Exhibit (h)(1)
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CALAMOS GLOBAL DYNAMIC INCOME FUND
__________ Common Shares of Beneficial Interest
$15.00 per Share
UNDERWRITING AGREEMENT
Dated: June 26, 2007
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TABLE OF CONTENTS
Page
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SECTION 1. Representations and Warranties .............................. 3
SECTION 2. Sale and Delivery to Underwriters; Closing .................. 12
SECTION 3. Covenants of the Fund and the Adviser ....................... 14
SECTION 4. Payment of Expenses ......................................... 16
SECTION 5. Conditions of Underwriters' Obligations ..................... 17
SECTION 6. Indemnification ............................................. 20
SECTION 7. Contribution ................................................ 23
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery .................................................... 24
SECTION 9. Termination of Agreement .................................... 24
SECTION 10. Default by One or More of the Underwriters .................. 25
SECTION 11. Notices...................................................... 25
SECTION 12. Parties...................................................... 26
SECTION 13. GOVERNING LAW ............................................... 26
SECTION 14. Effect of Headings .......................................... 26
SECTION 15. Definitions ................................................. 26
SECTION 16. Absence of Fiduciary Relationship ........................... 28
EXHIBITS
Exhibit A - Initial Securities to be Sold
Exhibit B - Form of Opinion of Fund Counsel
Exhibit C - Form of Opinion of Adviser Counsel
Exhibit D - Form of Opinion of Delaware Counsel
Exhibit E - Price-Related Information
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CALAMOS GLOBAL DYNAMIC INCOME FUND
________ Common Shares of Beneficial Interest
UNDERWRITING AGREEMENT
June 26, 2007
Wachovia Capital Markets, LLC
Citigroup Global Markets Inc.
Xxxxxx X. Xxxxx & Co. Incorporated
Xxxxxxx, Xxxxxx & Co.
Xxxxxx, Xxxxx Xxxxx, Incorporated
H&R Block Financial Advisors, Inc.
Xxxxxx Xxxxxxxxxx Xxxxx LLC
RBC Capital Markets Corporation
Xxxx Xxxx & Co., Inc.
Southwest Securities, Inc.
Xxxxxx, Xxxxxxxx & Company, Incorporated
Wedbush Xxxxxx Securities Inc.
Xxxxx Fargo Securities, LLC
As Representatives of the several Underwriters
listed on Exhibit A hereto
x/x Xxxxxxxx Xxxxxxx Xxxxxxx, LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Calamos Global Dynamic Income Fund, a Delaware statutory trust (the
"Fund"), and Calamos Advisors LLC, a Delaware limited liability company (the
"Adviser"), confirm their respective agreements with Wachovia Capital Markets,
LLC ("Wachovia") and each of the other Underwriters named in Exhibit A hereto
(collectively, the "Underwriters," which term shall also include any underwriter
substituted as hereinafter provided in Section 10 hereof), for whom Wachovia and
Citigroup Global Markets Inc. are acting as representatives (in such capacity,
the "Representatives"), with respect to the issue and sale by the Fund of a
total of __________ common shares of beneficial interest, no par value per share
(the "Initial Securities"), and the purchase by the Underwriters, acting
severally and not jointly, of the respective numbers of Initial Securities set
forth in said Exhibit A hereto, and with respect to the grant by the Fund to the
Underwriters, acting severally and not jointly, of the option described in
Section 2(b) hereof to purchase all or any part of ____ additional common shares
of beneficial interest to cover over-allotments, if any. The Initial Securities
to be purchased by the Underwriters and all or any part of the ____ common
shares of beneficial interest subject to the option described in
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Section 2(b) hereof (the "Option Securities") are hereinafter called,
collectively, the "Securities." Certain terms used in this Agreement are defined
in Section 15 hereof.
The Fund understands that the Underwriters propose to make a public
offering of the Securities as soon as the Representatives deem advisable after
this Agreement has been executed and delivered.
The Fund has entered into (i) an Investment Management Agreement with the
Adviser dated as of June 15, 2007, (ii) a Custody Agreement with The Bank of New
York dated as of June 15, 2007, (iii) a Foreign Custody Agreement with The Bank
of New York dated as of June 15, 2007, (iv) a Stock Transfer Agency Agreement
with The Bank of New York dated as of June 15, 2007, (v) an Amended and Restated
Financial Accounting Services Agreement with the Adviser dated December 13,
2004, as effective with respect to the Fund as of June 15, 2007 and (vi) a
Master Services Agreement with State Street Bank and Trust Company dated as of
March 15, 2004, as effective with respect to the Fund as of June 15, 2007 and
such agreements are herein referred to as the "Advisory Agreement," the
"Custodian Agreement", the "Foreign Custody Agreement," the "Transfer Agency
Agreement," the "Accounting Agreement" and the "Administration Agreement,"
respectively. Collectively, the Advisory Agreement, the Custodian Agreement, the
Foreign Custody Agreement, the Transfer Agency Agreement, the Accounting
Agreement and the Administration Agreement are herein referred to as the "Fund
Agreements." The Adviser has entered into a Structuring Fee Agreement with
Wachovia dated as of June 26, 2007 and a Structuring Fee Agreement with
Citigroup Global Markets Inc. dated as of June 26, 2007, and such agreements are
herein referred to as the "Structuring Fee Agreements." In addition, the Fund
has adopted a dividend reinvestment plan pursuant to which holders of common
shares of beneficial interest shall have their dividends automatically
reinvested in additional common shares of beneficial interest of the Fund unless
they elect to receive such dividends in cash, and such plan is herein referred
to as the "Dividend Reinvestment Plan."
The Fund has prepared and filed with the Commission a registration
statement (file numbers 333-142056 and 811-22047) on Form N-2, including a
related preliminary prospectus (including the statement of additional
information incorporated by reference therein), for registration under the 1933
Act and the 1940 Act of the offering and sale of the Securities. The Fund may
have filed one or more amendments thereto, including a related preliminary
prospectus (including the statement of additional information incorporated by
reference therein), each of which has previously been furnished to you.
The Fund will next file with the Commission one of the following: either
(1) prior to the effective date of the registration statement, a further
amendment to the registration statement (including the form of final prospectus
(including the statement of additional information incorporated by reference
therein)) or (2) after the effective date of the registration statement, a final
prospectus (including the statement of additional information incorporated by
reference therein) in accordance with Rules 430A and 497. In the case of clause
(2), the Fund has included or incorporated by reference in the Registration
Statement, as amended at the effective date, all information (other than Rule
430A Information) required by the 1933 Act and the 1940 Act and the Rules and
Regulations to be included in the registration statement and the Prospectus. As
filed, such amendment and form of final prospectus (including the statement of
additional
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information incorporated by reference therein), or such final prospectus
(including the statement of additional information incorporated by reference
therein), shall contain all Rule 430A Information, together with all other such
required information, and, except to the extent the Representatives shall agree
in writing to a modification, shall be in all substantive respects in the form
furnished to you prior to the Applicable Time or, to the extent not completed at
the Applicable Time, shall contain only such specific additional information and
other changes (beyond that contained in the latest preliminary prospectus) as
the Fund has advised you, prior to the Applicable Time, will be included or made
therein.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Fund and the Adviser. The Fund
and the Adviser, jointly and severally, represent and warrant to each
Underwriter as of the date hereof, as of the Applicable Time, as of the Closing
Date referred to in Section 2(c) hereof, and as of each Option Closing Date (if
any) referred to in Section 2(b) hereof, and agree with each Underwriter, as
follows:
(1) Compliance with Registration Requirements. The Securities have
been duly registered under the 1933 Act and the 1940 Act pursuant to the
Registration Statement. Each of the Initial Registration Statement and any
Rule 462(b) Registration Statement has become effective under the 1933 Act
and the 1940 Act, and no stop order suspending the effectiveness of the
Initial Registration Statement or any Rule 462(b) Registration Statement
has been issued under the 1933 Act or the 1940 Act, and no proceedings for
that purpose have been instituted or are pending or, to the knowledge of
the Fund or the Adviser, are contemplated by the Commission, and any
request on the part of the Commission for additional information has been
complied with. The Preliminary Prospectus and the Prospectus complied when
filed with the Commission in all material respects with the requirements of
the 1933 Act, the 1940 Act and the Rules and Regulations. The Preliminary
Prospectus and the Prospectus and any amendments or supplements thereto
delivered to the Underwriters for use in connection with the offering of
the Securities each was identical to the electronically transmitted copy
thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
At the respective times the Initial Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became or become effective and at the Closing Date (and, if any Option
Securities are purchased, at the applicable Option Closing Date), the
Initial Registration Statement, any Rule 462(b) Registration Statement
will, and the 1940 Act Notification when originally filed with the
Commission and any amendments and supplements thereto did or will, comply
in all material respects with the requirements of the 1933 Act, the 1940
Act and the Rules and Regulations and did not and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading. Neither the Prospectus nor any amendments or supplements
thereto, as of its date, at the Closing Date (and, if any Option Securities
are purchased, at the applicable Option Closing Date), and at any time when
a prospectus is required by applicable law to be delivered in connection
with sales of Securities, included
3
or will include an untrue statement of a material fact or omitted or will
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. The Preliminary Prospectus and the information included on
Exhibit E hereto, all considered together (collectively, the "General
Disclosure Package") did not or will not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the Fund makes no
representations or warranties as to the information contained in or omitted
from the Preliminary Prospectus or the Prospectus in reliance upon and in
conformity with information furnished in writing to the Fund by or on
behalf of any Underwriter specifically for inclusion therein, it being
understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in Section 6(b)
hereof.
The Fund's registration statement on Form 8-A under the 1934 Act is
effective.
(2) Independent Accountants. Deloitte & Touche LLP who certified and
audited the financial statements and supporting schedules included in the
Registration Statement and the Prospectus are independent public
accountants as required by the 1933 Act, the 1940 Act and the Rules and
Regulations.
(3) Financial Statements. The financial statements of the Fund
included in the Registration Statement and the Prospectus, together with
the related schedules (if any) and notes, present fairly the financial
position of the Fund at the dates indicated and the results of operations
and cash flows of the Fund for the periods specified; and all such
financial statements have been prepared in conformity with GAAP applied on
a consistent basis throughout the periods involved and comply with all
applicable accounting requirements under the 1933 Act, the 1940 Act and the
Rules and Regulations. The supporting schedules, if any, included in the
Registration Statement present fairly, in accordance with GAAP, the
information required to be stated therein, and the other financial and
statistical information and data included in the Registration Statement,
the Preliminary Prospectus and the Prospectus are accurately derived from
such financial statements and the books and records of the Fund.
(4) No Material Adverse Change in Business. Since the respective dates
as of which information is given in the Preliminary Prospectus and the
Prospectus, except as otherwise stated therein, (A) there has been no Fund
Material Adverse Effect and (B) there have been no transactions entered
into by the Fund which are material with respect to the Fund other than
those in the ordinary course of its business as described in the
Preliminary Prospectus and the Prospectus.
