EXECUTION COPY
ENERGY INCOME AND GROWTH FUND
1,600,000 Common Shares of Beneficial Interest
UNDERWRITING AGREEMENT
----------------------
November 19, 2010
RBC Capital Markets, LLC
BB&T Capital Markets, a division of Xxxxx & Xxxxxxxxxxxx, LLC
Xxxxxx Xxxxxxxxxx Xxxxx LLC
Xxxxxxxxx Xxxxxxxx & Co. Inc.
Maxim Group LLC
Xxxxxxxxxxx & Co. Inc.
Wedbush Securities Inc.
Xxxxxxxxxx Securities, Inc.
c/o RBC Capital Markets, LLC
Xxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Ladies and Gentlemen:
Energy Income and Growth Fund, a Massachusetts business trust (the
"FUND"), First Trust Advisors L.P., an Illinois limited partnership (the
"ADVISER") and Energy Income Partners LLC, a Delaware limited liability company
(the "SUB-ADVISER"), confirm their agreement (this "AGREEMENT") with RBC Capital
Markets, LLC ("RBC") and each of the other Underwriters named in Schedule
A hereto (collectively, the "UNDERWRITERS," which term shall also include any
underwriter substituted as hereinafter provided in Section 9 hereof), with
respect to the issue and sale by the Company of a total of 1,600,000 common
shares of beneficial interest, par value $0.01 per share (the "SHARES"), and the
purchase by the Underwriters, acting severally and not jointly, of the
respective numbers of Shares set forth in said Schedule A hereto (the "INITIAL
SECURITIES"), and with respect to the grant by the Company to the Underwriters,
acting severally and not jointly, of the option described in Section 2(b) hereof
to purchase all or any part of 240,000 additional Shares to cover
over-allotments, if any (the "OVER-ALLOTMENT SECURITIES"). The Initial
Securities and Over-Allotment Securities are hereinafter called, collectively,
the "SECURITIES."
The Fund, the Adviser and the Sub-Adviser each understand that the
Underwriters propose to make a public offering of the Securities as soon as the
Underwriters deem advisable after this Agreement has been executed and
delivered.
The Fund has entered into an interim investment management agreement with
the Adviser dated October 12, 2010 (the "ADVISORY AGREEMENT"), a Custodian
Services Agreement with PFPC Trust Company (the "CUSTODIAN") dated May 25, 2004
(the "CUSTODIAN CONTRACT"), a Transfer Agency Agreement with PFPC Inc. dated May
25, 2004 (the "TRANSFER AGENCY AGREEMENT") and an Administration and Accounting
Services Agreement with PFPC Inc. dated May 25, 2004 (the "ADMINISTRATION
AGREEMENT"). Collectively, the Advisory Agreement, the Custodian Contract, the
Transfer Agency Agreement and the Administration Agreement are herein referred
to as the "FUND AGREEMENTS." The Adviser has entered into the Advisory Agreement
and an interim Sub-Advisory Agreement with the Sub-Adviser and the Fund dated
October 12, 2010 (the "SUB-ADVISORY AGREEMENT") (collectively, the "ADVISER
AGREEMENTS"). The Sub-Adviser has entered into the Sub-Advisory Agreement and
this Agreement. In addition, the Fund has adopted a dividend reinvestment plan
(the "DIVIDEND REINVESTMENT PLAN") pursuant to which the holders of the Shares
shall have their dividends automatically reinvested in additional Shares unless
they elect to receive such dividends in cash.
The Fund has filed, in accordance with the provisions of the Securities
Act of 1933, as amended, and the rules and regulations thereunder (collectively,
the "SECURITIES ACT") and the Investment Company Act of 1940, as amended, and
the rules and regulations thereunder (collectively, the "INVESTMENT COMPANY
ACT"), with the Securities and Exchange Commission (the "COMMISSION") a
registration statement on Form N-2 with respect to the Shares (File Nos.
333-154254 and 811-21549) (the "ORIGINAL REGISTRATION STATEMENT"), including a
base prospectus dated May 8, 2009 included in the Original Registration
Statement at the time it became effective and a base prospectus dated August 17,
2010 included by post-effective amendment No. 4 to the Original Registration
Statement, which base prospectus shall be referred to herein as the "BASE
PROSPECTUS". The Base Prospectus, together with the preliminary prospectus
supplement, dated November 18, 2010, filed with the Commission pursuant to Rule
497 under the Securities Act, is herein referred to as the "PRELIMINARY
PROSPECTUS." The Base Prospectus, together with the prospectus supplement to be
filed with the Commission pursuant to Rule 497 and used to confirm sales of the
Securities, is hereinafter referred to as the "PROSPECTUS." Except where the
context otherwise requires, the Original Registration Statement, as amended when
it became effective, including all documents and exhibits filed as part thereof,
and including any information contained in a prospectus filed with the
Commission pursuant to Rule 497 under the Securities Act, and deemed to be part
of the Original Registration Statement at the time of effectiveness pursuant to
Rule 430C under the Securities Act, and also including any Rule 462(d)
Registration Statement referred to below filed pursuant to Rule 462(d) under the
Securities Act is herein called the "REGISTRATION STATEMENT." The Preliminary
Prospectus, together with the information set forth on Schedule B hereto (which
information the Underwriters have informed the Company is being conveyed orally
by the Underwriters to prospective purchasers at or prior to the Underwriters'
confirmation of sales of the Securities in the public offering) is hereinafter
referred to as the "DISCLOSURE PACKAGE." Any registration statement filed
pursuant to Rule 462(d) under the Securities Act is referred to herein as the
"RULE 462(D) REGISTRATION STATEMENT."
For purposes of this Agreement, all references to the Registration
Statement, the Prospectus, the Preliminary Prospectus, the Disclosure Package or
to any amendment or supplement thereto shall be deemed to include any copy filed
with the Commission pursuant to its Interactive Data Electronic Application
database ("IDEA"). For purposes of this Agreement, all references to the
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Registration Statement, unless otherwise noted and except as the context
otherwise requires, shall be deemed to include any and all amendments thereto.
1. Representations and Warranties of the Fund, the Adviser and the
Sub-Adviser.
(a) Representations and Warranties by the Fund, the Adviser and the
Sub-Adviser. The Fund, the Adviser and (with respect to paragraphs (2), (3), (4)
and (22) below only) the Sub-Adviser, jointly and severally, represent and
warrant to and agree with the Underwriters as of the date hereof, as of the
Applicable Time referred to in Section 1(a)(3) herein, as of the Closing Time
referred to in Section 2(c) herein, and as of each Option Closing Time (if any)
referred to in Section 2(b) herein, as follows:
(1) The Registration Statement has become effective under the
Securities Act, and no stop order suspending the effectiveness of the
Registration Statement or the use of the Preliminary Prospectus or the
Prospectus has been issued, and no proceedings for any such purpose, have
been instituted or are pending or, to the knowledge of the Fund, are
contemplated by the Commission.
(2) At the respective times the Registration Statement, and any
subsequent post-effective amendment thereto, became effective, at the
Closing Time and as of each Option Closing Time (if any), the Registration
Statement, and all amendments and supplements thereto, complied and will
comply in all material respects with the requirements of the Securities
Act and the Investment Company Act, and did not and will not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading. Neither the Prospectus nor any amendment or supplement
thereto, as of its date, at the time the Prospectus or any such amendment
or supplement was issued, at the Closing Time and as of each Option
Closing Time (if any), included or will include any untrue statement of a
material fact or omitted or will 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. The representations and
warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or Prospectus made in reliance
upon and in conformity with information furnished to the Fund by or on
behalf of any Underwriter or its representatives for use in the
Registration Statement or Prospectus, it being understood and agreed that
the only such information furnished to the Company in writing by the
Underwriters or their representatives consists of the information
described in Section 6(b) hereof.
(3) The Disclosure Package as of the Applicable Time does not
include 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. The
preceding sentence does not apply to statements in or omissions from the
Disclosure Package based upon and in conformity with information relating
to any Underwriter furnished to the Company in writing by any Underwriter
or its representative expressly for use therein, it being understood and
agreed that the only such information furnished by the Underwriters to the
Company consists of the information described in Section 6(b) hereof. As
used in this subsection and elsewhere in this Agreement "APPLICABLE TIME"
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means 9:15 a.m. (Eastern time) on November 19, 2010 or such other time as
agreed by the Fund and the Underwriters.
(4) The Preliminary Prospectus when first filed under Rule 497 and
as of its date complied in all material respects with the Securities Act
and the Investment Company Act, and when filed by electronic transmission
pursuant to IDEA (except as may be permitted by Regulation S-T under the
Securities Act), was substantially identical to the copy thereof delivered
to the Underwriters for use in connection with this offering. The
Prospectus when first filed under Rule 497 and as of its date will comply
in all material respects with the Securities Act and the Investment
Company Act, and when filed by electronic transmission pursuant to IDEA
(except as may be permitted by Regulation S-T under the Securities Act),
will be substantially identical to the copy thereof delivered to the
Underwriters for use in connection with this offering.
(5) All the outstanding shares of capital stock of the Fund have
been duly authorized and validly issued, are fully paid and (except as
described in the Prospectus under "Certain Provisions in the Declaration
of Trust and By-Laws") nonassessable and are free of any preemptive or
similar rights and have been offered and sold by the Fund in compliance
with all applicable federal and state securities laws. No shares of
capital stock, other than the Shares, are issued or outstanding and the
capitalization of the Fund conforms in all material respects to the
description thereof in the Registration Statement, the Disclosure Package
and the Prospectus. The Securities have been duly authorized for issuance
and sale pursuant to this Agreement and, when issued, delivered against
payment therefore in accordance with this Agreement, will be validly
issued and fully paid and nonassessable obligations of the Fund; and the
Securities will conform in all material respects to the description
thereof in the Registration Statement, the Disclosure Package and the
Prospectus.
(6) The Fund has been duly formed and is validly existing in good
standing as a business trust under the laws of The Commonwealth of
Massachusetts, with full power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement, the Disclosure Package and the Prospectus and to enter into and
perform its obligations under this Agreement and the Fund Agreements. The
Fund is duly registered and qualified to conduct business and is in good
standing in each jurisdiction or place where the nature of its properties
or the conduct of its business requires such registration or
qualification, except where the failure so to register or to qualify,
either alone or in the aggregate, does not have or would not reasonably be
expected to have a material adverse effect on the condition (financial or
otherwise), general affairs, business, properties, business prospects, net
assets or results of operations of the Fund, whether or not occurring in
the ordinary course of business (a "FUND MATERIAL ADVERSE EFFECT"). The
Fund has no subsidiaries.
(7) There are no legal or governmental proceedings pending or, to
the knowledge of the Fund, threatened against the Fund or to which the
Fund or any of its properties is subject, that are required to be
described in the Registration Statement, the Disclosure Package or the
Prospectus but are not described as required or that could reasonably be
expected to result in a Fund Material Adverse Effect, or that may have a
material, adverse effect on the ability of the Fund to perform its
obligations under this Agreement or any of the Fund Agreements. All
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descriptions in the Registration Statement, the Disclosure Package and the
Prospectus of any Fund documents are accurate in all material respects.
