the Agent,
or to counsel for the Agent, pursuant to or in connection with this Agreement,
shall be deemed to be a representation and warranty by the Company to the Agent
as to the matters set forth therein.
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7. Covenants of the Company. The Company covenants and agrees with the Agent
that:
(a) Registration Statement Amendments. After the date of this Agreement and
during any period in which a prospectus relating to any Placement Shares is
required to be delivered by Agent under the Securities Act (including in
circumstances where such requirement may be satisfied pursuant to Rule 172 under
the Securities Act) (the “Prospectus Delivery Period”) (i) the Company will
notify the Agent promptly of the time when any subsequent amendment to the
Registration Statement, other than documents incorporated by reference or
amendments not related to any Placement, has been filed with the Commission
and/or has become effective or any subsequent supplement to the Prospectus has
been filed and of any request by the Commission for any amendment or supplement
to the Registration Statement or Prospectus related to the Placement or for
additional information related to the Placement, (ii) the Company will prepare
and file with the Commission, promptly upon the Agent’s written request after
confirmation from Company’s legal counsel, any amendments or supplements to the
Registration Statement or Prospectus that, in the Agent’s reasonable opinion and
confirmation of such advice by the Company’s legal counsel, may be necessary or
advisable in connection with the distribution of the Placement Shares by the
Agent (provided, however, that the failure of the Agent to make such request
shall not relieve the Company of any obligation or liability hereunder, or
affect Agent’s right to rely on the representations and warranties made by the
Company in this Agreement and provided, further, that the only remedy the Agent
shall have with respect to the failure to make such filing shall be to cease
making sales under this Agreement until such amendment or supplement is filed);
(iii) the Company will not file any amendment or supplement to the Registration
Statement or Prospectus relating to the Placement Shares or a security
convertible into the Placement Shares (other than an Incorporated Document)
unless a copy thereof has been submitted to the Agent, within a reasonable
period of time before the filing and the Agent has not reasonably and in good
faith objected thereto (provided, however, that (A) the failure of the Agent to
make such objection shall not relieve the Company of any obligation or liability
hereunder, or affect the Agent’s right to rely on the representations and
warranties made by the Company in this Agreement and (B) the Company has no
obligation to provide the Agent any advance copy of such filing or to provide
the Agent an opportunity to object to such filing if the filing does not name
the Agent or does not relate to the transaction herein provided; and provided,
further, that the only remedy the Agent shall have with respect to the failure
by the Company to obtain such consent shall be to cease making sales under this
Agreement) and the Company will furnish to the Agent, at the time of filing
thereof a copy of any document that upon filing is deemed to be incorporated by
reference into the Registration Statement or Prospectus relating to the
Placement Shares, except for those documents available via EDGAR; and (iv) the
Company will cause each amendment or supplement to the Prospectus to be filed
with the Commission as required pursuant to the applicable paragraph of Rule
424(b) or, in the case of any document to be incorporated therein by reference,
to be filed with the Commission as required pursuant to the Exchange Act, within
the time period prescribed (the determination to file or not file any amendment
or supplement with the Commission under this Section 7(a), based on the
Company’s reasonable opinion or reasonable objections, shall be made exclusively
by the Company).
(b) Notice of Commission Stop Orders. The Company will advise Agent promptly
after it receives notice or obtains knowledge thereof, of the issuance or
threatened issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement, of the suspension of the
qualification of the Placement Shares for offering or sale in any jurisdiction,
or of the initiation or threatening of any proceeding for any such purpose; and
it
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will use its commercially reasonable efforts to prevent the issuance of any stop
order or to obtain its withdrawal if such a stop order should be issued. The
Company will advise the Agent promptly after it receives any request by the
Commission for any amendments to the Registration Statement or any amendments or
supplements to the Prospectus or any Issuer Free Writing Prospectus or for
additional information related to the offering of the Placement Shares or for
additional information related to the Registration Statement, the Prospectus or
any Issuer Free Writing Prospectus.
(c) Delivery of Prospectus; Subsequent Changes. During the Prospectus Delivery
Period, the Company will use its commercially reasonable efforts to comply in
all material respects with all requirements imposed upon it by the Securities
Act, as from time to time in force, and to file on or before their respective
due dates all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act or any other provision of or under
the Exchange Act. If the Company has omitted any information from the
Registration Statement pursuant to Rule 430B, it will use its commercially
reasonable efforts to comply with the provisions of and make all requisite
filings with the Commission pursuant to said Rule 430B and to notify the Agent
promptly of all such filings. If during the Prospectus Delivery Period any event
occurs 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 a material fact
necessary to make the statements therein, in the light of the circumstances then
existing, not misleading, or if during such Prospectus Delivery Period it is
necessary to amend or supplement the Registration Statement or Prospectus to
comply with the Securities Act, the Company will promptly notify the Agent to
suspend the offering of Placement Shares during such period and the Company will
promptly amend or supplement the Registration Statement or Prospectus (at the
expense of the Company) so as to correct such statement or omission or effect
such compliance; provided, however, that, notwithstanding the foregoing, the
Company may elect to delay the filing of any such amendment or supplement, if in
the judgment of the Company, it is in the best interest of the Company to do so.
(d) Listing of Placement Shares. During the Prospectus Delivery Period, the
Company will use its commercially reasonable efforts to cause the Placement
Shares to be listed on the Primary Stock Exchange and to qualify the Placement
Shares for sale under the securities laws of such jurisdictions in the United
States as the Agent reasonably designates and to continue such qualifications in
effect so long as required for the distribution of the Placement Shares;
provided, however, that the Company shall not be required in connection
therewith to qualify as a foreign corporation or dealer in securities, file a
general consent to service of process, or subject itself to taxation in any
jurisdiction if it is not otherwise so subject.
(e) Delivery of Registration Statement and Prospectus. The Company will furnish
to the Agent and it’s counsel (at the reasonable expense of the Company) copies
of the Registration Statement, the Prospectus (including all documents
incorporated by reference therein) and all amendments and supplements to the
Registration Statement or Prospectus that are filed with the Commission during
the Prospectus Delivery Period (including all documents filed with the
Commission during such period that are deemed to be incorporated by reference
therein), in each case as soon as reasonably practicable and in such quantities
as the Agent may from time to time reasonably request and, at Agent’s request,
will also furnish copies of the
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Prospectus to each exchange or market on which sales of the Placement Shares may
be made; provided, however, that the Company shall not be required to furnish
any document (other than the Prospectus) to the Agent to the extent such
document is available on EDGAR.
(f) Earnings Statement. The Company will make generally available to its
security holders as soon as practicable, but in any event not later than 15
months after the end of the Company’s current fiscal quarter, an earnings
statement covering a 12-month period that satisfies the provisions of
Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(g) Use of Proceeds. The Company will use the Net Proceeds received by it from
the sale of the Placement Shares as described in the Prospectus in the section
entitled “Use of Proceeds.”