(5) Good Standing of the Fund. The Fund has been duly formed and is
validly existing in good standing as a statutory trust under the laws of
the State of Delaware and has power and authority to own, lease and operate
its properties and to conduct its business as described in the Registration
Statement, the Preliminary Prospectus and the Prospectus and to enter into
and perform its obligations under this
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Agreement and the Fund Agreements; and the Fund is duly qualified to
transact business and is in good standing under the laws of each
jurisdiction which requires qualification.
(6) No Subsidiaries. The Fund has no subsidiaries.
(7) Investment Company Status. The Fund is duly registered under the
1940 Act as a closed-end, diversified management investment company under
the 1940 Act and the Rules and Regulations, and the 1940 Act Notification
has been duly filed with the Commission. The Fund has not received any
notice from the Commission pursuant to Section 8(e) of the 1940 Act with
respect to the 1940 Act Notification or the Registration Statement.
(8) Officers and Trustees. No person is serving or acting as an
officer, trustee or investment adviser of the Fund except in accordance
with the provisions of the 1940 Act and the Rules and Regulations and the
Advisers Act. Except as disclosed in the Registration Statement, the
Preliminary Prospectus and the Prospectus, no trustee of the Fund is (A) an
"interested person" (as defined in the 0000 Xxx) of the Fund or (B) an
"affiliated person" (as defined in the 0000 Xxx) of any Underwriter. For
purposes of this Section 1(a)(8), the Fund and the Adviser shall be
entitled to rely on representations from such officers and trustees.
(9) Capitalization. The authorized, issued and outstanding common
shares of beneficial interest of the Fund are as set forth in the
Preliminary Prospectus and in the Prospectus. All issued and outstanding
common shares of beneficial interest of the Fund have been duly authorized
and validly issued and are fully paid and non-assessable and have been
offered and sold or exchanged by the Fund in compliance with all applicable
laws (including, without limitation, federal and state securities laws);
none of the outstanding common shares of beneficial interest of the Fund
was issued in violation of the preemptive or other similar rights of any
securityholder of the Fund.
(10) Power and Authority. The Fund has full power and authority to
enter into this Agreement and the Fund Agreements; the execution and
delivery of, and the performance by the Fund of its obligations under this
Agreement and the Fund Agreements have been duly and validly authorized by
the Fund; and this Agreement and the Fund Agreements have been duly
executed and delivered by the Fund and constitute the valid and legally
binding agreements of the Fund, enforceable against the Fund in accordance
with their terms, except as rights to indemnity and contribution may be
limited by federal or state securities laws and subject to the
qualification that the enforceability of the Fund's obligations hereunder
and thereunder may be limited by bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance and other laws relating to or affecting
creditors' rights generally and by general equitable principles.
(11) Agreements' Compliance with Law. This Agreement and each of the
Fund Agreements comply in all material respects with all applicable
provisions of the 1940 Act, the 1940 Act Rules and Regulations, the
Advisers Act and the Advisers Act Rules and Regulations.
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(12) Absence of Defaults and Conflicts. The Fund is not (i) in
violation of its Declaration of Trust or bylaws, (ii) in breach or default
in the performance of the terms of any indenture, contract, lease,
mortgage, declaration of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which it is a
party or bound or to which its property is subject or (iii) in violation of
any law, ordinance, administrative or governmental rule or regulation
applicable to the Fund or of any decree of the Commission, the NASD, any
state securities commission, any foreign securities commission, any
national securities exchange, any arbitrator, any court or any other
governmental, regulatory, self-regulatory or administrative agency or any
official having jurisdiction over the Fund, except in the case of (ii) and
(iii) for such breaches, defaults or violations which would not have a Fund
Material Adverse Effect.
(13) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge of
the Fund, threatened, against or affecting the Fund which is required to be
disclosed in the Preliminary Prospectus and Prospectus (other than as
disclosed therein), or that could reasonably be expected to result in a
Fund Material Adverse Effect, or that could reasonably be expected to
materially and adversely affect the properties or assets of the Fund or the
consummation of the transactions contemplated in this Agreement or the
performance by the Fund of its obligations under this Agreement or the Fund
Agreements; the aggregate of all pending legal or governmental proceedings
to which the Fund is a party or of which any of its property or assets is
the subject which are not described in the Preliminary Prospectus or the
Prospectus or to be filed as an exhibit to the Registration Statement that
are not described or filed as required by the 1933 Act, the 1940 Act or the
Rules and Regulations, including ordinary routine litigation incidental to
the business, could not reasonably be expected to result in a Fund Material
Adverse Effect.
(14) Accuracy of Descriptions and Exhibits. The statements set forth
under the headings "Closed-End Fund Structure," "Certain Provisions of the
Agreement and Declaration of Trust and By-Laws" and "U.S. Federal Income
Tax Matters" in the Preliminary Prospectus and the Prospectus and "U.S.
Federal Income Tax Matters" in the Statement of Additional Information,
insofar as such statements purport to summarize certain provisions of the
1940 Act, the Delaware Statutory Trust Act, the Fund's Declaration of
Trust, U.S. federal income tax law and regulations or legal conclusions
with respect thereto, fairly and accurately summarize such provisions in
all material respects; all descriptions in the Registration Statement, the
Preliminary Prospectus and the Prospectus of any Fund documents are
accurate in all material respects; and there are no franchises, contracts,
indentures, mortgages, deeds of trust, loan or credit agreements, bonds,
notes, debentures, evidences of indebtedness, leases or other instruments
or agreements required to be described or referred to in the Registration
Statement, the Preliminary Prospectus or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described or filed as
required by the 1933 Act, the 1940 Act or the Rules and Regulations which
have not been so described and filed as required.
(15) Absence of Further Requirements. (A) No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or
6
governmental authority or agency, domestic or foreign, and (B) no
authorization, approval, vote or other consent of any other person or
entity, is necessary or required for the performance by the Fund of its
obligations under this Agreement or the Fund Agreements, for the offering,
issuance, sale or delivery of the Securities hereunder, or for the
consummation of any of the other transactions contemplated by this
Agreement or the Fund Agreements, in each case on the terms contemplated by
the Registration Statement, the Preliminary Prospectus and the Prospectus,
except such as have been already obtained and under the 1933 Act, the 1940
Act, the Rules and Regulations, the rules and regulations of the NASD and
the NYSE and such as may be required under state securities laws.
(16) Non-Contravention. Neither the execution, delivery or performance
of this Agreement and the Fund Agreements nor the consummation by the Fund
of the transactions herein or therein contemplated (i) conflicts or will
conflict with or constitutes or will constitute a breach of the Declaration
of Trust or bylaws of the Fund, (ii) conflicts or will conflict with or
constitutes or will constitute a breach of or a default under, any
agreement, indenture, lease or other instrument to which the Fund is a
party or by which it or any of its properties may be bound or (iii)
violates or will violate any statute, law, regulation or filing or
judgment, injunction, order or decree applicable to the Fund or any of its
properties or will result in the creation or imposition of any lien, charge
or encumbrance upon any property or assets of the Fund pursuant to the
terms of any agreement or instrument to which the Fund is a party or by
which the Fund may be bound or to which any of the property or assets of
the Fund is subject.
(17) Possession of Licenses and Permits. The Fund has such licenses,
permits, and authorizations of governmental or regulatory authorities
("permits") as are necessary to own its property and to conduct its
business in the manner described in the Preliminary Prospectus and the
Prospectus; the Fund has fulfilled and performed all its material
obligations with respect to such permits and no event has occurred which
allows or, after notice or lapse of time, would allow, revocation or
termination thereof or results in any other material impairment of the
rights of the Fund under any such permit, subject in each case to such
qualification as may be set forth in the Preliminary Prospectus and the
Prospectus; and, except as described in the Preliminary Prospectus and the
Prospectus, none of such permits contains any restriction that is
materially burdensome to the Fund.
(18) Distribution of Offering Material. The Fund has not distributed
and, prior to the later to occur of (i) the Closing Date and (ii)
completion of the distribution of the Securities, will not distribute any
offering material in connection with the offering and sale of the
Securities other than the Registration Statement, the Preliminary
Prospectus, the Prospectus, the sales material or other materials permitted
by the Act, the 1940 Act or the Rules and Regulations.
(19) Absence of Registration Rights. There are no persons with
registration rights or other similar rights to have any securities (debt or
equity) (A) registered pursuant to the Registration Statement or included
in the offering contemplated by this Agreement or (B) otherwise registered
by the Fund under the 1933 Act or the 1940 Act. There are no persons with
tag-along rights or other similar rights to have any securities
7
(debt or equity) included in the offering contemplated by this Agreement or
sold in connection with the sale of Securities by the Fund pursuant to this
Agreement.
(20) NYSE. The Securities are duly listed and admitted and authorized
for trading, subject to official notice of issuance and evidence of
satisfactory distribution, on the NYSE.
(21) NASD Matters. All of the information provided to the Underwriters
or to counsel for the Underwriters by the Fund, its officers and Trustees
in connection with letters, filings or other supplemental information
provided to NASD Regulation Inc. pursuant to the NASD's conduct rules is
true, complete and correct.
(22) Tax Returns. The Fund has filed all tax returns that are required
to be filed and has paid all taxes required to be paid by it and any other
assessment, fine or penalty levied against it, to the extent that any of
the foregoing is due and payable, except for any such tax, assessment, fine
or penalty that is currently being contested in good faith by appropriate
actions and except for such taxes, assessments, fines or penalties the
nonpayment of which would not, individually or in the aggregate, have a
Fund Material Adverse Effect.
(23) Subchapter M. The Fund intends to comply with the requirements of
Subchapter M of the Internal Revenue Code of 1986, as amended (the "Code")
to qualify as a regulated investment company under the Code and intends to
direct the investment of the net proceeds of the offering of the Securities
in such a manner as to comply with the requirements of Subchapter M of the
Code.
(24) Insurance. The Fund's trustees and officers/errors and omissions
insurance policy and its fidelity bond required by Rule 17g-1 of the 1940
Act Rules and Regulations are in full force and effect; the Fund is in
compliance with the terms of such policy and fidelity bond in all material
respects; and there are no claims by the Fund under any such policy or
fidelity bond as to which any insurance company is denying liability or
defending under a reservation of rights clause; the Fund has not been
refused any insurance coverage sought or applied for; and the Fund has no
reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage
from similar insurers as may be necessary to continue its business at a
cost that would not have a Fund Material Adverse Effect, except as set
forth in or contemplated in the Preliminary Prospectus and Prospectus
(exclusive of any supplement thereto).