There are no agreements, contracts, indentures, leases or other
instruments that are required to be described in the Registration
Statement, the Disclosure Package or the Prospectus or to be filed as an
exhibit to the Registration Statement that are not described or filed as
required by the Securities Act or Investment Company Act.
(8) The Fund is not in violation of its Declaration of Trust
("DECLARATION OF TRUST"), By-Laws or other organizational documents or any
law, ordinance, administrative or governmental rule or regulation
applicable to the Fund or of any decree of the Commission, the Financial
Industry Regulatory Authority ("FINRA"), any state securities commission,
any national securities exchange, any arbitrator, any court or any other
governmental, regulatory, self-regulatory or administrative agency or any
other agency or any body or official having jurisdiction over the Fund or
in breach or default in the performance of any of the Fund Agreements or
any other obligation, agreement or condition contained in any bond,
debenture, note or any other evidence of indebtedness or in any agreement,
indenture, lease or other instrument to which the Fund is a party or by
which it or any of its properties may be bound, except for such violation
or such breach or default that, either alone or in the aggregate, does not
have or would not reasonably be expected to have a Fund Material Adverse
Effect.
(9) Neither the issuance and sale of the Securities, the execution,
delivery or performance of this Agreement or any of the Fund Agreements by
the Fund, nor the consummation by the Fund of the transactions
contemplated hereby or thereby (A) requires any consent, approval,
authorization or order of or registration or filing with the Commission,
FINRA, any state securities commission, any national securities exchange,
any arbitrator, any court, regulatory body, administrative agency or other
governmental body, agency or official having jurisdiction over the Fund
(except such as have been already obtained under the Securities Act, the
Investment Company Act, the rules and regulations of FINRA and the NYSE
Amex or compliance with the securities or Blue Sky laws of various
jurisdictions which have been or will be effected in accordance with this
Agreement) or conflicts or will conflict with or constitutes or will
constitute a breach of the Declaration of Trust, bylaws, or other
organizational documents of the Fund or (B) (1) conflicts or will conflict
with or constitutes or will constitute a breach of or a default under any
of the Fund Agreements or any other 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 (2) 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 (collectively, a
"LIEN") any property or assets of the Fund pursuant to the terms of any
agreement or instrument to which it is a party or by which it may be bound
or to which any of the property or assets of the Fund is subject, except
for such conflict, breach, default, violation or lien that, either alone
or in the aggregate, does not have or would not reasonably be expected to
have a Fund Material Adverse Effect or a material adverse effect on the
ability of the Fund to perform its obligations under this Agreement or any
5
of the Fund Agreements. The Fund is not subject to any order of any court
or of any arbitrator, governmental authority or administrative agency.
(10) Since the date as of which information is given in the
Registration Statement, the Disclosure Package and the Prospectus, except
as otherwise stated therein, (A) there has been no material adverse change
in the condition (financial or other), business, properties, net assets or
results of operations of the Fund or business prospects (other than as a
result of a change in the financial markets generally) of the Fund,
whether or not arising in the ordinary course of business, (B) there have
been no transactions entered into by the Fund other than those in the
ordinary course of its business as described in the Disclosure Package and
the Prospectus and (C) there has been no dividend or distribution of any
kind declared, paid or made by the Fund on any class of its common stock,
except for regular dividends consistent with past practice.
(11) The accountants, Deloitte & Touche LLP, who have audited the
financial statements included in, and whose report appears in, the
Registration Statement, the Disclosure Package and the Prospectus (and any
amendment or supplement to either of them), are an independent public
accounting firm as required by the Securities Act and Investment Company
Act.
(12) The financial statements of the Fund, together with related
schedules and notes, included or incorporated by reference in the
Registration Statement, the Disclosure Package and/or the Prospectus
present fairly the financial position of the Fund on the basis stated in
the Registration Statement, the Disclosure Package and/or the Prospectus
at the respective dates or for the respective periods to which they apply;
such statements and related schedules and notes have been prepared in
accordance with generally accepted accounting principles consistently
applied throughout the periods involved except as disclosed therein and
comply with all applicable accounting requirements under the Securities
Act and the Investment Company Act; and the other financial and
statistical information and data included in the Registration Statement,
the Disclosure Package or the Prospectus are accurately derived from such
financial statements and the books and records of the Fund.
(13) The Fund, subject to the filing of the Prospectus under Rule
497 under the Securities Act and the post-effective amendment to the
Registration Statement to file legal opinions and this Agreement, has
taken all required action under the Securities Act and the Investment
Company Act to make the public offering and consummate the sale of the
Securities as contemplated by this Agreement.
(14) 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 each of the
Fund Agreements have been duly executed and delivered by the Fund and each
constitutes the valid and legally binding agreement of the Fund,
enforceable against the Fund in accordance with its terms, except as
rights to indemnity and contribution hereunder 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
6
limited by bankruptcy, insolvency, reorganization, moratorium and other
laws relating to or affecting creditors' rights generally and by general
equitable principles.
(15) Except as disclosed in or contemplated by the Registration
Statement, the Disclosure Package or the Prospectus, subsequent to the
respective dates as of which such information is given in the Registration
Statement, the Disclosure Package and the Prospectus, the Fund has not
incurred any material liability or obligation, direct or contingent, or
entered into any transaction, not in the ordinary course of business, and
there has not been any change in the capital stock (other than in
connection with the transactions contemplated hereunder or pursuant to the
Fund's dividend reinvestment plan) or any change or any development
involving or which should reasonably be expected to involve a Fund
Material Adverse Effect.
(16) The Fund has not distributed and, prior to the later to occur
of (A) the Closing Time or any Option Closing Time and (B) 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 Disclosure Package, the Prospectus,
the "sales material" (as defined in Section 1(a)(22) below) or other
materials permitted by the Securities Act or the Investment Company Act.
(17) 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
Disclosure Package 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 Disclosure
Package and the Prospectus (and any amendment or supplement thereto); and,
except as described in the Disclosure Package and the Prospectus (and any
amendment or supplement thereto), none of such permits contains any
restriction that is materially burdensome to the Fund.
(18) The Fund maintains and will maintain a system of internal
accounting controls sufficient to provide reasonable assurances that (A)
transactions are executed in accordance with the Fund's Board of Trustees'
general or specific authorization and with the investment policies and
restrictions of the Fund and the applicable requirements of the Securities
Act, the Investment Company Act and the Internal Revenue Code of 1986, as
amended, (the "CODE"); (B) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles, to calculate net asset value and fee
accruals, to maintain accountability for assets and to maintain compliance
with the books and records requirements under the Investment Company Act;
(C) access to assets is permitted only in accordance with the Board of
Trustees' general or specific authorization; and (D) the recorded amount
of assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. The Fund
maintains "disclosure controls and procedures" (as such term is defined in
Rule 30a-3 under the Investment Company Act).
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(19) The conduct by the Fund of its business (as described in the
Disclosure Package and the Prospectus) does not require it to be the
owner, possessor or licensee of any patents, patent licenses, trademarks,
service marks or trade names which it does not own, possess or license or
sub-license.
(20) Except as stated in this Agreement and in the Disclosure
Package and the Prospectus, the Fund has not taken and will not take,
directly or indirectly, any action designed to or which could cause or
result in or which will constitute stabilization or manipulation of the
price of the Securities, or of any securities issued by the Fund, to
facilitate the sale or resale of the Securities in violation of federal
securities laws and no such action has been, or will be, taken by any
affiliates of the Fund.
(21) The Fund is duly registered under the Investment Company Act as
a closed-end, non-diversified management investment company and the
notification of registration of the Fund as an investment company under
the Investment Company Act on Form N-8A has been duly filed with the
Commission, is effective, and, at the time of filing thereof and at all
times through the date hereof conformed in all material respects with all
applicable provisions of the Investment Company Act; no order of
suspension or revocation of such registration under the Investment Company
Act has been issued or proceedings therefor initiated or threatened by the
Commission. The provisions of the Declaration of Trust and the investment
policies and restrictions described in each of the Registration Statement,
the Disclosure Package and the Prospectus, comply in all material respects
with the requirements of the Investment Company Act.
(22) All advertising, sales literature or other promotional material
(including "prospectus wrappers", "broker kits", "road show slides" and
"road show scripts"), if any, 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 Securities Act
and the rules and interpretations of FINRA. 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.
(23) This Agreement and each of the Fund Agreements complies in all
material respects with all applicable provisions of the Securities Act,
the Investment Company Act and the Advisers Act.
(24) No holder of any security of the Fund has any right to require
registration of any Shares, capital stock or any other security of the
Fund because of the filing of the registration statement or consummation
of the transactions contemplated by this Agreement.
(25) Except as disclosed in the Registration Statement, the
Disclosure Package and the Prospectus, no trustee of the Fund is an
"interested person" (as defined in the Investment Company Act) of the Fund
or an "affiliated person" (as defined in the Investment Company Act) of
any Underwriter.
8
(26) The Securities are duly listed and admitted and authorized for
trading, subject to official notice of issuance, on the NYSE Amex.
(27) 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 FINRA pursuant to FINRA's conduct rules is true, complete and
correct in all material respects.
(28) 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
in any material respect with any provision of the Xxxxxxxx-Xxxxx Act of
2002 and the rules and regulations promulgated in connection therewith
(the "SARBANES OXLEY ACT"), including Sections 302 and 906 related to
certifications.
(29) 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.
(30) 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
Investment Company Act) by the Fund, including policies and procedures
that provide oversight of compliance for each investment adviser,
administrator and transfer agent of the Fund.
(31) The Fund carries, or is covered by, insurance in such amounts
and covering such risks as is adequate for the conduct of its business and
value of its properties.
(b) Representations and Warranties with Respect to the Adviser. The
Adviser represents and warrants to and agrees with the Underwriters as of the
date hereof, as of the Applicable Time, as of the Closing Time referred to in
Section 2(c) herein, and as of each Option Closing Time (if any) referred to in
Section 2(b) herein, as follows:
(1) The Adviser is a limited partnership duly organized and validly
existing in good standing under the laws of the State of Illinois, with
full power and authority to own, lease and operate its properties and to
conduct its business as described in each of the Registration Statement,
the Disclosure Package and the Prospectus and is duly registered and
qualified to conduct business and is in good standing in each jurisdiction
or place where the nature of its properties or conduct of its business
requires such registration or qualification, except where the failure so
to register or to qualify, either alone or in the aggregate, does not have
or would not reasonably be expected to have (A) a material adverse effect
on the condition (financial or other), general affairs, business,
properties, business prospects, net assets or results of operations,
whether or not occurring in the ordinary course of business, of the
Adviser (an "ADVISER MATERIAL ADVERSE EFFECT") or (B) a Fund Material
Adverse Effect.