(h) Notice of Other Sales. Without the prior written consent of the Agent, the
Company will not, directly or indirectly, offer to sell, sell, contract to sell,
grant any option to sell or otherwise dispose of any Preferred Stock (other than
the Placement Shares offered pursuant to this Agreement) or securities
convertible into or exchangeable for Preferred Stock, warrants or any rights to
purchase or acquire, Preferred Stock during the period beginning on the date on
which any Placement Notice is delivered to Agent hereunder and ending on the
third (3rd) Trading Day immediately following the final Settlement Date with
respect to Placement Shares sold pursuant to such Placement Notice (or, if the
applicable Placement Notice has been terminated or suspended prior to the sale
of all Placement Shares covered by a Placement Notice, the date of such
suspension or termination); and will not directly or indirectly in any other
“at-the-market” or continuous equity transaction offer to sell, sell, contract
to sell, grant any option to sell or otherwise dispose of any Preferred Stock
(other than the Placement Shares offered pursuant to this Agreement) or
securities convertible into or exchangeable for Preferred Stock, warrants or any
rights to purchase or acquire, Preferred Stock prior to the termination of this
Agreement; provided, however, that such restrictions will not apply in
connection with the Company’s (i) issuance or sale of Placement Shares pursuant
to this Agreement, (ii) issuance or sale of Preferred Stock, or securities
convertible into or exercisable for Preferred Stock, offered and sold in a
privately negotiated transaction to vendors, customers, strategic partners or
potential strategic partners or other investors conducted in a manner so as not
to be integrated with the offering of Preferred Stock contemplated hereby and
(iii) issuance or sale of Preferred Stock in connection with any acquisition,
strategic investment or other similar transaction (including any joint venture,
strategic alliance or partnership).
(i) Change of Circumstances. The Company will, at any time during the pendency
of a Placement Notice advise the Agent promptly after it shall have received
notice or obtained knowledge thereof, of any information or fact that would
alter or affect in any material respect any opinion, certificate, letter or
other document required to be provided to the Agent pursuant to this Agreement.
(j) Due Diligence Cooperation. During the term of this Agreement, the Company
will cooperate with any reasonable due diligence review conducted by the Agent
or its representatives in connection with the transactions contemplated hereby,
including, without limitation, providing information and making available
documents and senior corporate officers, during regular business hours and at
the Company’s principal offices, as the Agent may reasonably request.
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(k) Required Filings Relating to Placement of Placement Shares. After the
filing of the first Prospectus Supplement, the Company will disclose in its
quarterly reports on Form 10-Q and in its annual report on Form 10-K the
aggregate number of Placement Shares sold through Agent pursuant to this
Agreement for the applicable reporting period, the Net Proceeds received by the
Company with respect to all such sales pursuant to this Agreement for the
applicable reporting period, and the aggregate compensation payable by the
Company to Agent with respect to all such sales pursuant to this Agreement for
the applicable reporting period.
(l) Representation Dates; Certificate. Each time during the term of this
Agreement that the Company (each date of filing of one or more of the documents
referred to in following clauses (i) through (iv) shall be a “Representation
Date”):
(i) amends or supplements (other than by means of a prospectus supplement
relating solely to an offering of securities other than the Placement Shares)
the Registration Statement or the Prospectus relating to the Placement Shares by
means of a post-effective amendment, sticker, or supplement but not by means of
incorporation of documents by reference into the Registration Statement or the
Prospectus relating to the Placement Shares;
(ii) files an annual report on Form 10-K under the Exchange Act (including any
Form 10-K/A containing amended audited financial information or a material
amendment to the previously filed Form 10-K);
(iii) files its quarterly reports on Form 10-Q under the Exchange Act; or
(iv) files a current report on Form 8-K containing amended financial
information (other than information “furnished” pursuant to Items 2.02 or 7.01
of Form 8-K or to provide disclosure pursuant to Item 8.01 of Form 8-K relating
to the reclassification of certain properties as discontinued operations in
accordance with Statement of Financial Accounting Standards No. 144) under the
Exchange Act;
the Company shall furnish Agent (but in the case of clause (iv) above only if
the Agent reasonably determines that the information contained in such Form 8-K
is material) with a certificate, in the form attached hereto as Exhibit 7(1)
within five (5) Trading Days. The requirement to provide a certificate under
this Section 7(1) shall be waived for any Representation Date occurring at a
time at which no Placement Notice is pending, which waiver shall continue until
the earlier to occur of the date the Company delivers a Placement Notice
hereunder (which for such calendar quarter shall be considered a Representation
Date) and the next occurring Representation Date on which the Company files its
annual report on Form 10-K.Notwithstanding the foregoing, (i) upon the delivery
of the first Placement Notice hereunder and (ii) if the Company subsequently
decides to sell Placement Shares following a Representation Date when the
Company relied on such waiver and did not provide Agent with a certificate under
this Section 7(1), then before the Agent sells any Placement Shares, the Company
shall provide the Agent with a certificate, in the form attached hereto as
Exhibit 7(1), dated the date of the applicable Placement Notice.
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(m) Legal Opinion. On or prior to the date of the first Placement Notice given
hereunder the Company shall cause to be furnished to the Agent the written
opinions and/or negative assurance letter of Andrews Kurth Kenyon LLP, or other
counsel reasonably satisfactory to the Agent (“Company Counsel”), each in form
and substance reasonably satisfactory to Agent. Thereafter, within five
(5) Trading Days of each subsequent Representation Date with respect to which
the Company is obligated to deliver a certificate in the form attached hereto as
Exhibit 7(l) for which no waiver is applicable, and not more than once per
calendar quarter, the Company shall cause to be furnished to the Agent a
negative assurance letter of Company Counsel in form and substance reasonably
satisfactory to the Agent; provided that, in lieu of such negative assurance for
subsequent periodic filings under the Exchange Act, counsel may furnish the
Agent with a letter (a “Reliance Letter”) to the effect that Agent may rely on
the negative assurance letter previously delivered under this Section 7(m) to
the same extent as if it were dated the date of such Reliance Letter (except
that statements in such prior letter shall be deemed to relate to the
Registration Statement and the Prospectus as amended or supplemented as of the
date of such Reliance Letter).
(n) Comfort Letter. On or prior to the date of the first Placement Notice given
hereunder and within five (5) Trading Days after each subsequent Representation
Date, other than under Section 7(l)(iii), the Company shall cause its
independent public accounting firm to furnish Agent letters (the “Comfort
Letters”), dated the date the Comfort Letter is delivered, which shall meet the
requirements set forth in this Section 7(n). The Comfort Letter from the
Company’s independent public accounting firm shall be in a form and substance
reasonably satisfactory to the Agent containing statements and information of
the type ordinarily included in accountants’ “comfort letters” to underwriters
with respect to the financial statements and certain financial information
contained in, or incorporated by reference in, the Registration Statement and
the Prospectus.