(25) Accounting Controls and Disclosure Controls. The Fund maintains a
system of internal accounting controls sufficient to provide reasonable
assurances that (A) transactions are executed in accordance with
management's general or specific authorizations and with the investment
objectives, policies and restrictions of the Fund and the applicable
requirements of the 1940 Act, the 1940 Act Rules and Regulations and the
Code; (B) transactions are recorded as necessary to permit preparation of
financial statements in conformity with GAAP and to maintain asset
accountability to calculate net asset value and to maintain material
compliance with the books and records requirements
8
under the 1940 Act and the 1940 Act Rules and Regulations; (C) access to
assets is permitted only in accordance with management's general or
specific authorization; and (D) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences. The Fund employs
"disclosure controls and procedures" (as such term is defined in Rule 30a-3
under the 1940 Act); such disclosure controls and procedures are currently
in effect.
(26) Compliance with the Xxxxxxxx-Xxxxx Act. There is and has been no
failure on the part of the Fund or any of the Fund's trustees or officers,
in their capacities as such, to comply with any provision of the
Xxxxxxxx-Xxxxx Act and the rules and regulations promulgated in connection
therewith, including Sections 302 and 906 related to certifications.
(27) Fund Compliance with Policies and Procedures. The Fund has
adopted and implemented written policies and procedures reasonably designed
to prevent violation of the Federal Securities Laws (as that term is
defined in Rule 38a-1 under the 0000 Xxx) by the Fund, including policies
and procedures that provide oversight of compliance for each investment
adviser, administrator and transfer agent of the Fund.
(28) Absence of Manipulation. The Fund has not taken and will not
take, directly or indirectly, any action designed to or that would
constitute or that might reasonably be expected to cause or result in the
stabilization or manipulation of the price of any security to facilitate
the sale or resale of the Securities, and the Fund is not aware of any such
action taken or to be taken by any affiliates of the Fund, other than such
actions as taken by the Underwriters that are affiliates of the Fund, so
long as such actions are in compliance with all applicable law.
(29) Statistical, Demographic or Market-Related Data. Any statistical,
demographic or market-related data included in the Registration Statement,
the Preliminary Prospectus or the Prospectus is based on or derived from
sources that the Fund believes to be reliable and accurate and all such
data included in the Registration Statement, the Preliminary Prospectus or
the Prospectus accurately reflects the materials upon which it is based or
from which it was derived.
(30) Advertisements. All advertising, sales literature or other
promotional material (including "prospectus wrappers", "broker kits", "road
show slides" and "road show scripts"), whether in printed or electronic
form, authorized in writing by or prepared by or at the direction of the
Fund or the Adviser for use in connection with the offering and sale of the
Securities (collectively, "sales material") complied and comply in all
material respects with the applicable requirements of the 1933 Act, the
1933 Act Rules and Regulations and the rules and interpretations of the
NASD and if required to be filed with the NASD under the NASD's conduct
rules were provided to Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the
Underwriters, for filing. No sales material contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
9
(b) Representations and Warranties by the Adviser. The Adviser represents
and warrants to each Underwriter as of the date hereof, as of the Applicable
Time, as of the Closing Date and as of each Option Closing Date (if any), and
agrees with each Underwriter, as follows:
(1) Investment Manager Status. The Adviser is duly registered as an
investment adviser under the Advisers Act and it not prohibited by the
Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the
1940 Act Rules and Regulations from acting under the Advisory Agreement,
the Accounting Agreement or the Structuring Fee Agreements as contemplated
by the Preliminary Prospectus and the Prospectus.
(2) Capitalization. The Adviser has the financial resources available
to it necessary for the performance of its services and obligations as
contemplated in the Preliminary Prospectus and the Prospectus and under
this Agreement and the Advisory Agreement, the Accounting Agreement and the
Structuring Fee Agreements.
(3) No Material Adverse Change in Business. Since the respective dates
as of which information is given in the Preliminary Prospectus and the
Prospectus, except as otherwise stated therein, (A) there has been no
Adviser Material Adverse Effect and (B) there have been no transactions
entered into by the Adviser which are material with respect to the Adviser
other than those in the ordinary course of its business as described in the
Preliminary Prospectus and the Prospectus.
(4) Good Standing. The Adviser has been duly formed and is validly
existing in good standing as a limited liability company under the laws of
the State of Delaware and has power and authority to own, lease and operate
its properties and to conduct its business as described in the Registration
Statement, the Preliminary Prospectus and the Prospectus and to enter into
and perform its obligations under this Agreement, the Fund Agreements to
which it is a party, and the Structuring Fee Agreements; and the Adviser is
duly qualified to transact business and is in good standing under the laws
of each jurisdiction which requires qualification.
(5) Power and Authority. The Adviser has full power and authority to
enter into this Agreement, the Advisory Agreement, the Accounting Agreement
and the Structuring Fee Agreements; the execution and delivery of, and the
performance by the Adviser of its obligations under this Agreement, the
Advisory Agreement, the Accounting Agreement and the Structuring Fee
Agreements have been duly and validly authorized by the Adviser; and this
Agreement, the Advisory Agreement, the Accounting Agreement and the
Structuring Fee Agreements have been duly executed and delivered by the
Adviser and constitute the valid and legally binding agreements of the
Adviser, enforceable against the Adviser in accordance with their terms,
except as rights to indemnity and contribution may be limited by federal or
state securities laws and subject to the qualification that the
enforceability of the Adviser's obligations hereunder and thereunder may be
limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance and other laws relating to or affecting creditors' rights
generally and by general equitable principles.
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(6) Description of the Adviser. The description of the Adviser and its
business and the statements attributable to the Adviser in the Preliminary
Prospectus and Prospectus complied and comply in all material respects with
the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the 1940
Act Rules and Regulations and the Advisers Act Rules and Regulations and
did not and will not contain an 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.
(7) Non-Contravention. Neither the execution, delivery or performance
of this Agreement, the Advisory Agreement, the Accounting Agreement or the
Structuring Fee Agreements nor the consummation by the Fund or the Adviser
of the transactions herein or therein contemplated (i) conflicts or will
conflict with or constitutes or will constitute a breach of the
Organizational Documents of the Adviser, (ii) conflicts or will conflict
with or constitutes or will constitute a breach of or a default under, any
agreement, indenture, lease or other instrument to which the Adviser is a
party or by which it or any of its properties may be bound or (iii)
violates or will violate any statute, law, regulation or filing or
judgment, injunction, order or decree applicable to the Adviser or any of
its properties or will result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Adviser pursuant
to the terms of any agreement or instrument to which the Adviser is a party
or by which the Adviser may be bound or to which any of the property or
assets of the Adviser is subject.
(8) Agreements' Compliance with Laws. This Agreement, the Advisory
Agreement, the Accounting Agreement and the Structuring Fee Agreements
comply in all material respects with all applicable provisions of the 1940
Act, the 1940 Act Rules and Regulations, the Advisers Act, and the Advisers
Act Rules and Regulations.
(9) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge of
the Adviser, threatened, against or affecting the Adviser which is required
to be disclosed in the Preliminary Prospectus and Prospectus (other than as
disclosed therein), or that could reasonably be expected to result in an
Adviser Material Adverse Effect, or that could reasonably be expected to
materially and adversely affect the properties or assets thereof or the
consummation of the transactions contemplated in this Agreement or the
performance by the Adviser of its obligations under this Agreement, the
Advisory Agreement, the Accounting Agreement or the Structuring Fee
Agreements; the aggregate of all pending legal or governmental proceedings
to which the Adviser is a party or of which any of its property or assets
is the subject which are not described in the Preliminary Prospectus or the
Prospectus, including ordinary routine litigation incidental to the
business, could not reasonably be expected to result in an Adviser Material
Adverse Effect.
(10) Absence of Further Requirements. (A) No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency,
domestic or foreign, and (B) no authorization, approval, vote or other
consent of any other person or entity, is necessary or required for the
performance by the Adviser of its obligations under this Agreement, the
Advisory
11
Agreement, the Accounting Agreement or the Structuring Fee Agreements,
except such as have been already obtained under the 1933 Act, the 1940 Act,
the Rules and Regulations, the rules and regulations of the NASD and the
NYSE and such as may be required under state securities laws.
(11) Possession of Permits. The Adviser has such licenses, permits and
authorizations of governmental or regulatory authorities ("permits") as are
necessary to own its property and to conduct its business in the manner
described in the Preliminary Prospectus and the Prospectus; the Adviser has
fulfilled and performed all its material obligations with respect to such
permits and no event has occurred which allows, or after notice or lapse of
time would allow, revocation or termination thereof or results in any other
material impairment of the rights of the Adviser under any such permit.
(12) Adviser Compliance with Policies and Procedures. The Adviser has
adopted and implemented written policies and procedures under Rule 206(4)-7
of the Advisers Act reasonably designed to prevent violation of the
Advisers Act and the Advisers Act Rules by the Adviser and its supervised
persons.
(13) Absence of Manipulation. The Adviser has not taken and will not
take, directly or indirectly, any action designed to or that would
constitute or that might reasonably be expected to cause or result in the
stabilization or manipulation of the price of any security to facilitate
the sale or resale of the Securities, and the Adviser is not aware of any
such action taken or to be taken by any affiliates of the Adviser, other
than such actions as taken by the Underwriters that are affiliates of the
Adviser, so long as such actions are in compliance with all applicable law.
(c) Certificates. Any certificate signed by any officer of the Fund or the
Adviser and delivered to the Representatives or to counsel for the Underwriters
shall be deemed a representation and warranty by the Fund or the Adviser, as the
case may be, to each Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Initial Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Fund agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Fund, at a
purchase price of $_____ per share, the amount of the Initial Securities set
forth opposite such Underwriter's name in Exhibit A hereto. The Fund is advised
that the Underwriters intend to (i) make a public offering of their respective
portions of the Securities as soon after the Applicable Time as is advisable and
(ii) initially to offer the Securities upon the terms set forth in the
Preliminary Prospectus and the Prospectus.
(b) Option Securities. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the Fund hereby grants
an option to the several Underwriters to purchase, severally and not jointly, up
to _____ Option Securities at the same purchase price per share as the
Underwriters shall pay for the Initial Securities. Said option may be exercised
only to cover over-allotments in the sale of the Initial Securities by the
12
Underwriters. Said option may be exercised in whole or in part at any time and
from time to time on or before the 45th day after the date of the Prospectus
upon written or telegraphic notice by the Representatives to the Fund setting
forth the number of shares of the Option Securities as to which the several
Underwriters are exercising the option and the settlement date. The number of
Option Securities to be purchased by each Underwriter shall be the same
percentage of the total number of shares of the Option Securities to be
purchased by the several Underwriters as such Underwriter is purchasing of the
Initial Securities, subject to such adjustments as you in your absolute
discretion shall make to eliminate any fractional shares. Any such time and date
of delivery (an "Option Closing Date") shall be determined by the
Representatives, but shall not be later than seven full business days after the
exercise of said option, nor in any event prior to the Closing Date, as
hereinafter defined.