9
(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 or the Investment Company Act from acting under the Advisory
Agreement for the Fund as contemplated by the Registration Statement, the
Disclosure Package or the Prospectus. There does not exist any proceeding
which could have an Adviser Material Adverse Effect with respect to the
registration of the Adviser with the Commission.
(3) There are no legal or governmental proceedings pending or, to
the knowledge of the Adviser, threatened against the Adviser that are
required to be described in the Registration Statement, the Disclosure
Package or the Prospectus but are not described as required or that could
reasonably be expected to result in any Adviser Material Adverse Effect or
that may have a material, adverse effect on the ability of the Adviser to
perform its obligations under this Agreement or any of the Adviser
Agreements.
(4) Neither the execution, delivery or performance of this Agreement
or any of the Adviser Agreements by the Adviser, nor the consummation by
the Adviser of the transactions contemplated hereby or thereby (A)
requires the Adviser to obtain any consent, approval, authorization or
other order of, or registration or filing with, the Commission, FINRA, any
state securities commission, any national securities exchange, any
arbitrator, any court, regulatory body, administrative agency or other
governmental body, agency or official having jurisdiction over the
Adviser, or conflicts or will conflict with or constitutes or will
constitute a breach of or a default under, the partnership agreement or
bylaws or other organizational documents of the Adviser or (B) conflicts
or will conflict with or constitutes or will constitute a breach of or a
default under, any of the Adviser Agreements or any other agreement,
indenture, lease or other instrument to which the Adviser is a party or by
which the Adviser or any of its properties may be bound, or violates or
will violate any statute, law, regulation 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 it is a party or by which it may be bound
or to which any of the property or assets of the Adviser is subject,
except in any case under clause (B) for such conflict, breach, default,
violation or lien that, either alone or in the aggregate, does not have or
would not reasonably be expected to have an Adviser Material Adverse
Effect or a material adverse effect on the ability of the Adviser to
perform its obligations under this Agreement or any of the Adviser
Agreements. The Adviser is not subject to any order of any court or of any
arbitrator, regulatory body, administrative agency or other governmental
body, agency or official.
(5) The Adviser has full power and authority to enter into this
Agreement and each of the Adviser Agreements; the execution and delivery
of, and the performance by the Adviser of its obligations under, this
Agreement and each of the Adviser Agreements have been duly and validly
authorized by the Adviser; and this Agreement and each of the Adviser
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 hereunder may be limited by federal
or state securities laws and subject to the qualification that the
10
enforceability of the Adviser's obligations hereunder and thereunder may
be limited by bankruptcy, fraudulent conveyance, insolvency,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and by general equitable principles whether
enforcement is considered in a proceeding in equity or at law.
(6) The Adviser has the financial resources necessary for the
performance of its services and obligations as contemplated in the
Registration Statement, the Disclosure Package and the Prospectus or under
this Agreement and each of the Adviser Agreements.
(7) The description of the Adviser in the Registration Statement,
the Disclosure Package and the Prospectus complied as of any effective
date of the Registration Statement and as of the date of the Disclosure
Package and the Prospectus, as applicable, and complies and will comply,
as of the date hereof, the Applicable Time, the Closing Time and as of
each Option Closing Time (if any), in all material respects with the
provisions of the Securities Act, the Investment Company Act and the
Advisers Act 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 (in the case of the
Disclosure Package and the Prospectus, in light of the circumstances under
which they were made) not misleading.
(8) Since the date as of which information is given in the
Registration Statement, the Disclosure Package or the Prospectus, except
as otherwise stated therein, there has not occurred any event which would
reasonably be expected to have a material adverse effect on the ability of
the Adviser to perform its obligations under this Agreement and each of
the Adviser Agreements.
(9) The Adviser has such permits as are necessary to own its
property and to conduct its business in the manner described in the
Disclosure Package and the Prospectus; and 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
impairment of the rights of the Adviser under any such permit.
(10) None of this Agreement nor any of the Adviser Agreements
violate any applicable provisions of the Investment Company Act and
Advisers Act.
(11) Except as stated in this Agreement, the Registration Statement,
the Disclosure Package or the Prospectus, the Adviser has not taken and
will not take, directly or indirectly, any action designed to or which
might reasonably be expected to cause or result in or which will
constitute stabilization or manipulation of the price of the Securities or
any securities issued by the Fund to facilitate the sale or resale of the
Securities in violation of federal securities laws and the Adviser is not
aware of any such action taken or to be taken by any affiliates of the
Adviser.
11
(12) 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 by the Adviser and its supervised
persons.
(c) Representations and Warranties with Respect to the Sub-Adviser.
The Sub-Adviser represents and warrants to and agrees with the Underwriters as
of the date hereof, as of the Applicable Time, as of the Closing Time referred
to in Section 2(c) herein, and as of each Option Closing Time (if any) referred
to in Section 2(b) herein, as follows:
(1) The Sub-Adviser is a limited liability company duly organized
and validly existing in good standing under the laws of the State of
Delaware, with full limited liability company power and authority to own,
lease and operate its properties and to conduct its business as described
in the Registration Statement, the Disclosure Package and the Prospectus
and is duly registered and qualified to conduct business and is in good
standing in each jurisdiction or place where the nature of its properties
or conduct of its business requires such registration or qualification,
except where the failure so to register or to qualify, either alone or in
the aggregate, does not have or would not reasonably be expected to have
(A) a material adverse effect on the condition (financial or other),
general affairs, business, properties, business prospects, net assets or
results of operations of the Sub-Adviser (a "SUB-ADVISER MATERIAL ADVERSE
EFFECT") or (B) a Fund Material Adverse Effect.
(2) The Sub-Adviser is duly registered with the Commission as an
investment adviser under the Advisers Act and is not prohibited by the
Advisers Act or the Investment Company Act from acting under the
Sub-Advisory Agreement for the Fund as contemplated by the Registration
Statement, the Disclosure Package or the Prospectus. There does not exist
any proceeding which could have a Sub-Adviser Material Adverse Effect with
respect to the registration of the Sub-Adviser with the Commission.
(3) There are no legal or governmental proceedings pending or, to
the knowledge of the Sub-Adviser, threatened against the Sub-Adviser that
are required to be described in the Registration Statement or the
Prospectus but are not described as required or that could result in a
Sub-Adviser Material Adverse Effect or that may have a material, adverse
effect on the ability of the Sub-Adviser to perform its obligations under
this Agreement or the Sub-Advisory Agreement.
(4) Neither the execution, delivery or performance of this Agreement
or the Sub-Advisory Agreement by the Sub-Adviser, nor the consummation by
the Sub-Adviser of the transactions contemplated hereby or thereby (A)
requires the Sub-Adviser to obtain any consent, approval, authorization or
other order of, or registration or filing with, the Commission, FINRA, any
state securities commission, any national securities exchange, any
arbitrator, any court, regulatory body, administrative agency or other
governmental body, agency or official having jurisdiction over the
Sub-Adviser, or conflicts or will conflict with or constitutes or will
constitute a breach of or a default under, the limited liability company
agreement or bylaws or other organizational documents of the Sub-Adviser
or (B) conflicts or will conflict with or constitutes or will constitute a
breach of or a default under, the Sub-Advisory Agreement or any other
agreement, indenture, lease or other instrument to which the Sub-Adviser
is a party or by which the Sub-Adviser or any of its properties may be
12
bound, or violates or will violate any statute, law, regulation or
judgment, injunction, order or decree applicable to the Sub-Adviser or any
of its properties or will result in the creation or imposition of any lien
upon any property or assets of the Sub-Adviser pursuant to the terms of
any agreement or instrument to which it is a party or by which it may be
bound or to which any of the property or assets of the Sub-Adviser is
subject, except in any case under clause (B) for such conflict, breach,
default, violation or lien that, either alone or in the aggregate, does
not have or would not reasonably be expected to have a Sub-Adviser
Material Adverse Effect or a material adverse effect on the ability of the
Sub-Adviser to perform its obligations under this Agreement or the
Sub-Advisory Agreement. The Sub-Adviser is not subject to any order of any
court or of any arbitrator, regulatory body, administrative agency or
other governmental body, agency or official.
(5) The Sub-Adviser has full power and authority to enter into this
Agreement and the Sub-Advisory Agreement; the execution and delivery of,
and the performance by the Sub-Adviser of its obligations under, this
Agreement and the Sub-Advisory Agreement have been duly and validly
authorized by the Sub-Adviser; and this Agreement and the Sub-Advisory
Agreement have been duly executed and delivered by the Sub-Adviser and
constitute the valid and legally binding agreements of the Sub-Adviser,
enforceable against the Sub-Adviser in accordance with their terms, except
as rights to indemnity and contribution hereunder may be limited by
federal or state securities laws and subject to the qualification that the
enforceability of the Sub-Adviser's obligations hereunder and thereunder
may be limited by bankruptcy, fraudulent conveyance, insolvency,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and by general equitable principles whether
enforcement is considered in a proceeding in equity or at law.
(6) The Sub-Adviser has the financial resources necessary for the
performance of its services and obligations as contemplated in the
Registration Statement, the Disclosure Package and the Prospectus or under
this Agreement and the Sub-Advisory Agreement.
(7) The description of the Sub-Adviser in the Registration
Statement, the Disclosure Package and the Prospectus complied as of any
effective date of the Registration Statement and as of the date of the
Disclosure Package and the Prospectus, as applicable, and complies and
will comply, as of the date hereof, each Applicable Time, the Closing Time
and as of each Option Closing Time (if any), in all material respects with
the provisions of the Securities Act, Investment Company Act and the
Advisers Act 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 (in the case of the
Disclosure Package and the Prospectus, in light of the circumstances under
which they were made) not misleading.
(8) Since the date as of which information is given in the
Registration Statement, the Disclosure Package or the Prospectus, except
as otherwise stated therein, there has not occurred any event which would
reasonably be expected to have a material adverse effect on the ability of
the Sub-Adviser to perform its obligations under this Agreement or the
Sub-Advisory Agreement.
13
(9) The Sub-Adviser has such permits as are necessary to own its
property and to conduct its business in the manner described in the
Disclosure Package and the Prospectus; and the Sub-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
impairment of the rights of the Sub-Adviser under any such permit.
(10) None of this Agreement nor the Sub-Advisory Agreement violates
any applicable provisions of the Investment Company Act and the Advisers
Act.
(11) Except as stated in this Agreement, the Registration Statement,
the Disclosure Package or the Prospectus (or in any amendment or
supplement to any of the foregoing), the Sub-Adviser has not taken and
will not take, directly or indirectly, any action designed to or which
might reasonably be expected to cause or result in or which will
constitute stabilization or manipulation of the price of the Securities or
of any securities issued by the Fund to facilitate the sale or resale of
the Securities in violation of federal securities laws and the Sub-Adviser
is not aware of any such action taken or to be taken by any affiliates of
the Sub-Adviser.