(o) Market Activities. The Company will not, directly or indirectly, (i) take
any action designed to cause or result in, or that constitutes or would
constitute, the stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of Preferred Stock or (ii) sell,
bid for, or purchase Preferred Stock in violation of Regulation M, or pay anyone
any compensation for soliciting purchases of the Placement Shares other than the
Agent.
(p) Investment Company Act. The Company will conduct its affairs in such a
manner so as to reasonably ensure that neither it nor the Subsidiaries will be
or become, at any time prior to the termination of this Agreement, an
“investment company,” as such term is defined in the Investment Company Act.
(q) No Offer to Sell. Other than a Permitted Free Writing Prospectus (as
defined in Section 23 of this Agreement), approved in advance by the Company and
the Agent, in its capacity as agent hereunder, neither the Agent or the Company
(including its agents and representatives, other than the Agent in its capacity
as such) will not make, use, prepare, authorize, approve or refer to any written
communication (as defined in Rule 405), required to be filed by the Company with
the Commission, that constitutes an offer to sell or solicitation of an offer to
buy Placement Shares hereunder.
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(r) Sarbanes-Oxley Act. The Company will maintain and keep accurate books and
records reflecting its assets and maintain internal accounting controls in a
manner designed to provide reasonable assurance regarding the reliability of
financial reporting and the preparation of financial statements for external
purposes in accordance with GAAP and including those policies and procedures
that (i) pertain to the maintenance of records that in reasonable detail
accurately and fairly reflect the transactions and dispositions of the assets of
the Company, (ii) provide reasonable assurance that transactions are recorded as
necessary to permit the preparation of the Company’s consolidated financial
statements in accordance with GAAP, (iii) that receipts and expenditures of the
Company are being made only in accordance with management’s and the Company’s
directors’ authorization, and (iv) provide reasonable assurance regarding
prevention or timely detection of unauthorized acquisition, use or disposition
of the Company’s assets that could have a material effect on its financial
statements. The Company will maintain disclosure controls and procedures that
comply with the requirements of the Exchange Act.
8. Representations and Covenants of Agent. The Agent represents and warrants
that it is duly registered as a broker-dealer under FINRA, the Exchange Act and
the applicable statutes and regulations of each state in which the Placement
Shares will be offered and sold, except such states in which the Agent is exempt
from registration or such registration is not otherwise required. Agent shall
continue, for the term of this Agreement, to be duly registered as a
broker-dealer under FINRA, the Exchange Act and the applicable statutes and
regulations of each state in which the Placement Shares will be offered and
sold, except such states in which it is exempt from registration or such
registration is not otherwise required, during the term of this Agreement. The
Agent shall comply with all applicable laws and regulations, including but not
limited to Regulation M, in connection with the transactions contemplated by
this Agreement, including the issuance and sale through the Agent of the
Placement Shares.
9. Payment of Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
preparation, filing, including any fees required by the Commission, and printing
of the Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment and supplement thereto and each Free
Writing Prospectus, in such number as Agent shall deem reasonably necessary,
(ii) the printing and delivery to Agent of this Agreement and such other
documents as may be reasonably required in connection with the offering,
purchase, sale, issuance or delivery of the Placement Shares, (iii) the
preparation, issuance and delivery of the certificates, if any, for the
Placement Shares to the Agent, including any stock or other transfer taxes and
any capital duties, stamp duties or other duties or taxes payable upon the sale,
issuance or delivery of the Placement Shares to the Agent, (iv) the fees and
disbursements of the counsel, accountants and other advisors to the Company,
(v) the reasonable and documented out-of-
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pocket fees and disbursements of counsel to Agent up to $50,000; (vi) the fees
and expenses of the transfer agent and registrar for the Preferred Stock,
(vii) the filing fees incident to any review by FINRA of the terms of the sale
of the Placement Shares, and (viii) the fees and expenses incurred in connection
with the listing of the Placement Shares on the Primary Stock Exchange. Except
as otherwise provided in this Section 9, the Agent shall pay all of its own
out-of-pocket costs and expenses incurred in connection with entering into this
Agreement and the transactions contemplated by this Agreement.
10. Conditions to Agent’s Obligations. The obligations of the Agent hereunder
with respect to a Placement will be subject to the continuing accuracy and
completeness of the representations and warranties made by the Company herein
(other than those representations and warranties made as of a specified date or
time), to the due performance in all material respects by the Company of its
obligations hereunder, to the completion by the Agent of a due diligence review
satisfactory to it in its reasonable judgment, and to the continuing reasonable
satisfaction (or waiver by the Agent in its sole discretion) of the following
additional conditions:
(a) No Material Notices. None of the following events shall have occurred and
be continuing: (i) receipt by the Company of any request for additional
information from the Commission or any other federal or state governmental
authority during the period of effectiveness of the Registration Statement, the
response to which would require any post-effective amendments or supplements to
the Registration Statement or the Prospectus which have not, as of the time of
sale of such Placement Shares, been so made; or (ii) receipt by the Company of
any notification with respect to the suspension of the qualification or
exemption from qualification of any of the Placement Shares for sale in any
jurisdiction or receipt by the Company of notification of the initiation of, or
a threat to initiate, any proceeding for such purpose.
(b) Material Changes. Except as disclosed or incorporated by reference in the
Registration Statement or the Prospectus, there shall not have been any Material
Adverse Effect, or any development that would cause a Material Adverse Effect,
or a downgrading in or withdrawal of the rating assigned to any of the Company’s
securities (other than asset backed securities) by any “nationally recognized
statistical rating organization,” as such term is defined under Section 3(a)(62)
of the Exchange Act (a “Rating Organization”), or a public announcement by any
Rating Organization that it has under surveillance or review its rating of any
of the Company’s securities (other than asset backed securities), the effect of
which, in the case of any such action by a Rating Organization described above,
in the reasonable judgment of the Agent (without relieving the Company of any
obligation or liability it may otherwise have), is so material as to make it
impracticable or inadvisable to proceed with the offering of the Placement
Shares on the terms and in the manner contemplated in the Prospectus.
(c) No Misstatement or Material Omission. The Agent shall not have advised the
Company that the Registration Statement or Prospectus, or any amendment or
supplement thereto, contains an untrue statement of fact that in the Agent’s
reasonable opinion is material, or omits to state a fact that in the Agent’s
reasonable opinion is material and is required to be stated therein or is
necessary to make the statements therein not misleading.
20
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(d) Legal Opinion. The Agent shall have received the opinion and negative
assurance letter of Company Counsel required to be delivered pursuant to
Section 7(m) on or before the date on which such delivery of such opinion and
negative assurance letter are required pursuant to Section 7(m).
(e) Comfort Letter. The Agent shall have received the Comfort Letter required
to be delivered pursuant Section 7(n) on or before the date on which such
delivery of such letter is required pursuant to Section 7(n).
(f) Representation Certificate. The Agent shall have received the certificate
required to be delivered pursuant to Section 7(1) on or before the date on which
delivery of such certificate is required pursuant to Section 7(1).