(c) Payment. Payment of the purchase price for the Initial Securities, and
delivery of the related closing certificates therefor, shall be made at the
offices of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, or at such other place as shall be
agreed upon by the Representatives and the Fund, at 10:00 A.M. (Eastern time) on
June 29, 2007 (unless postponed in accordance with the provisions of Section
10), or such other time not later than ten business days after such date as
shall be agreed upon by the Representatives and the Fund (such time and date of
payment and delivery being herein called "Closing Date").
In addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates for, such Option Securities shall be made at the above-mentioned
offices, or at such other place as shall be agreed upon by the Representatives
and the Fund, on each Option Closing Date as specified in the notice from the
Representatives to the Fund.
Delivery of the Securities shall be made to the Representatives for the
respective accounts of the several Underwriters against payment by the several
Underwriters through the Representatives of the purchase price thereof to or
upon the order of the Fund by Federal Funds wire transfer payable in same-day
funds to an account specified by the Fund. Delivery of the Initial Securities
and the Option Securities shall be made through the facilities of The Depository
Trust Company unless the Representatives shall otherwise instruct. Wachovia,
individually and not as Representative of the Underwriters, may (but shall not
be obligated to) make payment of the purchase price for the Initial Securities
or the Option Securities, if any, to be purchased by any Underwriter whose funds
have not been received by the Closing Date or the relevant Option Closing Date,
as the case may be, but such payment shall not relieve such Underwriter from its
obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial Securities
and the Option Securities, if any, shall be in such denominations and registered
in such names as the Representatives may request in writing at least one full
business day before the Closing Date or the relevant Option Closing Date, as the
case may be. The certificates for the Initial Securities and the Option
Securities, if any, will be made available for examination and packaging by the
Representatives in The City of New York not later than noon (Eastern Time) on
the business day prior to the Closing Date or the relevant Option Closing Date,
as the case may be.
13
SECTION 3. Covenants of the Fund and the Adviser. The Fund and the Adviser,
jointly and severally, covenant with each Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Fund, subject to Section 3(a)(ii), will comply with the requirements of Rule
430A and will notify the Representatives immediately, and confirm the notice in
writing, (i) when any post-effective amendment to the Registration Statement
shall become effective, or any supplement to the Prospectus or any amended
Prospectus shall have been filed, (ii) of the receipt of any comments from the
Commission, (iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for any of
such purposes, or of any examination pursuant to Section 8(e) of the 1940 Act
concerning the Registration Statement and (v) if the Fund becomes the subject of
a proceeding under Section 8A of the 1933 Act in connection with the offering of
the Securities. The Fund will use its best efforts in connection with the
offering of the Securities to prevent the issuance of any stop order or the
suspension of any such qualification and, if issued, to obtain as soon as
possible the withdrawal thereof.
(b) Filing of Amendments. The Fund will give the Representatives notice of
its intention to file or prepare any amendment to the Registration Statement
(including any filing under Rule 462(b)) or any amendment, supplement or
revision to either the prospectus included in the Registration Statement at the
time it became effective or to the Prospectus, whether pursuant to the 1933 Act
or otherwise, or will furnish the Representatives with copies of any such
documents within a reasonable amount of time prior to such proposed filing or
use, as the case may be, and will not file or use any such document to which the
Representatives or counsel for the Underwriters shall object.
(c) Delivery of Registration Statements. The Fund has furnished or will
deliver to the Representatives and counsel for the Underwriters, without charge,
signed copies of the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith) and signed copies of all
consents and certificates of experts. The copies of the Registration Statement
and each amendment thereto furnished to the Underwriters will be identical to
the electronically transmitted copies thereof filed with the Commission pursuant
to XXXXX, except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Fund has delivered to each Underwriter,
without charge, as many copies of each preliminary prospectus prepared prior to
the date of this Agreement as such Underwriter reasonably requested, and the
Fund hereby consents to the use of such copies for purposes permitted by the
1933 Act. The Fund will furnish to each Underwriter, without charge, such number
of copies of the documents constituting the General Disclosure Package prepared
on or after the date of this Agreement and the Prospectus (and any amendments or
supplements thereto) as such Underwriter may reasonably request. The Preliminary
Prospectus and the Prospectus and any amendments or supplements thereto
furnished to the Underwriters is or will be, as the case may be, identical to
the electronically
14
transmitted copies thereof filed with the Commission pursuant to XXXXX, except
to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Fund will comply with
the 1933 Act, the 1940 Act and the Rules and Regulations so as to permit the
completion of the distribution of the Securities as contemplated in this
Agreement and in the Prospectus. If at any time when a prospectus is required by
the 1933 Act to be delivered in connection with sales of the Securities
(including, without limitation, pursuant to Rule 172), any event shall occur or
condition shall exist as a result of which it is necessary, in the opinion of
counsel for the Underwriters or for the Fund, to amend the Registration
Statement or amend or supplement the Prospectus in order that the Prospectus
will not include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein not misleading
in the light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the opinion of such counsel, at any
such time to amend the Registration Statement or amend or supplement the
Prospectus in order to comply with the requirements of the 1933 Act, the 1940
Act or the Rules and Regulations, the Fund will promptly prepare and file with
the Commission, subject to Section 3(b) hereof, such amendment or supplement as
may be necessary to correct such statement or omission or to make the
Registration Statement or the Prospectus comply with such requirements, and the
Fund will furnish to the Underwriters such number of copies of such amendment or
supplement as the Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Fund will use its best efforts, in
cooperation with the Underwriters, to qualify, if necessary, the Securities for
offering and sale under the applicable securities laws of states of the United
States, the District of Columbia, Guam, Puerto Rico and the U.S. Virgin Islands
as the Representatives may designate and to maintain such qualifications in
effect for a period of not less than one year from the date of this Agreement;
provided, however, that the Fund shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation or as a
dealer in securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject.
(g) Rule 158. The Fund will timely file such reports pursuant to the 1934
Act as are necessary in order to make generally available to its security
holders as soon as practicable an earnings statement for the purposes of, and to
provide to the Underwriters the benefits contemplated by, the last paragraph of
Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The Fund will use the net proceeds received by it from
the sale of the Securities in the manner specified in the Prospectus under "Use
of Proceeds."
(i) Reporting Requirements. The Fund, during the period when the Prospectus
is required to be delivered under the 1933 Act, the 1940 Act or the Rules and
Regulations, will file all documents required to be filed with the Commission
pursuant to the 1933 Act, the 1940 Act or the Rules and Regulations within the
time periods required by the 1934 Act, the 1940 Act or the Rules and
Regulations.
(j) Subchapter M. The Fund will comply with the requirements of Subchapter
M of the Code to qualify as a regulated investment company under the Code.
15
(k) Absence of Manipulation. Except as stated in this Agreement and the
Preliminary Prospectus and Prospectus, the Fund and the Adviser have not taken
and will not take, directly or indirectly, any action designed to or that would
constitute or that might reasonably be expected to cause or result in the
stabilization or manipulation of the price of any security to facilitate the
sale or resale of the Securities, and the Fund and the Adviser are not aware of
any such action taken or to be taken by any affiliates of the Fund or the
Adviser, other than such actions as taken by the Underwriters that are
affiliates of the Fund or the Adviser, so long as such actions are in compliance
with all applicable law.
(l) Restriction on Sale of Securities. The Fund will not, without the prior
written consent of Wachovia, offer, sell, contract to sell, pledge, or otherwise
dispose of, or enter into any transaction which is designed to, or might
reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the Fund or any affiliate of the Fund or any person in privity
with the Fund, directly or indirectly, including the filing (or participation in
the filing) of a registration statement with the Commission in respect of, or
establish or increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the Exchange Act, any
other Securities or any securities convertible into, or exercisable, or
exchangeable for, Securities; or publicly announce an intention to effect any
such transaction for a period of 180 days following the Execution Time,
provided, however, that the Fund may issue and sell Securities pursuant to any
dividend reinvestment plan of the Fund in effect at the Execution Time.
SECTION 4. Payment of Expenses.
(a) Expenses. The Fund will pay all expenses incident to the performance of
its obligations under this Agreement, including (i) the preparation, printing
and filing of the Registration Statement (including financial statements and
exhibits) as originally filed and of each amendment thereto, (ii) the word
processing, printing and delivery to the Underwriters of this Agreement, any
Agreement among Underwriters and such other documents as may be required in
connection with the offering, purchase, sale, issuance or delivery of the
Securities, (iii) the preparation, issuance and delivery of the certificates for
the Securities to the Underwriters, including any stock or other transfer taxes
and any stamp or other duties payable upon the sale, issuance or delivery of the
Securities to the Underwriters, (iv) the fees and disbursements of the counsel,
accountants and other advisors to the Fund, (v) the qualification of the
Securities under securities laws in accordance with the provisions of Section
3(f) hereof, including filing fees and the reasonable fees and disbursements of
counsel for the Underwriters in connection therewith and in connection with the
preparation of the Blue Sky Survey and any supplements thereto, (vi) the
printing and delivery to the Underwriters of copies of each preliminary
prospectus, the documents constituting the General Disclosure Package, the
Prospectus and the 1940 Act Notification, any sales material and any amendments
or supplements thereto, (vii) the preparation, printing and delivery to the
Underwriters of copies of the Blue Sky Survey and any supplements thereto,
(viii) the fees and expenses of the custodian and the transfer agent and
registrar for the Securities, (ix) the filing fees incident to, and the
reasonable fees and disbursements of counsel to the Underwriters in connection
with, the review by the NASD of the terms of the sale of the Securities, (x) the
transportation and other expenses incurred in connection with presentations to
prospective purchasers of the Securities, (xi) the fees
16
and expenses incurred in connection with the listing of the Securities on the
NYSE and (xii) all other costs and expenses incident to the performance by the
Fund of its obligations hereunder. To the extent that the foregoing costs and
expenses incidental to the performance of the obligations of the Fund under this
Agreement exceed $0.03 per share, the Adviser will pay all such costs and
expenses.
(b) Termination of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Fund and the Adviser, jointly and severally, agree that they
shall reimburse the Underwriters for all of their out-of-pocket expenses,
including the reasonable fees and disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of the
Underwriters to purchase the Initial Securities and the Option Securities, as
the case may be, shall be subject to the accuracy of the representations and
warranties on the part of the Fund and the Adviser contained herein as of the
Applicable Time, the Closing Date and any Option Closing Date pursuant to
Section 4 hereof, to the accuracy of the statements of the Fund and the Adviser
made in any certificates pursuant to the provisions hereof, to the performance
by the Fund and the Adviser of their respective covenants and other obligations
hereunder and to the following additional conditions:
(a) Effectiveness of Registration Statement. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective and at
Closing Date (or the applicable Option Closing Date, as the case may be) no stop
order suspending the effectiveness of the Registration Statement shall have been
issued under the 1933 Act or any notice objecting to its use or order pursuant
to Section 8(e) of the 1940 Act shall have been issued and proceedings therefor
initiated or, to the knowledge of the Fund, threatened by the Commission, and
any request on the part of the Commission for additional information shall have
been complied with to the reasonable satisfaction of counsel to the
Underwriters. A prospectus containing the Rule 430A Information shall have been
filed with the Commission in accordance with Rule 497 or a post-effective
amendment providing such information shall have been filed and declared
effective in accordance with the requirements of Rule 430A.