(12) The Sub-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 by the Adviser and its supervised
persons.
(d) Certificates. Any certificate signed by any authorized officer
of the Fund or the Adviser delivered to the Underwriters pursuant to Section 10
of this Agreement 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 the Underwriters as to the matters covered
thereby.
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 the price per share set forth in Schedule B, the amount of Initial
Securities set forth in Schedule A opposite such Underwriter's name, plus any
additional number of Initial Securities which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 9 hereof.
(b) Over-Allotment 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 240,000 Over-Allotment Securities at the same price per
share as the Underwriters shall pay for the Initial Securities set forth in
Schedule B hereto. Said option may be exercised only to cover over-allotments in
the sale of the Initial Securities by the Underwriters. Said option may be
exercised in whole or in part at any time and from time to time on or before the
30th day after the date of the Prospectus upon notice by the Underwriters to the
Fund setting forth the number of shares of the Over-Allotment Securities as to
which the several Underwriters are exercising the option and the settlement time
14
and date. The number of Over-Allotment Securities to be purchased by each
Underwriter shall be the same percentage of the total number of shares of the
Over-Allotment Securities to be purchased by the several Underwriters as such
Underwriter is purchasing of the Initial Securities, plus any additional number
of Over-Allotment Securities which such Underwriter may become obligated to
purchase pursuant to the provisions of Section 9 hereof, subject to such
adjustments as the Underwriters in their absolute discretion shall make to
eliminate any fractional shares. Any such time and date of delivery (an "OPTION
CLOSING TIME") shall be determined by RBC, but shall not be later than seven
full business days after the exercise of said option, nor in any event prior to
the Closing Time.
(c) Payment. Payment of the purchase price for, and delivery of
certificates, if any, for the Initial Securities shall be made at the offices of
Xxxxxxx and Xxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, or at
such other place as shall be agreed upon by RBC and the Fund, at 10:00 A.M.
(Eastern time) on November 24, 2010 (unless postponed in accordance with the
provisions of Section 9), or such other time not later than ten business days
after such date as shall be agreed upon by the Underwriters and the Fund (such
time and date of payment and delivery being herein called "CLOSING TIME").
In addition, in the event that any or all of the Over-Allotment Securities
are purchased by the Underwriters, payment of the purchase price for, and
delivery of certificates, if any, for, such Over-Allotment Securities shall be
made at the above-mentioned offices, or at such other place as shall be agreed
upon by the Underwriters and the Fund, on each Option Closing Time as specified
in the notice from the Underwriters to the Fund.
Delivery of the Securities shall be made to the Underwriters for the
respective accounts of the several Underwriters against payment by the several
Underwriters of the purchase price thereof to or upon the order of the Fund by
wire transfer payable in same-day funds to an account designated by the Fund.
Delivery of the Initial Securities and the Over-Allotment Securities shall be
made through the facilities of The Depository Trust Company, unless the
Underwriters shall otherwise instruct. RBC may (but shall not be obligated to)
make payment of the purchase price for the Initial Securities or the
Over-Allotment Securities, if any, to be purchased by any Underwriter whose
funds have not been received by the Fund at the Closing Time or the relevant
Option Closing Time, 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 Over-Allotment Securities, if any, shall be in such
denominations and registered in such names as the Underwriters may request in
writing at least one full business day before the Closing Time or the relevant
Option Closing Time, as the case may be. The certificates, if any, for the
Initial Securities and the Over-Allotment Securities, if any, will be made
available for examination and packaging by the Underwriters in Boston,
Massachusetts not later than noon (Eastern time) on the business day prior to
the Closing Time or the relevant Option Closing Time, as the case may be.
3. Covenants of the Fund, the Adviser and the Sub-Adviser. The Fund, the
Adviser and (with respect to subsection (k) and (m) below only, and only as they
relate to the Sub-Adviser) the Sub-Adviser, jointly and severally, covenant and
agree with the Underwriters that:
15
(a) The Fund will promptly advise the Underwriters (i) when any
amendment to the Registration Statement shall have become effective or the
Prospectus, any amendment or supplement thereto, or any amendment or supplement
to the Preliminary Prospectus shall have been filed, (ii) of the receipt of any
comments from the Commission relating to the Registration Statement, Prospectus
of Preliminary Prospectus, (iii) of any request by the Commission for any
amendment or supplement to the Registration Statement, the Prospectus or the
Preliminary Prospectus, or for any additional information (iii) of the issuance
by the Commission of any order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of the Preliminary
Prospectus or the Prospectus or the institution or threatening of any proceeding
for such purposes, and (iv) the receipt by the Fund of any notification with
respect to the suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. During the time period when the Underwriters are required to deliver
the Prospectus, the Fund will not file any amendment to the Registration
Statement or any amendment or supplement to either the Base Prospectus or to the
Preliminary Prospectus or the Prospectus unless the Fund has furnished counsel
to the Underwriters with a copies of any such documents for its review within a
reasonable amount of time prior to such filing or use, as the case may be, and
will not file or use any such proposed amendments or supplements to which the
Underwriters or counsel for the Underwriters shall reasonably object. Subject to
the foregoing sentence, the Fund will promptly effect the filings required by
Rule 497 and will take such steps as they deem necessary to ascertain promptly
whether the form of prospectus transmitted for filing under Rule 497 was
received for filing by the Commission and, in the event that it was not, it will
promptly file such prospectus. The Fund will use its best efforts to prevent the
issuance of any order suspending the effectiveness of the Registration Statement
or of any order preventing or suspending the use of the Preliminary Prospectus
or the Prospectus and, if issued, to obtain as soon as possible the withdrawal
thereof. The Fund will timely file the requisite copies of the Prospectus with
the Commission pursuant to Rule 497(c) or Rule 497(h) under the Securities Act,
whichever is applicable or, if applicable, will timely file the certification
permitted by Rule 497(j) under the Securities Act and will advise the
Underwriters of the time and manner of such filing.
(b) At the request of the Underwriters, the Fund will furnish or
deliver to the Underwriters 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 or incorporated by
reference therein) and signed copies of all consents and certificates of
experts, and will also deliver to the Underwriters, without charge, a conformed
copy of the Registration Statement as originally filed and of each amendment
thereto (without exhibits) for each of the Underwriters, during the time period
when the Underwriters are required to deliver the Prospectuses. 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 IDEA, except to the extent permitted by
Regulation S-T.
(c) The Fund has delivered to each Underwriter, without charge, as
many copies of the Preliminary Prospectus as such Underwriter reasonably
requested, and the Fund hereby consents to the use of such copies for purposes
permitted by the Securities Act. The Fund will furnish to each Underwriter,
without charge, during the period when the Prospectus is required to be
delivered under the Securities Act or the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder (the "EXCHANGE ACT") such
16
number of copies of any amendments or supplements to the Preliminary Prospectus
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 transmitted copies thereof filed with the
Commission pursuant to IDEA, except to the extent permitted by Regulation S-T.
(d) The Fund will comply with all requirements imposed upon it by
the Securities Act and the Investment Company Act as from time to time in force,
so far as necessary to permit the completion of the distribution of the
Securities as contemplated by the provisions hereof, the Preliminary Prospectus
and the Prospectus. If at any time when the Prospectus is required by the
Securities 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 Securities Act or the
Investment Company Act, the Fund will promptly prepare and file with the
Commission, subject to Section 3(a) 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.
(e) If there occurs an event or development as a result of which the
Disclosure Package would include an untrue statement of a material fact or would
omit to state a material fact necessary in order to make the statements therein,
in light of the circumstances then prevailing, not misleading, the Fund will
promptly notify the Underwriters so that any use of the Disclosure Package may
cease until it is amended or supplemented (at the sole cost and expense of the
Fund).
(f) The Fund will use its best efforts to cause the Securities to be
listed on the NYSE Amex prior to the date the Securities are issued and to
qualify, if necessary, the Securities for offering and sale under the applicable
securities laws of such United States jurisdictions as the Underwriters
reasonably designate and to continue such qualifications in effect so long as
required for the distribution of the Securities; provided, however, that the
Fund shall not be required in connection therewith to qualify as a foreign
corporation or dealer in securities, file a general consent to service of
process in any jurisdiction, or meet any other requirement in connection with
this Section 3(f) deemed by the Fund to be unduly burdensome.
(g) As soon as practicable, but in no event later than the last day
of the 18th full calendar month following the calendar quarter in which the
effective date of the Registration Statement falls, the Fund will make generally
available to its security holders an earnings statement, which need not be
audited, which earnings statement shall satisfy the provisions of Section 11(a)
and Rule 158 of the Securities Act.
17
(h) The Fund will use the net proceeds received by it from the sale
of the Securities in the manner specified in the Preliminary Prospectus and the
Prospectus under "Use of Proceeds."
(i) The Fund will file with the Commission and the NYSE Amex all
documents pursuant to the Securities Act and the Investment Company Act and the
NYSE Amex in the manner and within the time periods required by the Securities
Act and the Investment Company Act and the NYSE Amex.
(j) The Fund (including its agents and representatives, other than
any Underwriter) will not make, use, prepare, authorize, approve or refer to any
written communication (as defined in Rule 405 under the Act), including any
sales materials, required to be filed with the Commission, that constitutes an
offer to sell or solicitation of an offer to buy Securities hereunder, except by
means of the Preliminary Prospectus or the Prospectus.
(k) During a period of 60 days from the date of the Prospectus (the
"Lock-Up Period"), the Fund, the Adviser or the Sub-Adviser will not, without
the prior written consent of the Underwriters and subject to the next sentence
of this Section, (A) directly or indirectly, offer, pledge, sell, contract to
sell, sell any option, rights or warrant to purchase, purchase any option or
contract to sell, grant any option, right or warrant to purchase or otherwise
transfer or dispose of Shares or any securities convertible into or exercisable
or exchangeable for Shares or file any registration statement under the
Securities Act with respect to any of the foregoing or (B) enter into any swap
or any other agreement or any transaction that transfers, in whole or in part,
directly or indirectly, the economic consequence of ownership of the Shares,
whether any such swap or transaction described in clause (A) or (B) above is to
be settled by delivery of Shares or such other securities, in cash or otherwise.