(g) Secretary’s Certificate. On or prior to the first Representation Date, the
Agent, shall have received a certificate, signed on behalf of the Company by its
corporate Secretary, in form and substance satisfactory to Agent and its
counsel.
(h) No Suspension. Trading in the Common Stock and Preferred Stock shall not
have been suspended on the Primary Stock Exchange and the Common Stock and
Preferred Stock shall not have been delisted from the Primary Stock Exchange.
(i) Other Materials. On each date on which the Company is required to deliver a
certificate pursuant to Section 7(1), the Company shall have furnished to the
Agent such appropriate further information, certificates and documents as the
Agent may reasonably request. All such opinions, certificates, letters and other
documents will be in compliance with the provisions hereof.
(j) Securities Act Filings Made. All filings with the Commission required by
Rule 424 to have been filed prior to the issuance of any Placement Notice
hereunder shall have been made within the applicable time period prescribed for
such filing by Rule 424.
(k) Approval for Listing. The Placement Shares shall either have been approved
for listing on the Primary Stock Exchange, subject only to notice of issuance,
or the Company shall have filed an application for listing of the Placement
Shares on the Primary Stock Exchange at, or prior to, the issuance of any
Placement Notice.
(l) No Termination Event. There shall not have occurred any event that would
permit the Agent to terminate this Agreement pursuant to Section 13(a).
11. Indemnification and Contribution.
(a) Company Indemnification. The Company agrees to indemnify and hold harmless
the Agent and its directors, officers, employees, agents and representatives and
each person, if any, who controls the Agent within the meaning of Section 15 of
the Securities Act or Section 20(a) of the Exchange Act, against any and all
losses, liabilities, claims, damages and expenses whatsoever as incurred
(including without limitation, reasonable attorneys’ fees and any and all
reasonable expenses whatsoever incurred in investigating, preparing or defending
against any litigation, commenced or threatened, or any claim whatsoever, and
any and all
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amounts paid in settlement of any claim or litigation), joint or several, to
which they or any of them may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, liabilities, claims, damages
or expenses (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, or any post-effective amendment thereof, or the
Prospectus, or in any supplement thereto or amendment thereof, any Issuer Free
Writing Prospectus or any “issuer information” filed or required to be filed
pursuant to Rule 433(d) under the Securities Act, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading;
provided, however, that the Company will not be liable in any such case to the
extent that any such loss, liability, claim, damage or expense arises out of or
is based upon any such untrue statement or alleged untrue statement, as
originally filed or any amendment thereof, the Registration Statement, or any
post-effective amendment thereof, or the Prospectus, or in any supplement
thereto or amendment thereof or any Issuer Free Writing Prospectus in reliance
upon and in strict conformity with written information furnished to the Company
by or on behalf of the Agent expressly for use therein, it being understood and
agreed that the only such information furnished by the Agent is the information
described as such in Section 11(b) of this Agreement.
(b) Agent Indemnification. The Agent agrees to indemnify and hold harmless the
Company and each of its directors, officers, employees, agents and
representatives, and each other person, if any, who controls the Company within
the meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange
Act, against any and all losses, liabilities, claims, damages and expenses
whatsoever as incurred (including without limitation, reasonable attorneys’ fees
and any and all reasonable expenses whatsoever incurred in investigating,
preparing or defending against any litigation, commenced or threatened, or any
claim whatsoever, and any and all amounts paid in settlement of any claim or
litigation), joint or several, to which they or any of them may become subject
under the Securities Act, the Exchange Act or otherwise, insofar as such losses,
liabilities, claims, damages or expenses (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, or the Prospectus, or in
any supplement thereto or amendment thereof, any Issuer Free Writing Prospectus,
to the extent, but only to the extent, that any such loss, liability, claim,
damage or expense arises out of or is based upon any such untrue statement or
alleged untrue statement made therein in reliance upon and in strict conformity
with written information, relating to the Agent, furnished to the Company by or
on behalf of the Agent expressly for use therein.
(c) Procedure. Promptly after receipt by an indemnified party under
Section 11(a) or 11(b) of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such Section, notify each party against whom
indemnification is to be sought in writing of the commencement thereof (but the
failure so to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section 11). In case any such action is
brought against any indemnified party, and it notifies an indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein, and jointly with any other indemnifying party similarly notified, to
the extent it may elect by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such indemnified party, to
assume the defense
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thereof with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnified
party). Notwithstanding the foregoing, the indemnified party or parties shall
have the right to employ its or their own counsel in any such case, but the fees
and expenses of such counsel shall be at the expense of such indemnified party
or parties unless (i) the employment of such counsel shall have been authorized
in writing by one of the indemnifying parties in connection with the defense of
such action, (ii) the indemnifying parties shall not have employed counsel to
have charge of the defense of such action within a reasonable time after notice
of commencement of the action, or (iii) such indemnified party or parties shall
have reasonably concluded that there may be defenses available to it or them
which are different from or additional to those available to one or all of the
indemnifying parties (in which case the indemnifying parties shall not have the
right to direct the defense of such action on behalf of the indemnified party or
parties), in any of which events such fees and expenses shall be borne by the
indemnifying parties. In no event shall the indemnifying parties be liable for
fees and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, which
counsel, in the event of indemnified parties under Section 11(a), shall be
selected by the Agent. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment
(i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any indemnified party.
(d) Contribution. If the indemnification provided for in this Section 11is
unavailable to or insufficient to hold harmless an indemnified party under
Section 11(a) or 11(b) in respect of any losses, liabilities, claims, damages or
expenses (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, liabilities, claims, damages or
expenses (or actions in respect thereof) in such proportion as is appropriate to
reflect the relative benefits received by the Company, on the one hand and the
Agent, on the other hand, from the offering of the Placement Shares. 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 indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company, on the one hand, and the Underwriters, on the other hand,
in connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses (or actions in respect thereof), as
well as any other relevant equitable considerations. The relative benefits
received by the Company, on the one hand, and the Agent, on the other hand, from
the offering of the Placement Shares shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total compensation actually
received by the Agent (before deducting expenses) from the sale of Placement
Shares on behalf of the Company. The relative fault 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 the one hand, or the Agent on
the other hand, and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
23
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The Company and the Agent agree that it would not be just and equitable if
contributions pursuant to this Section 11(d) were determined by pro rata or by
any other method of allocation which does not take account of the equitable
considerations referred to above in this Section 11(d). The amount paid or
payable by an indemnified party as a result of the losses, liabilities, claims,
damages or expenses (or actions in respect thereof) referred to above in this
Section 11(d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this Section 11(d),
the Agent shall not 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
The obligations of the parties to this Agreement contained in this Section 11
are not exclusive and shall not limit any rights or remedies which may otherwise
be available to any indemnified party at law or in equity.