(b) Opinion of Counsel for Fund. At the Closing Date, the Representatives
shall have received the favorable opinion, dated as of the Closing Date, of
Vedder, Price, Xxxxxxx & Kammholz, P.C., counsel for the Fund ("Fund Counsel"),
in form and substance satisfactory to counsel for the Underwriters, together
with signed or reproduced copies of such letter for each of the other
Underwriters, to the effect set forth in Exhibit B hereto and to such further
effect as counsel to the Underwriters may reasonably request. Insofar as the
opinion expressed above relates to or is dependent upon matters governed by
Delaware law, Vedder, Price, Xxxxxxx & Kammholz, P.C. will be permitted to rely
on the opinion of Morris, Nichols, Arsht & Xxxxxxx.
(c) Opinion of Counsel for Underwriters. At Closing Date, the
Representatives shall have received the favorable opinion, dated as of Closing
Date, of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, together
with signed or reproduced copies of such letter for each of the other
Underwriters, in form and substance satisfactory to the Representatives. Insofar
as the opinion expressed above relates to or is dependent upon matters governed
by
17
Delaware law, Xxxxxxx Xxxxxxx & Xxxxxxxx LLP will be permitted to rely on the
opinion of Morris, Nichols, Arsht & Xxxxxxx.
(d) Certificate of the Fund. At the Closing Date or the applicable Option
Closing Date, as the case may be, there shall not have been, since the date
hereof or since the respective dates as of which information is given in the
Prospectus or the General Disclosure Package (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement), any Fund Material
Adverse Effect, and, at the Closing Date, the Representatives shall have
received a certificate of the Chairman, the President, the Chief Executive
Officer or an Executive Vice President or Senior Vice President of the Fund and
of the Chief Financial Officer or Chief Accounting Officer of the Fund, dated as
of the Closing Date, to the effect that (i) there has been no such Fund Material
Adverse Effect, (ii) the representations and warranties of the Fund in this
Agreement are true and correct with the same force and effect as though
expressly made at and as of the Closing Date, (iii) the Fund has complied with
all agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the Closing Date under or pursuant to this Agreement,
and (iv) no stop order suspending the effectiveness of the Registration
Statement or order of suspension or revocation of registration pursuant to
Section 8(e) of the 1940 Act has been issued, and no proceedings for that
purpose have been instituted or are pending or, to their knowledge, are
contemplated by the Commission.
(e) Opinion of Counsel for the Adviser. At the Closing Date, the
Representatives shall have received the favorable opinion, dated as of the
Closing Date, of Vedder, Price, Xxxxxxx & Kammholz, P.C., counsel for the
Adviser, in form and substance satisfactory to counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of the other
Underwriters, to the effect set forth in Exhibit C hereto and to such further
effect as counsel to the Underwriters may reasonably request.
(f) Certificate of the Adviser. At the Closing Date or the applicable
Option Closing Date, as the case may be, there shall not have been, since the
date hereof or since the respective dates as of which information is given in
the Prospectus or the General Disclosure Package (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement), any Adviser
Material Adverse Effect, and, at the Closing Date, the Representatives shall
have received a certificate of the Chairman, the President, the Chief Executive
Officer or an Executive Vice President or Senior Vice President of the Adviser
and of the Chief Financial Officer or Chief Accounting Officer of the Adviser,
dated as of the Closing Date, to the effect that (i) there has been no such
Adviser Material Adverse Effect, (ii) the representations and warranties of the
Adviser in this Agreement are true and correct with the same force and effect as
though expressly made at and as of the Closing Date, (iii) the Adviser has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the Closing Date under or pursuant to this
Agreement, and (iv) no stop order suspending the effectiveness of the
Registration Statement or order of suspension or revocation of registration
pursuant to Section 8(e) of the 1940 Act has been issued and no proceedings for
that purpose have been instituted or are pending or, to their knowledge, are
contemplated by the Commission.
(g) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Representatives shall have received from Deloitte & Touche LLP a
letter, dated the date of this Agreement and in form and substance satisfactory
to the Representatives, together with signed or
18
reproduced copies of such letter for each of the other Underwriters, 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 of the Fund contained in the Registration
Statement or the Prospectus.
(h) Bring-down Comfort Letter. At the Closing Date, the Representatives
shall have received from Deloitte & Touche LLP a letter, dated as of the Closing
Date and in form and substance satisfactory to the Representatives, to the
effect that they reaffirm the statements made in the letter furnished pursuant
to subsection (g) of this Section, except that the specified date referred to
shall be a date not more than three business days prior to the Closing Date.
(i) No Objection. Prior to the date of this Agreement, NASD Regulation Inc.
shall have confirmed that it has no objection with respect to the fairness and
reasonableness of the underwriting terms and arrangements.
(j) Conditions to Purchase of Option Securities. In the event that the
Underwriters exercise their option provided in Section 2(b) hereof to purchase
all or any portion of the Option Securities on any Option Closing Date that is
after the Closing Date, the obligations of the several Underwriters to purchase
the applicable Option Securities shall be subject to the conditions specified in
the introductory paragraph of this Section 5 and to the further condition that,
at the applicable Option Closing Date, the Representatives shall have received:
(1) Officers' Certificate. A certificate, dated such Option
Closing Date, to the effect set forth in, and signed by two of the
officers specified in, Section 5(d) hereof, except that the references
in such certificate to the Closing Date shall be changed to refer to
such Option Closing Date.
(2) Opinion of Counsel for Fund. The favorable opinion of Fund
Counsel in form and substance satisfactory to counsel for the
Underwriters, dated such Option Closing Date, relating to the Option
Securities to be purchased on such Option Closing Date and otherwise
to the same effect as the opinion required by Section 5(b) hereof.
(3) Opinion of Counsel for Underwriters. The favorable opinion of
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, dated
such Option Closing Date, relating to the Option Securities to be
purchased on such Option Closing Date and otherwise to the same effect
as the opinion required by Section 5(c) hereof.
(4) Opinion of Counsel for the Adviser. The favorable opinion of
Vedder, Price, Xxxxxxx & Xxxxxxx, P.C., counsel for the Adviser, dated
such Option Closing Date, relating to the Option Securities to be
purchased on such Option Closing Date and otherwise to the same effect
as the opinion required by Section 5(e) hereof.
(5) Certificate of the Adviser. A certificate, dated such Option
Closing Date, to the effect set forth in, and signed by two of the
officers specified
19
in, Section 5(f) hereof, except that the references in such
certificate to the Closing Date shall be changed to refer to such
Option Closing Date.
(6) Bring-down Comfort Letter. A letter from Deloitte & Touche
LLP, in form and substance satisfactory to the Representatives and
dated such Option Closing Date, substantially in the same form and
substance as the letter furnished to the Representatives pursuant to
Section 5(j) hereof, except that the "specified date" in the letter
furnished pursuant to this paragraph shall be a date not more than
five days prior to such Option Closing Date.
(k) Additional Documents. At the Closing Date and at each Option Closing
Date, counsel for the Underwriters shall have been furnished with such documents
and opinions as they may require for the purpose of enabling them to pass upon
the issuance and sale of the Securities as herein contemplated, or in order to
evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, contained in this Agreement; and all
proceedings taken by the Fund and the Adviser in connection with the issuance
and sale of the Securities as herein contemplated and in connection with the
other transactions contemplated by this Agreement shall be satisfactory in form
and substance to the Representatives and counsel for the Underwriters.
(l) Delivery of Documents. The documents required to be delivered by this
Section 5 shall be delivered at the office of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP,
counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, xx
the Closing Date and at each Option Closing Date.
(m) Termination of Agreement. If any condition specified in this Section 5
shall not have been fulfilled when and as required to be fulfilled, this
Agreement, or, in the case of any condition to the purchase of Option Securities
on an Option Closing Date which is after the Closing Date, the obligations of
the several Underwriters to purchase the relevant Option Securities, may be
terminated by the Representatives by notice to the Fund.
SECTION 6. Indemnification.
(a) Indemnification by the Fund and the Adviser. The Fund and the Adviser,
jointly and severally, agree to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the
statements therein not misleading, or arising out of any untrue statement
or alleged untrue statement of a material fact included in any preliminary
prospectus, any sales material, the Preliminary Prospectus or the
Prospectus (or any amendment or supplement thereto), or the omission or
alleged omission therefrom of a material fact
20
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(e) below) any such settlement is effected with the written consent of the
Fund and the Adviser; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by Wachovia), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under (i) or (ii) above,
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Fund or the
Adviser by any Underwriter through Wachovia expressly for use in the
Registration Statement (or any amendment thereto), or in any preliminary
prospectus, any sales material, the Preliminary Prospectus or the Prospectus (or
any amendment or supplement thereto).
(b) Indemnification by the Underwriters. Each Underwriter severally agrees
to indemnify and hold harmless each of the Fund and the Adviser, each of their
directors, trustees, members, each of their officers who signed the Registration
Statement, and each person, if any, who controls the Fund or the Adviser within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section 6, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto), or any
preliminary prospectus, any sales material, the Preliminary Prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Fund or the Adviser by such
Underwriter through Wachovia expressly for use in the Registration Statement (or
any amendment thereto) or such preliminary prospectus, any sales material, the
Preliminary Prospectus or the Prospectus (or any amendment or supplement
thereto). The Fund and the Adviser acknowledge that the statements set forth (i)
in the last paragraph of the cover page regarding delivery of the Securities,
(ii) under the heading "Underwriting", (iii) the list of Underwriters and their
respective participation in the sale of the Securities, (iv) the sentences
related to concessions and reallowances and (v) the paragraph related to
prospectuses in electronic format in any Preliminary Prospectus and the
Prospectus constitute the only information furnished in writing by or on behalf
of the several Underwriters for inclusion in any Preliminary Prospectus or the
Prospectus.
21
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. Counsel to the indemnified parties shall be selected as follows:
counsel to the Underwriters and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall be selected by Wachovia; counsel to the Fund, its directors,
trustees, members, each of its officers who signed the Registration Statement
and each person, if any, who controls the Fund within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act shall be selected by the Fund; and
counsel to the Adviser and each person, if any, who controls such Adviser within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall be
selected by such Adviser. An indemnifying party may participate at its own
expense in the defense of any such action; provided, however, that counsel to
the indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the
indemnifying parties be liable for the fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
the Underwriters and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, the
fees and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for the Fund, each of their directors, trustees,
members, each of its officers who signed the Registration Statement and each
person, if any, who controls the Fund within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act, the fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
the Adviser, and the fees and expenses of more than one counsel, in each case 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.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 6 or Section 7 hereof (whether or not the indemnified parties
are actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding 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) Settlement Without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
22
(e) Other Agreements with Respect to Indemnification and Contribution. The
provisions of this Section 6 and in Section 7 hereof shall not affect any
agreements among the Fund and the Adviser with respect to indemnification of
each other or contribution between themselves.