The restrictions in this Section shall apply to the Fund's existing "at the
market" Share offering pursuant to that certain Sales Agreement by and between
the Fund, the Adviser, the Sub-Adviser and JonesTrading Institutional Services
LLC (the "AT THE MARKET PROGRAM") for a period of 45 days from the date of the
Prospectus (the ("ATM LOCK-UP PERIOD"). In connection with the At the Market
Program, the parties hereby agree, that notwithstanding the restrictions of this
Section, the Fund shall be permitted to file an amendment to the Original
Registration Statement during the Lock-Up Period for purposes of updating
necessary disclosure relating to the At the Market Program. Notwithstanding the
foregoing, if (1) during the last 17 days of the Lock-Up Period or the ATM
Lock-Up Period, as applicable, the Fund issues an earnings release or material
news or a material event relating to the Fund, the Adviser or Sub-Adviser
occurs, or (2) prior to the expiration of the Lock-Up Period or the ATM Lock-Up
Period, as applicable, the Fund announces that it will release earnings results
or become aware that material news or a material event will occur during the
16-day period beginning on the last day of the Lock-Up Period or the ATM Lock-Up
Period, as applicable, then the Lock-Up Period or the ATM Lock-Up Period, as
applicable, shall automatically be extended and the restrictions imposed by this
Section 3(k) shall continue to apply until the expiration of the 18-day period
beginning on the issuance of the earnings release or the occurrence of the
material news or material event, as applicable, unless the Underwriters waive,
in writing, such extension. The restrictions in this Section shall not apply to
(1) the Securities to be sold hereunder, (2) the filing of any new shelf
registration statement or post-effective amendment to the Registration Statement
to increase the number of shares of common stock currently covered by the
Registration Statement or (3) common stock issued or, for avoidance of doubt,
purchased in the open market pursuant to the Dividend Reinvestment Plan (or any
18
Fund press release relating to such issuances or purchases) in the ordinary
course consistent with past practice.
(l) The Fund will not, directly or indirectly, (i) take any action
designed to cause or result in, or that constitutes or might reasonably be
expected to constitute, the stabilization or manipulation of the price of any
security of the Fund to facilitate the sale or resale of the Securities or (ii)
sell, bid for, or purchase the Securities, or pay anyone any compensation for
soliciting purchases of the Securities other than the Underwriters; PROVIDED,
HOWEVER, the Fund may issue and sell Shares pursuant to the Dividend
Reinvestment Plan (it being understood that the Sub-Adviser shall have no
obligation or liability under this paragraph with respect to acts or omissions
of the Fund and the Adviser, and their respective officers, trustees or
directors).
(m) During the term of this Agreement, the Fund, the Adviser and
Sub-Adviser will furnish to the Underwriters such information as reasonably
requested by the Underwriters regarding the Fund, the Adviser or Sub-Adviser.
4. Payment of Expenses.
(a) The Fund agrees to pay all costs, fees and expenses incurred in
connection with performance of its obligations hereunder and in connection with
the transactions contemplated under this Agreement, including, without
limitation, (i) all expenses incident to the issuance and delivery of the
Securities (including all printing and engraving costs), (ii) all fees and
expenses of the registrar and transfer agent for the Securities, (iii) all
necessary issue, transfer and other stamp taxes in connection with the issuance
and sale of the Securities, (iv) all actual and reasonable fees and expenses of
the Fund's counsel, the Underwriters' counsel up to $60,000 and the Fund's
independent public or certified public accountants and other advisors, (v) all
costs and expenses incurred in connection with the preparation, printing,
filing, shipping and distribution of the Registration Statement (including
financial statements, exhibits, schedules, consents and certificates of
experts), the Preliminary Prospectus, the Prospectus, and all amendments and
supplements thereto and this Agreement, as well as any other documents as may be
required in connection with the offering, purchase, sale, issuance or delivery
of the Securities (vi) all filing fees, distribution fees, attorneys' fees and
expenses incurred by the Fund or the Underwriters in connection with qualifying
or registering (or obtaining exemptions from the qualification or registration
of) all or any part of the Securities for offer and sale under the state
securities or blue sky laws, including, if requested by the Underwriters, the
preparation by counsel for the Underwriters and printing of a "Blue Sky Survey"
or other memorandum, and any supplements thereto, advising the Underwriters of
such qualifications, registrations and exemptions, (vii) the fees and expenses
associated with listing the Securities on the NYSE Amex, (viii) the filing fees
incident to, and the reasonable fees and disbursements of counsel to the
Underwriters in connection with, the review by FINRA of the terms of the sale of
the Securities, and (ix) all other fees, costs and expenses incident to the
performance by the Fund of its obligations hereunder.
(b) If this Agreement is terminated by the Underwriters in
accordance with the provisions of Section 5 or Section 8(a) hereof, the Fund,
the Adviser and the Sub-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.
19
5. Conditions to Underwriters' Obligations. The obligations of the several
Underwriters hereunder will be subject to the accuracy and completeness of the
representations and warranties made by the Fund, the Adviser and the Sub-Adviser
contained in Section 1 herein as of the Applicable Time, the Closing Time and
any Option Closing Time, to the due performance by the Fund and the Adviser of
their respective obligations hereunder, and to the continuing satisfaction (or
waiver by the Underwriters in their sole discretion) of the following additional
conditions:
(a) The Registration Statement, including any Rule 462(d)
Registration Statement, shall have become effective and all filings with the
Commission required by Rule 497 under the Securities Act to have been filed in
connection with the distribution of the Securities shall have been made within
the applicable time period prescribed for such filing by Rule 497.
(b) At the Closing Time, none of the following events shall have
occurred and be continuing: (i) receipt by the Fund of any request for
additional information from the Commission or any other federal or state
governmental authority during the period of effectiveness of the Registration
Statement, the response to which would require any amendments or supplements to
the Registration Statement, the Preliminary Prospectus or the Prospectus; (ii)
the issuance by the Commission or any other federal or state governmental
authority of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose, including any
notice objecting to the use of the Registration Statement or order pursuant to
Section 8(e) of the Investment Company Act having been issued and proceedings
therefor initiated, or to the knowledge of the Fund, threatened by the
Commission; (iii) receipt by the Fund of any notification with respect to the
suspension of the qualification or exemption from qualification of any of the
Securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; (iv) the occurrence of any event that makes any
statement made in the Registration Statement, the Preliminary Prospectus, the
Disclosure Package or the Prospectus untrue in any material respect or that
requires the making of any changes in the Registration Statement, the
Preliminary Prospectus, the Disclosure Package or Prospectus so that, in the
case of the Registration Statement, it will not contain any untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading and, that in the case
of the Preliminary Prospectus, the Disclosure Package and/or the Prospectus, it
will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; and (v) the Fund's reasonable determination that a post-effective
amendment to the Registration Statement would be appropriate.
(c) The Underwriters shall not have advised the Fund that the
Registration Statement, Preliminary Prospectus, the Disclosure Package or
Prospectus, or any amendment or supplement thereto, contains an untrue statement
of a material fact regarding the Underwriters that in the Underwriters' opinion
is material, or omits to state a fact regarding the Underwriters that in the
Underwriters' opinion is material and is required to be stated therein or is
necessary to make the statements therein, in light of the circumstances under
which it was made, not misleading.
20
(d) At the Closing Time, there shall not have been any material
change in the authorized capital stock of the Fund or any Fund Material Adverse
Effect, Adviser Material Adverse Effect or Sub-Adviser Material Adverse Effect,
or any development that may reasonably be expected to cause a Fund Material
Adverse Effect, Adviser Material Adverse Effect or Sub-Adviser Material Adverse
Effect, or a downgrading in or withdrawal of the rating assigned to any of the
Fund's debt or preferred securities by any rating organization or a public
announcement by any rating organization that it has under surveillance or review
its rating of any of the Fund's debt or preferred securities, the effect of
which, in the case of any such action by a rating organization described above,
in the sole judgment of the Underwriters (without relieving the Fund of any
obligation or liability it may otherwise have), is so material as to make it
impracticable or inadvisable to proceed with the offering and sale of the
Securities on the terms and in the manner contemplated in the Disclosure Package
and the Prospectus.
(e) At the Closing Time, the Underwriters shall have received the
favorable opinions, dated as of the Closing Time, of Xxxxxxx and Xxxxxx LLP and
Xxxxxxx XxXxxxxxx LLP, special Massachusetts Fund counsel (collectively, "FUND
COUNSEL"), in substantially the form attached hereto as Exhibit 5(e), together
with signed or reproduced copies of such letters for each of the other
Underwriters, to such further effect as counsel to the Underwriters may
reasonably request.
(f) At the Closing Time, the Underwriters shall have received the
favorable opinion, dated as of the Closing Time, of Xxxxxxx and Xxxxxx LLP,
counsel to the Adviser ("ADVISER COUNSEL"), in substantially the form attached
hereto as Exhibit 5(f), together with signed or reproduced copies of such
letters for each of the other Underwriters, to such further effect as counsel to
the Underwriters may reasonably request.
(g) At the Closing Time, the Underwriters shall have received the
favorable opinion, dated as of the Closing Time, of Dechert LLP, counsel to the
Sub-Adviser ("SUB-ADVISER COUNSEL"), in substantially the form attached hereto
as Exhibit 5(g), together with signed or reproduced copies of such letters for
each of the other Underwriters, to such further effect as counsel to the
Underwriters may reasonably request.
(h) At the Closing Time, the Underwriters shall have received the
favorable opinion, dated as of the Closing Time, of Xxxxxxxx Xxxxxxx LLP,
counsel for the Underwriters.
(i) At the Closing Time, the Underwriters shall have received (1)
certificates of the Chief Financial Officer or Chief Accounting Officer of the
Fund, the Adviser and the Sub-Adviser, each dated as of the Closing Time, in the
form attached hereto as Exhibit 5(i) and (2) certificates of the Secretary of
the Fund, the Adviser and the Sub-Adviser, each dated as of the Closing, in form
and substance reasonably satisfactory to the Underwriter.
(j) At the time of the execution of this Agreement, the Underwriters
shall have received from Deloitte & Touche LLP a letter dated such date, in form
and substance satisfactory to the Underwriters, together with signed or
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 contained in the Registration Statement, the
Preliminary Prospectus and the Prospectus.
21
(k) At the Closing Time, the Underwriters shall have received from
Deloitte & Touche LLP a letter dated as of the Closing Time, in form and
substance satisfactory to the Underwriters, to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (j) of this
Section, except that the specified date referred to shall be a date not more
than three business days prior to the Closing Time.
(l) At the Closing Time, the Securities shall have been approved for
listing on the NYSE Amex, subject only to official notice of issuance.
(m) At the time of the execution of this Agreement, the Company
shall have procured for the benefit of the Underwriters lock-up agreements, in
the form of Schedule C attached hereto, from the following Trustees of the Fund:
Xxxxxxx X. Xxxxxxxx, Xxxxxx X. Xxxxxx and Xxxx X. Xxxxxxx.
(n) In the event that the Underwriters exercise their option
provided in Section 2(b) hereof to purchase all or any portion of the
Over-Allotment Securities, the obligations of the several Underwriters to
purchase the applicable Over-Allotment 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 Time, the Underwriters
shall have received:
(1) Certificates, dated such Option Closing Time, to the effect set
forth in Section 5(i) hereof, and signed by the Chief Financial Officer or
Chief Accounting Officer of the Fund, the Adviser and the Sub-Adviser,
except that the references in such certificate to the Closing Time shall
be changed to refer to such Option Closing Time.