12. Representations and Agreements to Survive Delivery. The indemnity and
contribution agreements contained in Section 11 of this Agreement and all
representations and warranties of the Company and the Agent herein or in
certificates delivered pursuant hereto shall survive, as of their respective
dates, regardless of (a) any investigation made by or on behalf of the Agent,
any controlling persons, or the Company (or any of their respective officers,
directors or controlling persons), (b) delivery and acceptance of the Placement
Shares and payment therefor or (c) any termination of this Agreement.
13. Termination.
(a) Agent may terminate this Agreement by notice to the Company, as hereinafter
specified at any time (i) if there has been, since the time of execution of this
Agreement or since the date as of which information is given in the Prospectus,
any Material Adverse Effect, or any development that would have a Material
Adverse Effect that, in the sole, reasonable judgment of the Agent, is material
and adverse and makes it impractical or inadvisable to market the Placement
Shares or to enforce contracts for the sale of the Placement Shares, (ii) if
there has occurred any material adverse change in the financial markets in the
United States or the international financial markets, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in the reasonable judgment of the Agent, impracticable or
24
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inadvisable to market the Placement Shares or to enforce contracts for the sale
of the Placement Shares, (iii) if trading in the Common Stock or Preferred Stock
has been suspended or limited by the Commission or the Primary Stock Exchange,
or if trading generally on the Primary Stock Exchange has been suspended or
limited, or minimum prices for trading have been fixed on the Primary Stock
Exchange, (iv) if any suspension of trading of any securities of the Company on
any exchange or in the over-the-counter market shall have occurred and be
continuing, (v) if a major disruption of securities settlements or clearance
services in the United States shall have occurred and be continuing, or (vi) if
a banking moratorium has been declared by either U.S. Federal or New York
authorities. Any such termination shall be without liability of any party to any
other party except that the provisions of Section 9 (Payment of Expenses),
Section 11 (Indemnification and Contribution), Section 12 (Representations and
Agreements to Survive Delivery), Section 18 (Governing Law and Time; Waiver of
Jury Trial) and Section 19 (Consent to Jurisdiction) hereof shall remain in full
force and effect notwithstanding such termination. If the Agent elects to
terminate this Agreement as provided in this Section 13(a), the Agent shall
provide the required notice as specified in Section 14 (Notices).
(b) 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 the date of this Agreement. Any such termination shall be without
liability of any party to any other party except that the provisions of
Section 9 (Payment of Expenses), Section 11 (Indemnification and Contribution),
Section 12 (Representations and Agreements to Survive Delivery), Section 18
(Governing Law and Time; Waiver of Jury Trial) and Section 19 (Consent to
Jurisdiction) hereof shall remain in full force and effect notwithstanding such
termination.
(c) The Agent 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 the date of this Agreement. Any such termination shall be without
liability of any party to any other party except that the provisions of
Section 9 (Payment of Expenses), Section 11 (Indemnification and Contribution),
Section 12 (Representations and Agreements to Survive Delivery), Section 18
(Governing Law and Time; Waiver of Jury Trial) and Section 19 (Consent to
Jurisdiction) hereof shall remain in full force and effect notwithstanding such
termination.
(d) Unless earlier terminated pursuant to this Section 13, this Agreement shall
automatically terminate upon the issuance and sale of all of the Placement
Shares through the Agent on the terms and subject to the conditions set forth
herein except that the provisions of Section 9 (Payment of Expenses), Section 11
(Indemnification and Contribution), Section 12 (Representations and Agreements
to Survive Delivery), Section 18 (Governing Law and Time; Waiver of Jury Trial)
and Section 19 (Consent to Jurisdiction) hereof shall remain in full force and
effect notwithstanding such termination.
(e) This Agreement shall remain in full force and effect unless terminated
pursuant to Sections 13(a), (b), (c), or (d) above or otherwise by mutual
agreement of the parties; provided, however, that any such termination by mutual
agreement shall in all cases be deemed to provide that Section 9 (Payment of
Expenses), Section 11 (Indemnification and Contribution), Section 12
(Representations and Agreements to Survive Delivery), Section 18 (Governing Law
and Time; Waiver of Jury Trial) and Section 19 (Consent to Jurisdiction) shall
remain in full force and effect. Upon termination of this Agreement, the Company
shall not have any liability to the Agent for any discount, commission or other
compensation with respect to any Placement Shares not otherwise sold by the
Agent under this Agreement.
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(f) Any termination of this Agreement shall be effective on the date specified
in such notice of termination; provided, however, that such termination shall
not be effective until the close of business on the date of receipt of such
notice by the Agent or the Company, as the case may be. If such termination
shall occur prior to the Settlement Date for any sale of Placement Shares, such
Placement Shares shall settle in accordance with the provisions of this
Agreement.
14. Notices. All notices or other communications required or permitted to be
given by any party to any other party pursuant to the terms of this Agreement
shall be in writing, unless otherwise specified, and if sent to Agent, shall be
delivered to:
FBR Capital Markets & Co.
1300 North 17th Street,
Suite 1400
Arlington, Virginia 22209
Attention: Legal Department
Telephone: (703) 312-9500
Email: atmdesk@fbr.com
with a copy to:
Duane Morris LLP
One Riverfront Plaza
1037 Raymond Blvd., Suite 1800
Newark, NJ 07102
Attention: Dean M. Colucci
Telephone: (973) 424-2020
Email: dmcolucci@duanemorris.com
and if to the Company, shall be delivered to:
Spark Energy, Inc.
12140 Wickchester Lane
Suite 100
Houston, TX 77079
Attention: Gil Melman
Telephone: (281) 833-4154
Email: gmelman@sparkenergy.com
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with a copy to:
Andrews Kurth Kenyon LLP
600 Travis
Suite 4200
Houston, Texas 77002
Attention: David Buck
Telephone: (713) 220-4301
Email: davidbuck@andrewskurth.com
Each party to this Agreement may change such address for notices by sending to
the parties to this Agreement written notice of a new address for such purpose.
Each such notice or other communication shall be deemed given (i) when delivered
personally, by email, or by verifiable facsimile transmission on or before 4:30
p.m., New York City time, on a Business Day or, if such day is not a Business
Day, on the next succeeding Business Day, (ii) on the next Business Day after
timely delivery to a nationally-recognized overnight courier and (iii) on the
Business Day actually received if deposited in the U.S. mail (certified or
registered mail, return receipt requested, postage prepaid). For purposes of
this Agreement, “Business Day” shall mean any day on which the Primary Stock
Exchange and commercial banks in the City of New York are open for business.
An electronic communication (“Electronic Notice”) shall be deemed written notice
for purposes of this Section 14 if sent to the electronic mail address specified
by the receiving party under separate cover. Electronic Notice shall be deemed
received at the time the party sending Electronic Notice receives confirmation
of receipt by the receiving party. Any party receiving Electronic Notice may
request and shall be entitled to receive the notice on paper, in a nonelectronic
form (“Nonelectronic Notice”) which shall be sent to the requesting party within
ten (10) days of receipt of the written request for Nonelectronic Notice.
15. Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon the Company and the Agent and their respective successors and the
affiliates, controlling persons, partners, members, officers, directors,
employees and agents referred to in Section 11 hereof. References to any of the
parties contained in this Agreement shall be deemed to include the successors
and permitted assigns of such party. Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or
their respective successors and permitted assigns any rights, remedies,
obligations or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement. Neither party may assign its rights or
obligations under this Agreement without the prior written consent of the other
party.
16. Adjustments for Stock Splits. The parties acknowledge and agree that all
share-related numbers contained in this Agreement shall be adjusted to take into
account any share consolidation, stock split, stock dividend, corporate
domestication or similar event effected with respect to the Placement Shares.
17. Entire Agreement; Amendment; Severability. This Agreement (including all
schedules and exhibits attached hereto and Placement Notices issued pursuant
hereto) and any letter agreement relating to the offering and sale of the
Placement Shares entered into as of the date of this Agreement between the
Company and the Agent constitute the entire agreement and supersede all other
prior and contemporaneous agreements and undertakings, both written and oral,
among the parties hereto with regard to the subject matter hereof. Neither this
Agreement nor any term hereof may be amended except pursuant to a written
instrument executed by the
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Company and the Agent. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable as written by a court of competent
jurisdiction, then such provision shall be given full force and effect to the
fullest possible extent that it is valid, legal and enforceable, and the
remainder of the terms and provisions herein shall be construed as if such
invalid, illegal or unenforceable term or provision was not contained herein,
but only to the extent that giving effect to such provision and the remainder of
the terms and provisions hereof shall be in accordance with the intent of the
parties as reflected in this Agreement.
18. GOVERNING LAW AND TIME; WAIVER OF JURY TRIAL. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS. SPECIFIED TIMES OF DAY
REFER TO NEW YORK CITY TIME. EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY
IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
19. CONSENT TO JURISDICTION. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE
NON-EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN THE CITY
OF NEW YORK, BOROUGH OF MANHATTAN, FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER
OR IN CONNECTION WITH ANY TRANSACTION CONTEMPLATED HEREBY, AND HEREBY
IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING,
ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH
COURT, THAT SUCH SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM
OR THAT THE VENUE OF SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER. EACH PARTY
HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS TO PROCESS
BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF
(CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED) TO SUCH PARTY AT THE
ADDRESS IN EFFECT FOR NOTICES TO IT UNDER THIS AGREEMENT AND AGREES THAT SUCH
SERVICE SHALL CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE
THEREOF. NOTHING CONTAINED HEREIN SHALL BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT
TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW.
20. Use of Information. The Agent may not use any information gained in
connection with this Agreement and the transactions contemplated by this
Agreement, including due diligence, to advise any party with respect to
transactions not expressly approved by the Company.
21. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which 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 or email of a .pdf
attachment.
28
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22. Effect of Headings. The section, Schedule and Exhibit headings herein are
for convenience only and shall not affect the construction hereof.
23. Permitted Free Writing Prospectuses.
The Company represents, warrants and agrees that, unless it obtains the prior
consent of Agent which consent shall not be unreasonably withheld, conditioned
or delayed, and the Agent represents, warrants and agrees that, unless it
obtains the prior consent of the Company, which consent shall not be
unreasonably withheld, conditioned or delayed, it has not made and will not make
any offer relating to the Placement Shares that would constitute an Issuer Free
Writing Prospectus, or that would otherwise constitute a “free writing
prospectus,” as defined in Rule 405, required to be filed with the Commission.
Any such free writing prospectus consented to by Agent or by the Company, as the
case may be, is hereinafter referred to as a “Permitted Free Writing
Prospectus.” The Company represents and warrants that it has treated and agrees
that it will treat each Permitted Free Writing Prospectus as an “issuer free
writing prospectus,” as defined in Rule 433, and has complied and will comply
with the requirements of Rule 433 applicable to any Permitted Free Writing
Prospectus, including timely filing with the Commission where required,
legending and record keeping.
24. Absence of Fiduciary Relationship. The Company acknowledges and agrees
that:
(a) the Agent is acting solely as agent in connection with the public offering
of the Placement Shares and in connection with each transaction contemplated by
this Agreement and the process leading to such transactions, and no fiduciary or
advisory relationship between the Company or any of its respective affiliates,
stockholders (or other equity holders), creditors or employees or any other
party, on the one hand, and the Agent, on the other hand, has been or will be
created in respect of any of the transactions contemplated by this Agreement,
irrespective of whether or not the Agent has advised or is advising the Company
on other matters, and the Agent has no obligation to the Company with respect to
the transactions contemplated by this Agreement except the obligations expressly
set forth in this Agreement;
(b) it is capable of evaluating and understanding, and understands and accepts,
the terms, risks and conditions of the transactions contemplated by this
Agreement;
(c) the Agent has not provided any legal, accounting, regulatory or tax advice
with respect to the transactions contemplated by this Agreement and it has
consulted its own legal, accounting, regulatory and tax advisors to the extent
it has deemed appropriate;
(d) it is aware that the Agent and its affiliates are engaged in a broad range
of transactions which may involve interests that differ from those of the
Company and Agent has no obligation to disclose such interests and transactions
to the Company by virtue of any fiduciary, advisory or agency relationship or
otherwise; and
(e) it waives, to the fullest extent permitted by law, any claims it may have
against the Agent for breach of fiduciary duty or alleged breach of fiduciary
duty in connection with the sale of Placement Shares under this Agreement and
agrees that the Agent shall not have any liability (whether direct or indirect,
in contract, tort or otherwise) to it in respect of such a
29
--------------------------------------------------------------------------------
fiduciary duty claim or to any person asserting a fiduciary duty claim on its
behalf or in right of it or the Company, employees or creditors of Company,
other than in respect of the Agent’s obligations under this Agreement and to
keep information provided by the Company to the Agent and its counsel
confidential to the extent not otherwise publicly-available.
25. Definitions.
As used in this Agreement, the following terms have the respective meanings set
forth below:
“Applicable Time” means (i) each Representation Date and (ii) the time of each
sale of any Placement Shares pursuant to this Agreement.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as
defined in Rule 433, relating to the Placement Shares that (1) is required to be
filed with the Commission by the Company, (2) is a “road show” that is a
“written communication” within the meaning of Rule 433(d)(8)(i) whether or not
required to be filed with the Commission, or (3) is exempt from filing pursuant
to Rule 433(d)(5)(i) because it contains a description of the Placement Shares
or of the offering that does not reflect the final terms, in each case in the
form filed or required to be filed with the Commission or, if not required to be
filed, in the form retained in the Company’s records pursuant to Rule 433(g)
under the Securities Act.
“Rule 172,” “Rule 405,” “Rule 415,” “Rule 424,” “Rule 424(b),” “Rule 430B,” and
“Rule 433” refer to such rules under the Securities Act.