SECTION 7. Contribution. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Fund and the
Adviser on the one hand and the Underwriters on the other hand from the offering
of the Securities pursuant to this Agreement or (ii) if the allocation provided
by clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Fund and the Adviser on the one hand
and of the Underwriters on the other hand in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Fund and the Adviser on the one hand
and the Underwriters on the other hand in connection with the offering of the
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Fund and the Adviser and the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth on the cover of the
Prospectus, bear to the aggregate initial public offering price of the
Securities as set forth on such cover.
The relative fault of the Fund and the Adviser on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Fund, by the Adviser or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Fund, the Adviser and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of
23
any damages which such Underwriter has otherwise been required to pay by reason
of any such untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act and each director, trustee, member, officer, employee and agent of
an Underwriter shall have the same rights to contributions as such Underwriters,
and each person who controls the Fund or the Adviser within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act, each officer of the
Fund and the Adviser and each trustee, director or member of the Fund and the
Adviser shall have the same rights to contribution as the Fund and the Adviser.
The Underwriters' respective obligations to contribute pursuant to this Section
7 are several in proportion to the number of Initial Securities set forth
opposite their respective names in Exhibit A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Fund or signed by or on behalf of the Adviser
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Fund, or by or on behalf of the
Adviser, and shall survive delivery of the Securities to the Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representatives may terminate this Agreement,
by notice to the Fund or the Adviser, at any time on or prior to the Closing
Date (and, if any Option Securities are to be purchased on an Option Closing
Date which occurs after the Closing Date, the Representatives may terminate the
obligations of the several Underwriters to purchase such Option Securities, by
notice to the Fund, at any time on or prior to such Option Closing Date) (i) if
there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the Prospectus or the
General Disclosure Package, any Fund Material Adverse Effect or Adviser Material
Adverse Effect, or (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 judgment of the Representatives,
impracticable or inadvisable to market the Securities or to enforce contracts
for the sale of the Securities, or (iii) if trading in any securities of the
Fund has been suspended or materially limited by the Commission or the NYSE, or
if trading generally on the NYSE or in the Nasdaq National Market has been
suspended or materially limited, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices have been required, by any of said
exchanges or by such system or by order of the Commission, the NASD or any other
governmental authority, or a material disruption has occurred in commercial
banking or securities settlement or clearance services in the United States or
(iv) if a banking moratorium has been declared by either Federal or New York
authorities.
24
(b) Liabilities. If this Agreement is terminated pursuant to this Section
9, such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 1, 6,
7 and 8 hereof shall survive such termination and remain in full force and
effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of
the Underwriters shall fail at the Closing Date or an Option Closing Date to
purchase the Securities which it or they are obligated to purchase under this
Agreement (the "Defaulted Securities"), the Representatives shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, the Representatives shall not
have completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the number
of Securities to be purchased on such date, each of the non-defaulting
Underwriters shall be obligated, severally and not jointly, to purchase the full
amount thereof in the proportions that their respective underwriting obligations
hereunder bear to the underwriting obligations of all non-defaulting
Underwriters; or
(b) if the number of Defaulted Securities exceeds 10% of the number of
Securities to be purchased on such date, this Agreement or, with respect to any
Option Closing Date which occurs after the Closing Date, the obligation of the
Underwriters to purchase and of the Fund to sell the Option Securities that were
to have been purchased and sold on such Option Closing Date, shall terminate
without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement or, in the case of an Option Closing Date which is after the
Closing Date, which does not result in a termination of the obligation of the
Underwriters to purchase and the Fund to sell the relevant Option Securities, as
the case may be, the Representatives shall have the right to postpone Closing
Date or the relevant Option Closing Date, as the case may be, for a period not
exceeding seven days in order to effect any required changes in the Registration
Statement or Prospectus or in any other documents or arrangements. As used
herein, the term "Underwriter" includes any person substituted for an
Underwriter under this Section 10.
SECTION 11. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives at Wachovia Capital
Markets, LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Equity
Syndicate; notices to the Fund and the Adviser shall be directed to them at c/o
Calamos Advisors LLC, 0000 Xxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention:
General Counsel (fax no.: (000) 000-0000).
25
SECTION 12. Parties. This Agreement shall inure to the benefit of and be
binding upon the Underwriters, the Fund and the Adviser and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters, the Fund and the Adviser and their respective successors and the
controlling persons and directors, officers, members and trustees referred to in
Sections 6 and 7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the
Underwriters, the Fund and the Adviser and their respective successors, and said
controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation. No
purchaser of Securities from any Underwriter shall be deemed to be a successor
by reason merely of such purchase.
SECTION 13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 14. Effect of Headings. The Section and Exhibit headings herein are
for convenience only and shall not affect the construction hereof.
SECTION 15. Definitions. As used in this Agreement, the following terms
have the respective meanings set forth below:
"Advisers Act" means the Investment Advisers Act of 1940, as amended.
"Advisers Act Rules and Regulations" means the rules and regulations of the
Commission under the Advisers Act.
"Adviser Material Adverse Effect" means a material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Adviser, whether or not arising in the ordinary course
of business.
"Applicable Time" means the date and time that this Agreement is executed
and delivered by the parties hereto.
"Commission" means the Securities and Exchange Commission.
"Declaration of Trust" means the Agreement and Declaration of Trust of
Calamos Global Dynamic Income Fund dated as of March 30, 2007, and any
amendments thereto.
"XXXXX" means the Commission's Electronic Data Gathering, Analysis and
Retrieval System.
"Fund Material Adverse Effect" means a material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Fund, whether or not arising in the ordinary course of
business.
"GAAP" means generally accepted accounting principles.
26
"Initial Registration Statement" means the Fund's registration statement
(File Nos. 333-142056 and 811-22047) on Form N-2 (including the statement of
additional information incorporated by reference therein), as amended (if
applicable), at the time it became effective, including the Rule 430A
Information.
"NASD" means the National Association of Securities Dealers, Inc., or any
successor entity.
"NYSE" means the New York Stock Exchange.
"Organizational Documents" means (a) in the case of a corporation, its
charter and by-laws; (b) in the case of a limited or general partnership, its
partnership certificate, certificate of formation or similar organizational
document and its partnership agreement; (c) in the case of a limited liability
company, its articles of organization, certificate of formation or similar
organizational documents and its operating agreement, limited liability company
agreement, membership agreement or other similar agreement; (d) in the case of a
trust, its certificate of trust, certificate of formation or similar
organizational document and its trust agreement or other similar agreement; and
(e) in the case of any other entity, the organizational and governing documents
of such entity.
"preliminary prospectus" means any prospectus (including the statement of
additional information incorporated by reference therein) used in connection
with the offering of the Securities that was used before the Initial
Registration Statement became effective, or that was used after such
effectiveness and prior to the execution and delivery of this Agreement, or that
omitted the Rule 430A Information or that was captioned "Subject to Completion".
"Preliminary Prospectus" shall mean the preliminary prospectus (including
the statement of additional information incorporated by reference therein) dated
May 25, 2007 and any preliminary prospectus (including the statement of
additional information incorporated by reference therein) included in the
Registration Statement at the Applicable Time that omits Rule 430A Information.
"Prospectus" shall mean the prospectus (including the statement of
additional information incorporated by reference therein) relating to the
Securities that is first filed pursuant to Rule 497 after the Applicable Time.
"Registration Statement" means the Initial Registration Statement; provided
that, if a Rule 462(b) Registration Statement is filed with the Commission, then
the term "Registration Statement" shall also include such Rule 462(b)
Registration Statement.
"Rule 172," "Rule 497," "Rule 430A," "Rule 433" and "Rule 462(b)" refer to
such rules under the 1933 Act.
"Rule 430A Information" means the information included in the Prospectus
that was omitted from the Initial Registration Statement at the time it became
effective but that is deemed to be a part of the Initial Registration Statement
at the time it became effective pursuant to Rule 430A.
27
"Rule 462(b) Registration Statement" means a registration statement filed
by the Fund pursuant to Rule 462(b) for the purpose of registering any of the
Securities under the 1933 Act, including the Rule 430A Information.
"Rules and Regulations" means, collectively, the 1933 Act Rules and
Regulations and the 1940 Act Rules and Regulations.
"Xxxxxxxx-Xxxxx Act" means the Xxxxxxxx-Xxxxx Act of 2002 and the rules and
regulations promulgated thereunder or implementing the provisions thereof.
"1933 Act" means the Securities Act of 1933, as amended.
"1933 Act Rules and Regulations" means the rules and regulations of the
Commission under the 1933 Act.
"1934 Act" means the Securities Exchange Act of 1934, as amended.
"1934 Act Rules and Regulations" means the rules and regulations of the
Commission under the 1934 Act.
"1940 Act" means the Investment Company Act of 1940, as amended.
"1940 Act Notification" means a notification of registration of the Fund as
an investment company under the 1940 Act on Form N-8A, as the 1940 Act
Notification may be amended from time to time.
"1940 Act Rules and Regulations" means the rules and regulations of the
Commission under the 1940 Act.
All references in this Agreement to the Registration Statement, the Initial
Registration Statement, any Rule 462(b) Registration Statement, any preliminary
prospectus, the Preliminary Prospectus, 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 XXXXX.
SECTION 16. Absence of Fiduciary Relationship. Each of the Fund and the
Adviser acknowledges and agrees that:
(a) Each of the Underwriters is acting solely as an underwriter in
connection with the public offering of the Securities and no fiduciary, advisory
or agency relationship between the Fund or the Adviser, on the one hand, and any
of the Underwriters, 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 any of the Underwriters have advised or is advising the Fund or
the Adviser on other matters and none of the Underwriters has any obligation to
the Fund or the Adviser with respect to the transactions contemplated by this
Agreement except the obligations expressly set forth in this Agreement;
28
(b) the public offering price of the Securities and the price to be paid by
the Underwriters for the Securities set forth in this Agreement were established
by the Fund following discussions and arms-length negotiations with the
Representatives;
(c) it is capable of evaluating and understanding, and understands and
accepts, the terms, risks and conditions of the transactions contemplated by
this Agreement;
(d) in connection with each transaction contemplated by this Agreement and
the process leading to such transactions, each Underwriter is and has been
acting solely as principal and not as fiduciary, advisor or agent of the Fund or
the Adviser or any of their respective affiliates;
(e) none of the Underwriters has provided any legal, accounting, regulatory
or tax advice to the Fund or the Adviser with respect to the transactions
contemplated by this Agreement and it has consulted its own legal, accounting,
regulatory and tax advisers to the extent it has deemed appropriate;
(f) it is aware that the Underwriters and their respective affiliates are
engaged in a broad range of transactions which may involve interests that differ
from those of the Fund and the Adviser, and that none of the Underwriters has
any obligation to disclose such interests and transactions to the Fund or the
Adviser by virtue of any fiduciary, advisory or agency relationship; and
(g) it waives, to the fullest extent permitted by law, any claims it may
have against any of the Underwriters for breach of fiduciary duty or alleged
breach of fiduciary duty and agrees that none of the Underwriters shall have any
liability (whether direct or indirect, in contract, tort or otherwise) to it in
respect of such a fiduciary duty claim or to any person asserting a fiduciary
duty claim on its behalf or on behalf of the Fund or the Adviser.