(2) The favorable opinions of Fund Counsel, in form and substance
satisfactory to counsel for the Underwriters, dated such Option Closing
Time, relating to the Over-Allotment Securities to be purchased on such
Option Closing Time and otherwise to the same effect as the opinion
required by Section 5(e) hereof.
(3) The favorable opinion of Adviser Counsel, in form and substance
satisfactory to counsel for the Underwriters, dated such Option Closing
Time, relating to the Over-Allotment Securities to be purchased on such
Option Closing Time and otherwise to the same effect as the opinion
required by Section 5(f) hereof.
(4) The favorable opinion of Sub-Adviser Counsel, in form and
substance satisfactory to counsel for the Underwriters, dated such Option
Closing Time, relating to the Over-Allotment Securities to be purchased on
such Option Closing Time and otherwise to the same effect as the opinion
required by Section 5(g) hereof.
(5) The favorable opinion of Xxxxxxxx Xxxxxxx LLP, counsel for the
Underwriters, dated such Option Closing Time, relating to the
Over-Allotment Securities to be purchased on such Option Closing Time and
otherwise to the same effect as the opinion required by Section 5(h)
hereof.
(6) A letter from Deloitte & Touche LLP, in form and substance
satisfactory to the Underwriters and dated such Option Closing Time,
substantially in the same form and substance as the letter furnished to
the Underwriters pursuant to Section 5(k) hereof, except that the
22
"specified date" in the letter furnished pursuant to this paragraph shall
be a date not more than five days prior to such Option Closing Time.
(o) At the Closing Time, the Fund shall have furnished to the
Underwriters such appropriate further information, certificates and documents as
the Underwriters may reasonably request. All such opinions, certificates,
letters and other documents will be in compliance with the provisions hereof.
The Fund will furnish the Underwriters with such conformed copies of such
opinions, certificates, letters and other documents as the Underwriters shall
reasonably request.
(p) At the Closing Time and at each Option Closing Time, 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, the Adviser or the Sub-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 Underwriters and counsel for the Underwriters.
(q) The Securities shall have been approved for listing on the NYSE
Amex, subject only to notice of issuance.
(r) There shall not have ocurred any event that would permit the
Underwriters to terminate this Agreement pursuant to Section 8.
(s) Prior to the date hereof, FINRA shall have confirmed that it has
no objection with respect to the fairness and reasonableness of the underwriting
terms and arrangements set forth herein.
(t) 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 Over-Allotment Securities, on an Option
Closing Time which is after the Closing Time, the obligations of the several
Underwriters to purchase the relevant Over-Allotment Securities, may be
terminated by the Underwriters by notice to the Company at any time at or prior
to the Closing Time or such Option Closing Time, as the case may be, and such
termination shall be without liability of any party to any other party except as
provided in Section 4 and except that Sections 1, 6, 7 and 11 shall survive any
such termination and remain in full force and effect.
6. Indemnification and Contribution.
(a) Indemnification by the Fund, the Adviser and Sub-Adviser. The
Fund, the Adviser and Sub-Adviser, jointly and severally, agree to indemnify and
hold harmless each Underwriter, its partners, directors, members, officers and
each person, if any, who controls any Underwriter within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act as follows:
23
(1) 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) including any information deemed to
be a part thereof pursuant to Rule 430A or Rule 497 under the Securities
Act, 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 the Preliminary Prospectus, any
sales material, the Disclosure Package or the Prospectus (or any amendment
or supplement thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(2) 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
(3) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by the Underwriters),
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 (1) or (2)
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,
the Adviser or Sub-Adviser by any Underwriter expressly for use in the
Registration Statement (or any amendment thereto), in the Preliminary
Prospectus, any sales material, the Disclosure Package or in any Prospectus (or
any amendment or supplement thereto).
(b) Indemnification by the Underwriters. Each Underwriter agrees to
indemnify and hold harmless each of the Fund, the Adviser and the Sub-Adviser,
each of their partners, directors, trustees, members, each of their officers who
signed the Registration Statement, and each person, if any, who controls the
Fund, the Adviser or Sub-Adviser within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange 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), the Preliminary Prospectus,
any sales material, the Disclosure Package or any Prospectus (or any amendment
or supplement thereto) in reliance upon and in conformity with written
information furnished to the Fund, the Adviser or the Sub-Adviser by such
Underwriter expressly for use in the Registration Statement (or any amendment
24
thereto), such Preliminary Prospectus, sales material, Disclosure Package or
Prospectus (or any amendment or supplement thereto). The Fund, the Adviser and
Sub-Adviser acknowledge that the statements set forth in the Preliminary
Prospectus and the Prospectus in (i) the last sentence of the paragraph of the
cover page regarding delivery of the Securities and (ii) under the heading
"Underwriting," (A) the list of Underwriters and their respective participation
in the sale of the Securities, (B) the sentences related to concessions and
re-allowances and (C) the paragraph related to stabilization, syndicate covering
transactions and penalty bids constitute the only information furnished in
writing by or on behalf of the several Underwriters for inclusion in the
Disclosure Package or the Prospectus.
(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 Underwriters, its partners, directors, members, officers,
and each person, if any, who controls any Underwriter within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act shall be
selected by the Underwriters; counsel to the Fund, its partners, 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 Securities Act or Section 20 of the Exchange Act shall be selected by the
Fund; counsel to the Adviser and each person, if any, who controls the Adviser
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act shall be selected by the Adviser and counsel to the Sub-Advisor and
each person, if any, who controls the Sub-Advisor within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act shall be selected by
the Sub-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 Securities Act or Section 20 of the Exchange 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 partners, 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 Securities Act or
Section 20 of the Exchange Act, the fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for the
Adviser, the fees and expenses of more than one counsel (in addition to any
local counsel) separate from their own counsel for the Sub-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 hereof
(whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
25
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)(2) 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.
(e) Other Agreements with Respect to Indemnification and
Contribution. The provisions of this Section 6 hereof shall not affect any
agreements among the Fund, the Adviser and Sub-Adviser with respect to
indemnification of each other or contribution between themselves.
(f) Contribution.
(1) If the indemnification provided for in this 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, the Adviser and Sub-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, the Adviser and
Sub-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.
(2) The relative benefits received by the Fund, the Adviser and
Sub-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 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.
(3) The relative fault of the Fund, the Adviser and Sub-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
26
state a material fact relates to information supplied by the Fund, by the
Adviser, by the Sub-Adviser or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(4) The Fund, the Adviser, the Sub-Adviser and the Underwriters
agree that it would not be just and equitable if contribution pursuant to
this Section 6(f) 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 6(f). The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 6(f) 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.
(5) Notwithstanding the provisions of this Section 6(f), 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 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.
(6) No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(7) For purposes of this Section 6(f), each person, if any, who
controls an Underwriter within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act shall have the same rights to
contribution as such Underwriter, and each person who controls the Fund,
any Adviser or Sub-Adviser within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, each officer of the
Fund, the Adviser and the Sub-Adviser and each trustee, director or member
of the Fund, the Adviser and the Sub-Adviser shall have the same rights to
contribution as the Fund, the Adviser and the Sub-Adviser. The
Underwriters' respective obligations to contribute pursuant to this
Section 6(f) are several in proportion to the number of Initial Securities
set forth opposite their respective names in Schedule A hereto and not
joint.
(g) The indemnity and contribution agreements contained in this
Section 6 and the representations and warranties of the Fund, the Adviser and
the Sub-Adviser set forth in this Agreement shall remain operative and in full
force and effect, regardless of (i) any investigation made by or on behalf of
any Underwriter, its partners, officers or employees, or any person controlling
such Underwriter, within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, and or by or on behalf of the Fund and/or any
Adviser or Sub-Adviser, its directors and officers or any person who controls
the Fund, and/or any Adviser or Sub-Adviser within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act, (ii) delivery and
acceptance of the Securities and payment therefor, or (iii) any termination of
27
this Agreement. A successor to any Underwriter or to the Fund or the Adviser or
the Sub-Adviser, its respective directors or officers, or any person controlling
the Fund, or the Adviser or Sub-Adviser, shall be entitled to the benefits of
the indemnity, contribution and reimbursement agreements contained in this
Section 6.
7. Representations and Agreements to Survive Delivery. All representations and
warranties of the Fund, the Adviser and the Sub-Adviser herein or in
certificates delivered pursuant hereto shall survive, as of their respective
dates, regardless of (i) any investigation made by or on behalf of the
Underwriters, any controlling persons, or the Fund and/or any Adviser or
Sub-Adviser (or any of their respective officers, directors or controlling
persons), (ii) delivery and acceptance of the Securities to the Underwriters or
(iii) any termination of this Agreement.
8. Termination.
(a) The Underwriters may terminate this Agreement, by notice to the
Fund, at any time on or prior to the Closing Time (and, if any Over-Allotment
Securities are to be purchased on an Option Closing Time which occurs after the
Closing Time, the Underwriters may terminate their obligations to purchase such
Over-Allotment Securities, by notice to the Fund, at any time on or prior to
such Option Closing Time) (i) if there has been, since the respective dates as
of which information is given in the Preliminary Prospectus or the Prospectus,
any Fund Material Adverse Effect or any 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, any calamity or crisis, any acts of
terrorism, 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
Underwriters, 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 Amex, or if trading generally on the New York Stock
Exchange, NYSE Amex or in the Nasdaq Global 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, FINRA 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.
(b) If this Agreement is terminated pursuant to this Section 8, 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, 4, 6, 8, and
11 hereof shall survive such termination and remain in full force and effect.
9. Default by One or More of the Underwriters. If one or more of the
Underwriters shall fail at the Closing Time or an Option Closing Time to
purchase the Securities which it or they are obligated to purchase under this
Agreement (the "DEFAULTED SECURITIES"), the remaining Underwriters 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 of
the Defaulted Securities in such amounts as may be agreed upon and upon the
28
terms herein set forth; if, however, the Underwriters 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 Time which occurs after the Closing Time, the obligation of
the Underwriters to purchase and of the Fund to sell the Over-Allotment
Securities to be purchased and sold on such Option Closing Time, shall terminate
without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 9 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 Time which is after the
Closing Time, which does not result in a termination of the obligation of the
Underwriters to purchase and the Company to sell the relevant Over-Allotment
Securities, as the case may be, the Underwriters shall have the right to
postpone the Closing Time or the relevant Option Closing Time, 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 9.