All references in this Agreement to financial statements and schedules and other
information that is “contained,” “included” or “stated” in the Registration
Statement or the Prospectus (and all other references of like import) shall be
deemed to mean and include all such financial statements and schedules and other
information that is incorporated by reference in the Registration Statement or
the Prospectus, as the case may be.
All references in this Agreement to the Registration Statement, the Prospectus
or any amendment or supplement to any of the foregoing shall be deemed to
include the copy filed with the Commission pursuant to EDGAR; all references in
this Agreement to any Issuer Free Writing Prospectus (other than any Issuer Free
Writing Prospectuses that, pursuant to Rule 433, are not required to be filed
with the Commission) shall be deemed to include the copy thereof filed with the
Commission pursuant to EDGAR; and all references in this Agreement to
“supplements” to the Prospectus shall include, without limitation, any
supplements, “wrappers” or similar materials prepared in connection with any
offering, sale or private placement of any Placement Shares by Agent outside of
the United States.
[Remainder of the page intentionally left blank]
30
--------------------------------------------------------------------------------
If the foregoing correctly sets forth the understanding between the Company and
Agent, please so indicate in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement between the Company
and Agent.
Very truly yours,
SPARK ENERGY, INC.
By: /s/ Gil Melman
Name: Gil Melman
Title: Vice President, General Counsel and Corporate Secretary
ACCEPTED as of the date first above written
FBR CAPITAL MARKETS & CO.
By: /s/ Patrice McNicoll
Name: Patrice McNicoll
Title: Co-Head of Capital Markets
Signature Page to At-the-Market Issuance Sales Agreement
--------------------------------------------------------------------------------
SCHEDULE 1
FORM OF PLACEMENT NOTICE
From: Spark Energy, Inc.
To: FBR Capital Markets & Co.
Attention: Patrice McNicoll
Subject: At-the-Market Issuance—Placement Notice
Gentlemen:
Pursuant to the terms and subject to the conditions contained in the
At-the-Market Issuance Sales Agreement between Spark Energy, Inc., a Delaware
corporation (the “Company”), and FBR Capital Markets & Co. (“FBR”), dated
July 21, 2017, the Company hereby requests that FBR sell up to shares
of the Company’s 8.75% Series A Fixed-to-Floating Rate Cumulative Redeemable
Perpetual Preferred Stock, par value $0.01 per share, at a minimum market price
of $ per share, during the time period beginning [month, day, time] and
ending [month, day, time].
--------------------------------------------------------------------------------
SCHEDULE 2
COMPENSATION
The Company shall pay to Agent in cash, upon each sale of Placement Shares
pursuant to this Agreement, an amount equal to up to 3.0% of the gross proceeds
from each sale of Placement Shares.
--------------------------------------------------------------------------------
SCHEDULE 3
NOTICE PARTIES
The Company
Nathan Kroeker nkroeker@sparkenergy.com
Robert Lane rlane@sparkenergy.com
Gil Melman gmelman@sparkenergy.com
FBR
Seth Appel sappel@fbr.com
Ryan Loforte rloforte@fbr.com
Patrice McNicoll pmcnicoll@fbr.com
Keith Pompliano kpompliano@fbr.com
With a copy to atmdesk@fbr.com
--------------------------------------------------------------------------------
EXHIBIT 7(1)
Form of Representation Date Certificate
, 20
This Representation Date Certificate (this “Certificate”) is executed and
delivered in connection with Section 7(1) of the At-the-Market Issuance Sales
Agreement (the “Agreement”), dated July 21, 2017, and entered into between Spark
Energy, Inc. (the “Company”) and FBR Capital Markets & Co. (“FBR”). All
capitalized terms used but not defined herein shall have the meanings given to
such terms in the Agreement.
The Company hereby certifies as follows:
1. Each of the representations and warranties of the Company in Section 6 of
the Agreement are true and correct in all material respects as of the date
hereof as if made on and as of the date hereof with the same force and effect as
if expressly made on and as of the date hereof, except for those representations
and warranties that speak solely as of a specific date and which were true and
correct as of such date.
2. The Company has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied pursuant to the Agreement at or prior to
the date hereof.
3. Andrews Kurth Kenyon LLP is entitled to rely on this Certificate in
connection with any written opinion and/or negative assurances such firm is
rendering pursuant to Section 7(m) of the Agreement.
The Company has executed this Representation Date Certificate as of the date
first written above.
SPARK ENERGY, INC.
By:
Name:
Title:
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-5.1
<SEQUENCE>3
<FILENAME>d426803dex51.htm
<DESCRIPTION>EX-5.1
<TEXT>
Exhibit 5.1
[[Image Removed: LOGO]] 600 Travis, Suite 4200
Houston, Texas 77002
+1.713.220.4200 Phone
+1.713.220.4285 Fax
andrewskurthkenyon.com
July 21, 2017
Spark Energy, Inc.
12140 Wickchester Lane, Suite 100
Houston, Texas 77079
Ladies and Gentlemen:
We have acted as special counsel to Spark Energy, Inc., a Delaware Corporation
(the “Issuer”), in connection with the offering and sale, from time to time, of
the Issuer’s 8.75% Series A Fixed-to-Floating Rate Cumulative Redeemable
Perpetual Preferred Stock, par value $0.01 per share (the “Series A Preferred
Stock”) having an aggregate offering price of up to $50,000,000 (the “Preferred
Shares”) on terms to be determined at the time of the offering and sale thereof.
The Preferred Shares are included in a registration statement on Form S-3 under
the Securities Act of 1933, as amended (the “Securities Act”), filed with the
Securities and Exchange Commission (the “SEC”) on October 7, 2016 (Registration
No. 333-214023) and declared effective by the SEC on October 20, 2016 (the
“Registration Statement”). A prospectus supplement dated July 21, 2017, which
together with the prospectus filed with the Registration Statement shall
constitute the “Prospectus” is being filed on the date hereof pursuant to Rule
424(b) promulgated under the Securities Act.
This opinion is being furnished in accordance with the requirements of Item
601(b)(5) of Regulation S-K under the Securities Act.
In rendering the opinions set forth herein, we have read and examined and relied
on originals or copies, certified or otherwise identified to our satisfaction,
of (i) the Amended and Restated Certificate of Incorporation of the Issuer on
file with Secretary of State of the State of Delaware, including the Certificate
of Designations of Rights and Preferences relating to the Series A Preferred
Stock, (ii) the Amended and Restated Bylaws of the Issuer, as certified to us by
an officer of the Issuer, (iii) the At-the-Market Issuance Sales Agreement dated
July 21, 2017, between the Issuer and FBR Capital Markets & Co., relating to the
offer and sale of the Preferred Shares (the “Sales Agreement), and (iv) such
other documents, certificates and records as we have deemed necessary or
appropriate as a basis for the opinions set forth herein. In our examination, we
have assumed, without independent investigation (a) the genuineness of the
signatures on all documents that we have examined, (b) the legal capacity of all
natural persons, (c) the authenticity of all documents supplied to us as
originals, (d) the conformity to the authentic originals of all documents
supplied to us as certified, photostatic or faxed copies and (e) the
authenticity of the originals of such latter documents. We have also assumed
that all Preferred Shares will be issued and sold in the manner described in the
Prospectus and in accordance with the terms of the Sales Agreement.