[SIGNATURE PAGE FOLLOWS]
29
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Fund and the Adviser a counterpart
hereof, whereupon this instrument, along with all counterparts, will become a
binding agreement among the Underwriters, the Fund and the Adviser in accordance
with its terms.
Very truly yours,
CALAMOS GLOBAL DYNAMIC INCOME FUND
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
CALAMOS ADVISORS LLC
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
CONFIRMED AND ACCEPTED, as of the
date first above written:
WACHOVIA CAPITAL MARKETS, LLC
CITIGROUP GLOBAL MARKETS INC.
XXXXXX X. XXXXX & CO. INCORPORATED
XXXXXXX, XXXXXX & CO.
XXXXXX, XXXXX XXXXX, INCORPORATED
H&R BLOCK FINANCIAL ADVISORS, INC.
XXXXXX XXXXXXXXXX XXXXX LLC
RBC CAPITAL MARKETS CORPORATION
XXXX XXXX & CO., INC.
SOUTHWEST SECURITIES, INC.
XXXXXX, XXXXXXXX & COMPANY, INCORPORATED
WEDBUSH XXXXXX SECURITIES INC.
XXXXX FARGO SECURITIES, LLC
By: WACHOVIA CAPITAL MARKETS, LLC
By:
---------------------------------
Authorized Signatory
For themselves and as Representatives of the Underwriters named in Exhibit A
hereto.
30
EXHIBIT A
Name of Underwriter Number of Initial Securities
------------------- ----------------------------
Wachovia Capital Markets, LLC..............
Citigroup Global Markets Inc.
Xxxxxx X. Xxxxx & Co. Incorporated
Xxxxxxx, Xxxxxx & Co.
Xxxxxx, Xxxxx Xxxxx, Incorporated
H&R Block Financial Advisors, Inc.
Xxxxxx Xxxxxxxxxx Xxxxx LLC
RBC Capital Markets Corporation
Xxxx Xxxx & Co., Inc.
Southwest Securities, Inc.
Xxxxxx, Xxxxxxxx & Company, Incorporated
Wedbush Xxxxxx Securities Inc.
Xxxxx Fargo Securities, LLC
[OTHER UNDERWRITERS].......................
----------------------------
Total......................................
============================
A-1
EXHIBIT B
FORM OF OPINION OF VEDDER, PRICE, XXXXXXX & XXXXXXX, P.C.
1. The Fund has been duly formed and is validly existing in good standing
as a statutory trust under the Delaware Act, with full power and authority to
own, lease and operate its properties and to conduct its business as described
in the Registration Statement, the Preliminary Prospectus and the Prospectus.
2. The Fund is duly registered with the Commission pursuant to Section 8 of
the 1940 Act as a closed-end, diversified management investment company and the
1940 Act Notification has been duly filed with the Commission; all action has
been taken by the Fund as required by the 1933 Act, the 1940 Act, and the Rules
and Regulations to permit the Fund to issue and sell the Securities to make the
public offering and consummate the sale of the Securities as contemplated by the
Underwriting Agreement; the Underwriting Agreement and each of the Fund
Agreements complies in all material respects with all applicable provisions of
the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations, and the
Advisers Act Rules and Regulations; and the Fund has not received any notice
from the Commission pursuant to Section 8(e) of the 1940 Act with respect to the
1940 Act Notification or the Registration Statement.
3. The Fund's Declaration of Trust and by-laws comply in all material
respects with the 1940 Act and the 1940 Act Rules and Regulations.
4. The Fund has full power and authority to enter into the Underwriting
Agreement and the Fund Agreements; the execution and delivery of, and the
performance by the Fund of its obligations under the Underwriting Agreement and
the Fund Agreements have been duly and validly authorized by the Fund; the
Underwriting Agreement and the Fund Agreements constitute valid and legally
binding agreements of the Fund, enforceable against the Fund in accordance with
their terms, except as rights to indemnity and contribution thereunder may be
limited by federal or state securities laws and subject to the qualification
that the enforceability of the Fund's obligations hereunder and thereunder may
be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance and other laws relating to or affecting creditors' rights generally
and by general equitable principles.
5. Neither the issuance and sale of the Securities in accordance with the
Underwriting Agreement, the execution, delivery or performance of the
Underwriting Agreement or any of the Fund Agreements by the Fund, nor the
consummation by the Fund of the transactions contemplated herein or therein or
the adoption of the Fund's Dividend Reinvestment Plan (i) conflicts or will
conflict with or constitutes or will constitute a breach of the Declaration of
Trust or by-laws of the Fund, (ii) conflicts or will conflict with or
constitutes or will constitute a breach of or a default under, any material
contract of the Fund, as set forth on Schedule I hereto, or (iii) violates or
will violate any existing United States of America or State of Illinois statute,
law or regulation (assuming compliance with all applicable state securities and
blue sky laws, and except that, in the published opinion of the Commission, the
indemnification provisions in the Underwriting Agreement and the Fund
Agreements, insofar as they relate to
indemnification for liabilities arising under the 1933 Act, are against public
policy as expressed in the 1933 Act and therefore unenforceable) or violates any
filing or judgment, injunction, order or decree known to us to be applicable to
the Fund or any of its properties or will result in the creation or imposition
of any security interest, lien, charge or encumbrance upon any property or
assets of the Fund pursuant to the terms of any agreement or instrument to which
the Fund is a party or by which the Fund may be bound or to which any of the
property or assets of the Fund is subject (except in each case for such
conflicts, violations, breaches or defaults of liens, charges or encumbrances
that would not have a material adverse effect on the ability of the Fund to
perform its obligations under the Underwriting Agreement and the Fund
Agreements).
6. None of the offering, issuance, sale or delivery of the Securities
pursuant to the Underwriting Agreement, or the consummation of any of the other
transactions contemplated by the Underwriting Agreement or the Fund Agreements,
in each case on the terms contemplated by the Registration Statement, the
Preliminary Prospectus and the Prospectus, requires any consent, approval,
authorization or other order of or registration or filing with, the Commission,
the National Association of Securities Dealers, Inc., or any national securities
exchange, or governmental body or agency of the United States of America, or
State of Illinois or State of Delaware or, based solely on a review of our
litigation docket and based solely on the Docket Search (as that term is defined
in the Xxxxxx Xxxxxxx Opinion), an order of any court or arbitrator of the
United States of America or State of Illinois or any Delaware Court (as that
term is defined in the Xxxxxx Xxxxxxx Opinion), except (1) the absence of which,
either individually or in the aggregate, would not have a material adverse
effect on the Fund or the offering of the Securities as contemplated in the
Underwriting Agreement; (2) such as may have been obtained prior to the date
hereof; and (3) such as may be required for compliance with state securities or
blue sky laws of various jurisdictions.
7. The Fund has an authorized, issued and outstanding capitalization as set
forth in the Preliminary Prospectus and the Prospectus and the authorized
capitalization of the Fund conforms to the description thereof contained in the
Registration Statement, the Preliminary Prospectus and the Prospectus; all of
the outstanding common shares of beneficial interest have been duly authorized
and validly issued, and are fully paid and non-assessable; the Securities have
been duly authorized by all necessary action of the Fund under the Delaware Act
and, when issued to, and paid for by, the Underwriters in accordance with the
Underwriting Agreement, will be validly issued, fully paid and non-assessable
representing undivided beneficial ownership interests in the assets of the Fund;
the Securities are duly listed, and admitted and authorized for trading, subject
to official notice of issuance and evidence of satisfactory distribution, on the
NYSE; the form of certificate that may be used to evidence the common shares of
beneficial interest complies in all material respects with the applicable
requirements of the Fund's Declaration of Trust, the bylaws, the Delaware Act
and the rules of the NYSE, in each case as in effect on the date hereof.
8. No holders of outstanding common shares of beneficial interest are
entitled as such to any preemptive or other rights to subscribe for any common
shares of beneficial interest under any applicable contract, under the Fund's
Declaration of Trust or the by-laws or under the Delaware Act; and, except as
set forth in each Preliminary Prospectus and the Prospectus, no options,
warrants or other rights to purchase, agreements or other obligations to issue,
or rights to
convert any obligations into or exchange any securities for, shares of capital
stock of or ownership interests in the Fund are outstanding.
9. The statements set forth under the headings "Description of Shares" in
the Preliminary Prospectus and the Prospectus, "Certain Provisions of the
Agreement and Declaration of Trust and By-Laws" and "U.S. Federal Income Tax
Matters" in the Preliminary Prospectus, the Prospectus and Statement of
Additional Information, insofar as such statements purport to summarize certain
provisions of the 1940 Act, the Delaware Act, the common shares of beneficial
interest or the Fund's Declaration of Trust, United States federal income tax
law and regulations or legal conclusions with respect thereto, fairly and
accurately summarize such provisions in all material respects.
10. To the knowledge of such counsel, there is no pending or threatened
action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Fund or its property of a
character required to be disclosed in the Registration Statement which is not
adequately disclosed in the Preliminary Prospectus and the Prospectus, and there
are no agreements, franchises, contracts, indentures, mortgages, loan
agreements, notes, leases, permits or other instruments that are required to be
described in the Registration Statement, the Preliminary Prospectus or the
Prospectus, or to be filed as an exhibit thereto, which is not described or
filed as required by the 1933 Act, the 1940 Act or the Rules and Regulations.
11. The Registration Statement has become effective under the Act; any
required filing of the Prospectus, and any supplements thereto, pursuant to Rule
497 have been made in the manner and within the time period required by Rule
497; to the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued, no proceedings for
that purpose have been instituted or threatened by the Commission, and the
Registration Statement, the Preliminary Prospectus and the Prospectus (other
than the financial statements and other financial and statistical information
contained therein, as to which such counsel need express no statement) comply as
to form in all material respects with the applicable requirements of the Act,
the 1940 Act and the Rules and Regulations.