10. Notices. All notices or other communications required or permitted to be
given by any party to any other party pursuant to the terms of this Agreement
shall be in writing and if sent to the Underwriters shall be delivered to RBC
Capital Markets, LLC, 3 World Financial Center, 8th Floor, 000 Xxxxx
Xxxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxx Xxxxxx, Managing Director, with a
copy to Xxxxxxxx Xxxxxxx LLP, 0000 Xxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx 00000, fax
no. (000) 000-0000, Attention: Xxxxx X. Xxxxxx; if sent to the Fund or, the
Adviser, shall be delivered to First Trust Advisors L.P., Attention: General
Counsel, fax no.: (000) 000-0000, with a copy to Xxxxxxx and Xxxxxx LLP,
Attention: Xxxx X. Xxxx, telephone (000) 000-0000 fax: (000) 000-0000, or if
sent to the Sub-Adviser, shall be delivered to Energy Income Partners LLC,
Attention: Xxx Xxxxxxx, fax: (000) 000-0000. Each party to this Agreement may
change such address for notices by sending to the parties to this Agreement
written notice of a new address for such purpose. Each such notice or other
communication shall be deemed given (i) when delivered personally or by
verifiable facsimile transmission (with an original to follow) on or before 4:30
p.m., New York City time, on a Business Day or, if such day is not a Business
Day, on the next succeeding Business Day, (ii) on the next Business Day after
timely delivery to a nationally-recognized overnight courier and (iii) on the
Business Day actually received if deposited in the U.S. mail (certified or
registered mail, return receipt requested, postage prepaid). For purposes of
this Agreement, "BUSINESS DAY" shall mean any day on which the NYSE Amex and
commercial banks in the City of New York are open for business.
29
11. Successors. This Agreement shall inure to the benefit of and be binding
upon the Underwriters, the Fund, the Adviser and the Sub-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 Section 6 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, the Adviser and the Sub-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.
12. Partial Unenforceability. The invalidity or unenforceability of any
Section, paragraph or provision of this Agreement shall not affect the validity
or enforceability of any other Section, paragraph or provision hereof. If any
Section, paragraph or provision of this Agreement is for any reason determined
to be invalid or unenforceable, there shall be deemed to be made such minor
changes (and only such minor changes) as are necessary to make it valid and
enforceable.
13. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS FORMED
AND TO BE PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICTS OF LAW PRINCIPLES OR RULES THEREOF, TO THE EXTENT SUCH PRINCIPLES
WOULD REQUIRE OR PERMIT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
14. Submission to Jurisdiction. Each of the parties hereto irrevocably agrees
that any suit, action or proceeding arising out of or relating to this Agreement
or the transactions contemplated hereby may be instituted in any United States
federal and New York State courts located in New York, New York, irrevocably
waives, to the fullest extent it may effectively do so, any objection which it
may now or hereafter have to the laying of venue of any such proceeding; and
irrevocably submits to the non-exclusive jurisdiction of such courts in any such
suit, action or proceeding brought in such a court and waives any other
requirements of or objections to personal jurisdiction with respect thereto.
15. General Provisions. This Agreement constitutes the entire agreement of the
parties to this Agreement and supersedes all prior written or oral and all
contemporaneous oral agreements, understandings and negotiations with respect to
the subject matter hereof. This Agreement may be executed in two or more
counterparts, each one of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument. This Agreement
may not be amended or modified unless in writing by all of the parties hereto,
and no condition herein (express or implied) may be waived unless waived in
writing by each party whom the condition is meant to benefit. The Section
headings, titled and captions herein are for the convenience of the parties only
and shall not affect the construction or interpretation of this Agreement.
30
16. Waiver of Jury Trial. The Fund, the Adviser, the Sub-Adviser and the
Underwriters hereby irrevocably waive any right to a trial by jury in respect of
any claim based upon or arising out of this Agreement or any transaction
contemplated hereby.
17. Absence of Fiduciary Relationship. The Fund, the Adviser and Sub-Adviser
acknowledge that in connection with the offering of the Securities: (a) the
Underwriters have acted at arms length and owe no fiduciary duties to, the Fund,
the Adviser and Sub-Adviser or any other person; (b) the Underwriters owe the
Fund, the Adviser and Sub-Adviser only those duties and obligations set forth in
this Agreement and prior written agreements (to the extent not superseded by
this Agreement), if any, and (iii) the Underwriters may have interests that
differ from those of the Funds, the Adviser and Sub-Adviser. The Fund, the
Adviser and Sub-Adviser waive to the full extent permitted by applicable law any
claims any of them may have against any Underwriter arising from an alleged
breach of fiduciary duty in connection with the offering of the Securities as
contemplated by this Agreement.
18. Limitation of Liability. The Declaration of Trust is on file with the
Secretary of The Commonwealth of Massachusetts. This Agreement is executed on
behalf of the Fund by the Fund's officers as officers and not individually and
the obligations imposed upon the Fund by this Agreement are not binding upon any
of the Fund's shareholders individually but are binding only upon the assets and
property of the Fund.
..
[REMAINDER OF PAGE INTENTIONALLY BLANK]
31
If the foregoing correctly sets forth the understanding between the Fund,
the Adviser, the Sub-Adviser and the Underwriters, please so indicate in the
space provided below for that purpose, whereupon this letter shall constitute a
binding agreement between the Fund, the Adviser, the Sub-Adviser and the
Underwriters.
Very truly yours,
ENERGY INCOME AND GROWTH FUND
By: /s/ Xxxxx X. Xxxxx
---------------------------
Name: Xxxxx X. Xxxxx
Title: President
FIRST TRUST ADVISORS L.P.
By: /s/ Xxxxx X. Xxxxx
---------------------------
Name: Xxxxx X. Xxxxx
Title: President
ENERGY INCOME PARTNERS LLC
By: /s/ Xxxxx Xxxxxxxxx
---------------------------
Name: Xxxxx Xxxxxxxxx
Title: Treasurer, Member
32
The foregoing Underwriting Agreement is hereby confirmed and accepted by
the Underwriters as of the date first above written.
RBC Capital Markets, LLC
BB&T Capital Markets, a division of Xxxxx & Xxxxxxxxxxxx, LLC
Xxxxxx Xxxxxxxxxx Xxxxx LLC
Xxxxxxxxx Xxxxxxxx & Co. Inc.
Maxim Group LLC
Xxxxxxxxxxx & Co. Inc.
Wedbush Securities Inc.
Xxxxxxxxxx Securities, Inc.
On their behalf
By: RBC Capital Markets, LLC
By: /s/ Xxxxx Xxxxxx
-----------------------------
Name: Xxxxx Xxxxxx
Title: Managing Director
33
SCHEDULE A
NAME OF UNDERWRITER NO. OF INITIAL SECURITIES
------------------- -------------------------
RBC Capital Markets, LLC...................................................... 526,028
Xxxxxxxxxxx & Co. Inc. ....................................................... 350,685
BB&T Capital Markets, a division of Xxxxx & Xxxxxxxxxxxx, LLC................. 131,507
Xxxxxx Xxxxxxxxxx Xxxxx LLC................................................... 65,753
Ladenburg Xxxxxxxx & Co. Inc.................................................. 219,178
Maxim Group LLC ........................................................ 109,589
Wedbush Securities Inc........................................................ 56,986
Xxxxxxxxxx Securities, Inc.................................................... 140,274
--------------------------
TOTAL: 1,600,000
==========================
A-1
SCHEDULE B
PRICE-RELATED INFORMATION
-------------------------
ENERGY INCOME AND GROWTH FUND
Public offering price: $27.25 per share
Underwriting discount: $1.09 per share
Concession to selling group: $.654 per share
Proceeds, before expenses to the Company: $26.16 per share
Shares initially offered: 1,500,000
Final Shares offered: 1,600,000
Over-allotment option: 240,000 shares
Trade date: November 19, 2010
Closing Time: November 24, 2010
B-1
SCHEDULE C
FORM OF LOCK-UP AGREEMENT
-------------------------
ENERGY INCOME AND GROWTH FUND
LOCK-UP AGREEMENT
November 19 2010
RBC Capital Markets, LLC
BB&T Capital Markets, a division of Xxxxx & Xxxxxxxxxxxx, LLC
Xxxxxx Xxxxxxxxxx Xxxxx LLC
Xxxxxxxxx Xxxxxxxx & Co. Inc.
Maxim Group LLC
Xxxxxxxxxxx & Co. Inc.
Wedbush Securities Inc.
Xxxxxxxxxx Securities, Inc.
c/o RBC Capital Markets, LLC
Xxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Re: Lock-Up Agreement for shares of Energy Income and Growth Fund
Ladies & Gentlemen:
The undersigned is an owner of record or beneficially of certain common
shares of beneficial interest ("COMMON STOCK") of Energy Income and Growth Fund,
a Massachusetts business trust (the "COMPANY") or securities convertible into or
exchangeable or exercisable for shares of Common Stock (collectively, the
"SECURITIES"). The Company proposes to carry out a public offering of Common
Stock (the "OFFERING") for which you will act as the representative to the
several underwriters (the "UNDERWRITERS"). The undersigned recognizes that the
Offering will be of benefit to the undersigned and will benefit the Company by,
among other things, raising additional capital for its operations. The
undersigned acknowledges that you are relying on the representations and
agreements of the undersigned contained in this letter agreement (this
"AGREEMENT") in carrying out the Offering and in entering into an Underwriting
Agreement (the "UNDERWRITING AGREEMENT") with the Company with respect to the
Offering.
In consideration of the foregoing, the undersigned hereby agrees that the
undersigned will not (and will cause any spouse or immediate family member of
the spouse or the undersigned living in the undersigned's household and any
trustee of any trust that holds Securities for the benefit of the undersigned or
such spouse or family member not to), without the prior written consent of RBC
Capital Markets, LLC on behalf of the Underwriters (which consent may be
withheld in its sole discretion), directly or indirectly, (1) offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any
C-1
option or contract to sell, grant any option, right or warrant to purchase or
otherwise transfer or dispose of (or enter into any transaction or device that
is designed to, or could be expected to, result in the disposition by any person
at any time in the future of) any Securities (including, without limitation,
shares of Common Stock that may be deemed to be beneficially owned by the
undersigned in accordance with the rules and regulations of the Securities and
Exchange Commission), (2) enter into any swap or other derivatives transaction
that transfers to another, in whole or in part, any economic benefits or risks
of ownership of shares of the Securities, whether any such transaction described
in clause (1) or (2) above is to be settled by delivery of the Common Stock or
such other Securities, in cash or otherwise, or (3) publicly announce an
intention to do any of the foregoing, for a period commencing on the date hereof
and continuing through the close of trading on the date 45 days after the public
offering date set forth on the final prospectus used to sell the Securities in
the Offering (the "LOCK-UP PERIOD") pursuant to the Underwriting Agreement.
The foregoing restrictions have been expressly agreed to by the
undersigned so as to preclude the undersigned (or such spouse, family member or
trustee) from engaging in any hedging or other transaction that is designed to
or reasonably expected to lead to or result in a disposition of Securities
during the Lock-up Period, even if such Securities would be disposed of by
someone other than such holder. Such prohibited hedging or other transactions
would include, without limitation, any short sale (whether or not against the
box) or any purchase, sale or grant of any right (including, without limitation,
any put or call option) with respect to any security (other than a broad-based
market basket or index) that includes, relates to or derives any significant
part of its value from the Securities. In addition, the undersigned agrees that,
without the prior written consent of RBC Capital Markets, LLC on behalf
of the Underwriters, it will not, during the Lock-Up Period, make any demand for
or exercise any right with respect to, the registration of any Securities or any
security convertible into or exercisable or exchangeable for the Securities.