ANDREWS KURTH KENYON LLP
Austin Beijing Dallas Dubai Houston London NewYork Research Triangle
Park Silicon Valley The Woodlands Washington, DC
--------------------------------------------------------------------------------
Our opinions expressed herein are limited to the General Corporation Law of the
State of Delaware, and we express no opinion as to the laws of any other
jurisdiction.
Based upon the foregoing and subject to the limitations, qualifications,
exceptions and assumptions set forth herein, we are of the opinion that, with
respect to the Preferred Shares, when (a) the Issuer has taken all necessary
action (pursuant to action by the pricing committee of the board of directors of
the Issuer) to authorize and approve the issuance by the Issuer of such
Preferred Shares, the terms of the offering thereof and related matters and
(b) such Preferred Shares have been issued and delivered against payment
therefor in accordance with the terms of the Sales Agreement, such Preferred
Shares will be validly issued, fully paid and non-assessable.
We consent to the filing by you of this opinion as an exhibit to the Issuer’s
Current Report on Form 8-K filed on the date hereof, and we further consent to
the use of our name under the caption “Legal Matters” in the Prospectus
Supplement. In giving this consent, we do not thereby admit that we are included
in the category of persons whose consent is required under Section 7 of the
Securities Act or the rules and regulations of the SEC. This opinion is
expressed as of the date hereof, and we disclaim any undertaking to advise you
of any subsequent changes in the facts stated or assumed herein or of any
subsequent changes in law.
Very truly yours,
/s/ Andrews Kurth Kenyon LLP
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-8.1
<SEQUENCE>4
<FILENAME>d426803dex81.htm
<DESCRIPTION>EX-8.1
<TEXT>
Exhibit 8.1
[[Image Removed: LOGO]] 1717 Main Street, Suite 3700
Dallas, Texas 75201
+1.214.659.4400 Phone
+1.214.659.4401 Fax
andrewskurthkenyon.com
July 21, 2017
Spark Energy, Inc.
12140 Wickchester Lane, Suite 100
Houston, Texas 77079
Ladies and Gentlemen:
We have acted as special counsel to Spark Energy, Inc., a Delaware Corporation
(the “Issuer”), in connection with the offering and sale, from time to time, of
the Issuer’s 8.75% Series A Fixed-to-Floating Rate Cumulative Redeemable
Perpetual Preferred Stock, par value $0.01 per share (the “Series A Preferred
Stock”) having an aggregate offering price of up to $50,000,000 (the “Preferred
Shares”) on terms to be determined at the time of the offering and sale thereof.
The Preferred Shares are included in a registration statement on Form S-3 under
the Securities Act of 1933, as amended (the “Securities Act”), filed with the
Securities and Exchange Commission (the “SEC”) on October 7, 2016 (Registration
No. 333-214023) and declared effective by the SEC on October 20, 2016 (the
“Registration Statement”). A prospectus supplement dated July 21, 2017, which
together with the prospectus filed with the Registration Statement shall
constitute the “Prospectus” is being filed on the date hereof pursuant to
Rule 424(b) promulgated under the Securities Act.
In rendering the opinion set forth herein, we have read and examined and relied
on originals or copies, certified or otherwise identified to our satisfaction,
of (i) the Amended and Restated Certificate of Incorporation of the Issuer on
file with Secretary of State of the State of Delaware, including the Certificate
of Designations of Rights and Preferences relating to the Series A Preferred
Stock, (ii) the Amended and Restated Bylaws of the Issuer, as certified to us by
an officer of the Issuer, (iii) the At-the-Market Issuance Sales Agreement dated
July 21, 2017, between the Issuer and FBR Capital Markets & Co., relating to the
offer and sale of the Preferred Shares (the “Sales Agreement), and (iv) such
other documents, certificates and records as we have deemed necessary or
appropriate as a basis for the opinion set forth herein. In our examination, we
have assumed (i) the authenticity and completeness of all original documents
reviewed by us in original or copy form, (ii) the conformity to the original
documents of all documents reviewed by us as copies, including electronic copies
and conformed copies, (iii) the due authorization, legal capacity, execution and
delivery on behalf of the respective parties thereto of all documents referred
to herein and the legal, valid and binding effect thereof on such parties,
(iv) the genuineness of all signatures on documents examined by us, (v) the
truth, accuracy and completeness of the information, factual matters,
representations and warranties
ANDREWS KURTH KENYON LLP
Austin Beijing Dallas Dubai Houston London New York
Research Triangle Park Silicon Valley The Woodlands Washington, DC
--------------------------------------------------------------------------------
contained in the records, documents, instruments and certificates we have
reviewed and (vi) each unexecuted document submitted to us for our review will
be executed in a form materially identical to the form we reviewed. We have also
assumed that all Preferred Shares will be issued and sold in the manner
described in the Prospectus and in accordance with the terms of the Sales
Agreement.
Based upon the foregoing and subject to the limitations, qualifications,
exceptions and assumptions set forth herein and the discussion in the Prospectus
under the caption, “Material U.S. Federal Income Tax Considerations,” we are of
the opinion that the descriptions of the law and the legal conclusions contained
in the Prospectus under the caption “Material U.S. Federal Income Tax
Considerations” are correct in all material respects.
The foregoing opinion is limited to the United States federal income tax matters
addressed herein, and no other opinions are rendered with respect to other
United States federal tax matters or to any issues arising under the tax laws of
any other country, or any state or locality. The foregoing opinion is based on
current provisions of the Code and the Treasury regulations thereunder,
published administrative interpretations thereof, and published court decisions,
all of which are subject to change and new interpretation, both prospectively
and retroactively. Although the conclusions set forth herein represent our best
judgment as to the probable outcome on the merits of such matters, the Internal
Revenue Service and the courts are not bound by, and may disagree with, the
conclusions set forth herein. If any one of the statements, representations,
warranties or assumptions that we have relied upon to issue this opinion is
incorrect in a material respect, our opinion might be adversely affected and may
not be relied upon.
We consent to the filing by you of this opinion as an exhibit to the Issuer’s
Current Report on Form 8-K filed on the date hereof, and we further consent to
the use of our name under the caption “Legal Matters” in the Prospectus
Supplement. In giving this consent, we do not thereby admit that we are included
in the category of persons whose consent is required under Section 7 of the
Securities Act or the rules and regulations of the SEC. This opinion is
expressed as of the date hereof, and we disclaim any undertaking to advise you
of any subsequent changes in the facts stated or assumed herein or of any
subsequent changes in law.
Very truly yours,
/s/ Andrews Kurth Kenyon LLP
</TEXT>
</DOCUMENT>
</SUBMISSION>