Nothing has come to such counsel's attention that would lead it to believe that:
(i) the Registration Statement, at the time it became effective,
contained 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 (other than the financial statements and
schedules and any other financial or statistical information or
calculations contained therein or incorporated therein by reference and
other than any exhibits, schedules or appendices included or incorporated
by reference therein, as to which such counsel expresses no opinion), or
(ii) the documents included in the General Disclosure Package, all
considered together, as of the Applicable Time, contained any untrue
statement of a material fact or omitted to state any material fact required
to be stated therein or necessary in order to make the statements therein,
in the light of circumstances under which they were made, not misleading
(other than the financial statements and schedules and any other financial
or statistical information or calculations contained therein or
incorporated therein by reference and other than any exhibits, schedules or
appendices included or incorporated by reference therein, as to which such
counsel expresses no opinion), or
(iii) the Prospectus, as of its date and as of the Closing Date,
contained or contains an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (other than the financial statements and schedules and any other
financial or statistical information or calculations contained therein or
incorporated therein by reference and other than any exhibits, schedules or
appendices included or incorporated by reference therein, as to which such
counsel expresses no opinion).
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of the laws of any jurisdiction other than the State
of Delaware (other than the Delaware Statutory Trust Act), State of Illinois,
State of New York or the Federal laws of the United States to the extent they
deem proper and specified in such opinion, upon the opinion of other counsel of
good standing whom they believe to be reliable and who are satisfactory to
counsel for the Underwriters, (B) as to matters involving the application of the
Delaware Statutory Trust Act to the extent they deem proper and specified in
such opinion, upon the opinion of Morris, Nichols, Arsht & Xxxxxxx or other
counsel of good standing whom they believe to be reliable and who are
satisfactory to counsel for the Underwriters and (C) as to matters of fact, to
the extent they deem proper, on certificates of responsible officers of the Fund
and public officials. References to the Preliminary Prospectus and the
Prospectus shall also include any supplements thereto at the Closing Date.
EXHIBIT C
FORM OF OPINION OF VEDDER, PRICE, XXXXXXX & XXXXXXX, P.C.
1. The Adviser has been duly formed and is validly existing in good
standing as a limited liability company under the Delaware Limited Liability
Company Act, with full power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement, the Preliminary Prospectus and the Prospectus. The Adviser is duly
qualified to do business and is in good standing under the laws of the State of
Illinois.
2. The Adviser is duly registered with the Commission as an investment
adviser under the Advisers Act, and is not prohibited by the Advisers Act, the
1940 Act or the Advisers Act Rules and Regulations or the 1940 Act Rules and
Regulations from acting under the Advisory Agreement, the Accounting Agreement
and the Structuring Fee Agreements and, to the best of such counsel's knowledge
after reasonable inquiry, there does not exist any proceeding which should
reasonably be expected to adversely affect the registration of the Adviser with
the Commission.
3. The Adviser has full power and authority to enter into the Underwriting
Agreement, the Advisory Agreement, the Accounting Agreement and the Structuring
Fee Agreements; the execution and delivery of, and the performance by the
Adviser of its obligations under the Underwriting Agreement, the Advisory
Agreement, the Accounting Agreement and the Structuring Fee Agreements have been
duly and validly authorized by the Adviser; the Underwriting Agreement, the
Advisory Agreement, the Accounting Agreement and the Structuring Fee Agreements
constitute valid and legally binding agreements of the Adviser, enforceable
against the Adviser in accordance with their terms, except as rights to
indemnity and contribution thereunder may be limited by federal or state
securities laws and subject to the qualification that the enforceability of the
Adviser's obligations hereunder and thereunder may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance and other laws
relating to or affecting creditors' rights generally and by general equitable
principles.
4. The Underwriting Agreement, the Advisory Agreement, the Accounting
Agreement and the Structuring Fee Agreements comply in all material respects
with all applicable provisions of the Advisers Act, the 1940 Act and the
Advisers Act Rules and Regulations and the 1940 Act Rules and Regulations.
5. Neither the execution, delivery or performance of the Underwriting
Agreement, the Advisory Agreement, the Accounting Agreement or the Structuring
Fee Agreements to which the Adviser is a party nor the consummation by the
Adviser of the transactions therein contemplated herein or therein (i) conflicts
or will conflict with or constitutes or will constitute a breach of the charter
or by-laws of the Adviser, (ii) conflicts or will conflict with or constitutes
or will constitute a breach of or a default under, any material contract of the
Adviser, as set forth on Schedule I hereto, or (iii) violates or will violate
any applicable federal or State of Illinois law, statute, rule or regulation or
the Delaware Limited Liability Company Act or any judgment, order, writ or
decree known to us, of any governmental authority or administrative agency of
the United States of America or the State of Illinois or under the Delaware
Limited Liability Company Act or will result in the creation or imposition of
any security interest, lien, charge or
encumbrance upon any property or assets of the Adviser pursuant to the terms of
any agreement or instrument to which the Adviser is a party or by which the
Adviser may be bound or to which any of the property or assets of the Adviser is
subject (except in each case for such conflicts, violations, breaches or
defaults or liens, charges of encumbrances that would not have a material
adverse effect on the ability of the Adviser to perform its obligations under
the Underwriting Agreement and the Adviser Agreements).
6. The description of the Adviser and its business in the Preliminary
Prospectus and the Prospectus complies in all material respects with all
requirements of the 1933 Act, the 1940 Act and the Rules and Regulations.
7. (A) No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental authority or
agency, domestic or foreign, and (B) no authorization, approval, vote or other
consent of any other person or entity, is necessary or required for the
performance by the Adviser of its obligations under the Underwriting Agreement,
the Advisory Agreement, the Accounting Agreement or the Structuring Fee
Agreements, for the offering, issuance, sale or delivery of the Securities
hereunder, or for the consummation of any of the other transactions contemplated
by the Underwriting Agreement, the Advisory Agreement, the Accounting Agreement
or the Structuring Fee Agreements, in each case on the terms contemplated by the
Registration Statement, the Preliminary Prospectus and the Prospectus, except
such as have been already obtained under the 1933 Act, the 1940 Act, the Rules
and Regulations, the rules and regulations of the NASD and the NYSE and such as
may be required under state securities laws.
8. To the knowledge of such counsel, there is no pending or threatened
action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Adviser or its property of a
character required to be disclosed in the Registration Statement which is not
adequately disclosed in the Preliminary Prospectus and the Prospectus, and there
are no agreements, franchises, contracts, indentures, mortgages, loan
agreements, notes, leases, permits or other instruments that are required to be
described in the Registration Statement, the Preliminary Prospectus or the
Prospectus, or to be filed as an exhibit thereto, which is not described or
filed as required by the 1933 Act, the 1940 Act or the Rules and Regulations.
Nothing has come to such counsel's attention that would lead it to believe that:
(i) the Registration Statement, at the time it became effective,
contained 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 (other than the financial statements and
schedules and any other financial or statistical information or
calculations contained therein or incorporated therein by reference and
other than any exhibits, schedules or appendices included or incorporated
by reference therein, as to which such counsel expresses no opinion), or
(ii) the documents included in the General Disclosure Package, all
considered together, as of the Applicable Time, contained any untrue
statement of a material fact or omitted to state any material fact required
to be stated therein or necessary in order to
make the statements therein, in the light of circumstances under which they
were made, not misleading (other than the financial statements and
schedules and any other financial or statistical information or
calculations contained therein or incorporated therein by reference and
other than any exhibits, schedules or appendices included or incorporated
by reference therein, as to which such counsel expresses no opinion), or
(iii) the Prospectus, as of its date and as of the Closing Date,
contained or contains an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (other than the financial statements and schedules and any other
financial or statistical information or calculations contained therein or
incorporated therein by reference and other than any exhibits, schedules or
appendices included or incorporated by reference therein, as to which such
counsel expresses no opinion).
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State of
Delaware, State of Illinois, State of New York or the Federal laws of the United
States, to the extent they deem proper and specified in such opinion, upon the
opinion of other counsel of good standing whom they believe to be reliable and
who are satisfactory to counsel for the Underwriters and (B) as to matters of
fact, to the extent they deem proper, on certificates of responsible officers of
the Fund and public officials. References to the Preliminary Prospectus and the
Prospectus shall also include any supplements thereto at the Closing Date.
EXHIBIT D
FORM OF OPINION OF MORRIS, NICHOLS, ARSHT & XXXXXXX
1. The Fund has been duly formed and is validly existing in good standing
as a statutory trust under the Delaware Act. The Fund has the statutory trust
power and authority to own property and conduct its business as described in the
Prospectus.
2. Under the Delaware Act and the Governing Instrument, the execution and
delivery of the Underwriting Agreement and each of the Fund Agreements by the
Fund, and the performance by the Fund of its obligations thereunder, have been
duly authorized by all requisite statutory trust action on the part of the Fund.
3. The Investment Advisor Shares are the only Shares currently issued and
outstanding other than any Common Shares issued and sold pursuant to the
Underwriting Agreement. The Investment Advisor Shares have been duly authorized
for issuance by the Fund, are validly issued and, subject to the qualifications
below, fully paid and non-assessable beneficial interests in the Series. The
holder of the Investment Advisor Shares will be, subject to the terms of the
Governing Instrument, entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware.
4. The Common Shares have been duly authorized for issuance by the Fund
and, when issued and delivered against payment therefor in accordance with the
terms, conditions, requirements and procedures set forth in the Underwriting
Agreement, will be validly issued and, subject to the qualifications below,
fully paid and non-assessable beneficial interests in the Series. The holders of
Common Shares will be, subject to the terms of the Governing Instrument,
entitled to the same limitation of personal liability extended to stockholders
of private corporations for profit organized under the General Corporation Law
of the State of Delaware.
5. Under the Governing Instrument and the Delaware Act, the issuance of the
Common Shares is not subject to preemptive rights.
6. The form of Common Shares Certificate complies with all applicable
requirements of the Delaware Act.
7. No authorization, approval, consent or order of any governmental
authority or agency of the State of Delaware or an order of any Delaware Court,
is required to be obtained by the Fund solely as a result of the issuance and
sale of the Common Shares, the consummation by the Fund of the transactions
contemplated by the Underwriting Agreement and the Fund Agreements or the
performance by the Fund of its obligations thereunder, or the adoption of the
Automatic Dividend Reinvestment Plan.
8. The execution and delivery by the Fund of the Underwriting Agreement and
the Fund Agreements, the consummation by the Fund of the transactions
contemplated by the Underwriting Agreement and the Fund Agreements, the
performance by the Fund of its obligations thereunder, the issuance and sale by
the Fund of the Common Shares and the
5
adoption of the Automatic Dividend Reinvestment Plan will not violate (i) the
Certificate or the Governing Instrument or (ii) any applicable Delaware law or
administrative regulation.
9. There is not in any Delaware Court any action, suit or proceeding
pending against the Fund.
EXHIBIT E
PRICE-RELATED INFORMATION
CALAMOS GLOBAL DYNAMIC INCOME FUND
Public offering price: $[15.00] per share
Underwriting discounts and commissions: $____ per share
Proceeds, before expenses to the Fund: $____ per share
Shares offered: _____
Over-allotment option: _____