The foregoing shall not apply to the following: (1) the registration of or
sale to the Underwriters of Securities pursuant to the Offering and the
Underwriting Agreement, (2) the issuance, or, for avoidance of doubt, the
purchase in the open market, of shares of Common Stock pursuant to Company's
dividend reinvestment plan, in the ordinary course consistent with past practice
(3) bona fide gifts, succession and inheritance by will or intestacy, (4)
transfers to trusts for the benefit of the undersigned, any spouse, immediate
family member or a charitable, educational or religious institution by the
undersigned, or (5) transfers made with the prior written consent of RBC Capital
Markets, LLC on behalf of the Underwriters; provided, however, that in
the case of a transfer under clause (3) or (4), the transferee(s)/donee(s) shall
agree in writing prior to such disposition to be bound by the restrictions set
forth herein and to the extent any interest in the Securities is retained by the
undersigned (or such spouse or family member), the Securities shall remain
subject to the restrictions contained in this Agreement.
Notwithstanding the foregoing, if (1) during the last 17 days of the
Lock-up Period, the Company issues an earnings release or material news or a
material event relating to the Company occurs, or (2) prior to the expiration of
the Lock-up Period, the Company announces that it will release earnings results
or become aware that material news or a material event will occur during the
16-day period beginning on the last day of the Lock-up Period, then the Lock-up
Period shall automatically be extended and the restrictions imposed by this
Agreement shall continue to apply until the expiration of the 18-day period
beginning on the issuance of the earnings release or the occurrence of the
C-2
material news or material event, as applicable, unless RBC Capital Markets, LLC,
on behalf of the Underwriters, waives, in writing, such extension.
The undersigned also agrees and consents (1) with respect to Securities
held of record by the undersigned, to the entry of stop transfer instructions
with the Company's transfer agent and registrar against the transfer of such
Securities as described herein except in compliance with this Agreement, and (2)
with respect to Securities beneficially owned, but not held of record by, the
undersigned, to cause the record holder of such Securities to agree and consent
to the entry of stop transfer instructions with the Company's transfer agent and
registrar against the transfer of such Securities as described herein except in
compliance with this Agreement.
It is understood that, if (1) the Company notifies the undersigned that it
does not intend to proceed with the Offering, (2) the registration statement
filed with the Securities and Exchange Commission with respect to the Offering
is withdrawn, or (3) for any reason the Underwriting Agreement shall terminate
or be terminated prior to payment for and delivery of the Securities to be sold
thereunder, the undersigned will be released from his obligations under this
Agreement.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York applicable to contracts formed and to be performed
entirely within the State of New York, without regard to conflicts of law
principles or rules thereof, to the extent such principles would require or
permit the application of the laws of another jurisdiction.
This Agreement is irrevocable and will be binding on the undersigned and
the respective successors, heirs, personal representatives and assigns of the
undersigned.
[Remainder of Page Intentionally Left Blank]
C-3
Very truly yours,
Name:
Title:
C-4
EXHIBIT 5(E)
FORM OF OPINION OF FUND COUNSEL
i. The Registration Statement and all post-effective amendments thereto,
if any, are effective under the Securities Act and no stop order with respect
thereto has been issued and no proceeding for that purpose has been instituted
or, to the best of our knowledge, is threatened by the Commission. The filing of
the Preliminary Prospectus and the Prospectus or any supplements thereto
required under Rule 497 under the Securities Act prior to the date hereof have
been made in the manner and within the time required by such rule.
ii. The Fund is duly licensed and qualified to do business and in good
standing in each jurisdiction in which its ownership or leasing of property or
its conducting of business as described in the Registration Statement, the
Disclosure Package and Prospectus (and any amendment or supplement thereto)
requires such qualification; and the Fund owns, possesses or has obtained and
currently maintains all governmental licenses, permits, consents, orders,
approvals and other authorizations necessary to carry on its business as
described in the Prospectus, except where the failure to obtain such licenses,
permits, consents, orders, approvals and other authorizations, either alone or
in the aggregate, would not have a Fund Material Adverse Effect. The Fund has no
subsidiaries.
iii. The Shares conform in all material respects to the description of
them in the Disclosure Package and the Prospectus under the caption "Description
of Shares - Common Shares" in the Disclosure Package and the Prospectus. All of
the outstanding Shares have been duly authorized and are validly issued, fully
paid and (except as described in the Disclosure Package and the Prospectus under
the caption "Certain Provisions in the Declaration of Trust and By-Laws")
nonassessable. The Securities have been duly authorized for issuance and sale
pursuant to this Agreement and when issued and delivered against payment
therefore in accordance with the Agreement will have been validly issued and
will be fully paid and nonassessable (except as described in the Disclsoure
Package and the Prospectus under the caption "Certain Provisions in the
Declaration of Trust and By-Laws"). No person is entitled to any preemptive or
other similar rights with respect to the Securities under the Declaration of
Trust or Bylaws of the Fund or Massachusetts law or, to counsel's knowledge,
otherwise.
iv. The Fund is duly registered with the Commission under the Investment
Company Act as a non-diversified, closed-end management investment company and
all action under the Act and the Investment Company Act, as the case may be,
necessary to make the public offering and consummate the sale of the Securities
as provided in the Agreement has or will have been taken by the Fund. To such
counsel's knowledge, the Fund has not received any notice from the Commission
pursuant to Section 8(e) of the Investment Company Act with respect to the
registration of the Fund with the Commission under the Investment Company Act.
v. The Fund has full power and authority to enter into this Agreement and
each of the Fund Agreements and to perform all of the terms and provisions
thereof to be carried out by it and (A) each Fund Agreement and the Agreement
has been duly and validly authorized, executed and delivered by the Fund, (B)
each Fund Agreement and the Agreement complies in all material respects with all
applicable provisions of the Act, the Investment Company Act and the Advisers
Act, as the case may be, and (C) assuming due authorization, execution and
delivery by the other parties thereto, each Fund Agreement constitutes the
legal, valid and binding obligation of the Fund enforceable against the Fund in
accordance with its terms, subject, as to enforcement, to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally and to general
equitable principles (regardless of whether enforcement is sought in a
proceeding in equity or at law).
vi. None of (A) the execution and delivery by the Fund of the Agreement or
the Fund Agreements, (B) the issue, sale and delivery by the Fund of the
Securities as contemplated by the Agreement and (C) the performance by the Fund
of its obligations under the Agreement and the Fund Agreements or consummation
by the Fund of the other transactions contemplated by the Agreement or the Fund
Agreements result in (i) the creation or imposition of any lien, charge or
encumbrance upon the assets of the Fund pursuant to any agreement or instrument
to which the Fund is a party or by which the Fund is bound that is described in
the Registration Statement, the Disclosure Package or the Prospectus or filed as
an exhibit to the Registration Statement, or (ii) conflicts with or will
conflict with, or results or will result in a breach or violation of (a) the
Declaration of Trust or the By-laws of the Fund or (b) any agreement or
instrument to which the Fund is a party or by which the Fund is bound that is
described in the Registration Statement, the Disclosure Package or the
Prospectus or filed as an exhibit to the Registration Statement or (c) any
federal or State of Illinois statute, law or regulation (except we express no
opinion as to applicable state securities and blue sky laws, and except that the
indemnification provisions in the Agreement and the Fund Agreements, insofar as
they relate to indemnification for liabilities arising under the Securities Act,
may be against public policy as expressed in the Securities Act and therefore
unenforceable) or (d) order of any court, governmental instrumentality,
securities exchange or association or arbitrator, whether foreign or domestic,
specifically naming the Fund and known to us (provided that we express no
opinion with respect to any financial test or cross-default provision in any
such agreement).
vii. No consent, approval, authorization or order of any court (to our
knowledge) or governmental agency or body or securities exchange or association
is required by the Fund for the consummation by the Fund of the transactions to
be performed by the Fund or the performance by the Fund of all the terms and
provisions to be performed by or on behalf of it in each case as contemplated in
the Agreement and the Fund Agreements, except such as (A) have been obtained
under the Act and the Investment Company Act and (B) may be required under state
securities or "blue sky" or the NYSE Amex in connection with the issuance and
sale of the Securities pursuant to the Agreement.
viii. To our knowledge, there are no contracts or other documents which
are required to be described in the Registration Statement, the Disclosure
Package and the Prospectus or filed as exhibits to the Registration Statement by
the Act or the Investment Company Act which have not been described in the
Registration Statement, the Disclosure Package and the Prospectus or filed as
exhibits to the Registration Statement;
ix. The sections in the Prospectus entitled "Certain Provisions in the
Declaration of Trust and By-laws" and "Tax Matters" and the section in the
Statement of Additional Information entitled "Tax Matters" is a fair and
accurate summary of the principal United States federal income tax rules
currently in effect applicable to the Fund and to the purchase, ownership and
disposition of the Securities, subject to the qualifications therein.
x. To our knowledge, there is no legal or governmental proceeding pending
against the Fund that is either (i) required to be described in the Registration
Statement, the Disclosure Package or Prospectus that is not already described or
(ii) asserts the invalidity of any of the Fund Agreements.
xi. The Registration Statement, the Preliminary Prospectus, the Prospectus
and each amendment or supplement to the Registration Statement, the Preliminary
Prospectus and/or the Prospectus, as of their respective effective or issue
dates (other than the financial statements, the notes thereto, and supporting
schedules included therein or omitted therefrom, as to which we express no view)
and the Fund Agreements complied or comply in all material respects to the
requirements of the Securities Act and the Investment Company Act.
In addition, we have participated in conferences with officers and other
representatives of the Fund, representatives of the independent registered
public accountants for the Fund, and representatives of the Underwriters and
their counsel, at which the contents of the Registration Statement, the
Disclosure Package and Prospectus and related matters were discussed. We have
not independently verified and are not passing upon, and do not assume any
responsibility for, the accuracy, completeness or fairness of the information
included in the Registration Statement, the Disclosure Package and the
Prospectus. Based solely on the participation and discussion described above,
however, nothing has come to our attention that would lead us to believe that
the Registration Statement (except for financial statements and schedules and
other financial or accounting data included therein, as to which we need make no
statement) at the time such Registration Statement 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; or that the Preliminary Prospectus or the Prospectus (except for
financial statements and schedules and other financial or accounting data
included therein, as to which we need make no statement), at the time filed
pursuant to Rule 497 and on the date hereof, included or includes an untrue
statement of a material fact or omitted or omits to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
EXHIBIT 5(E) (CONT'D)
FORM OF OPINION OF FUND MASSACHUSETTS COUNSEL
i. The Fund (i) has been formed and is validly existing under the Fund's
Declaration of Trust (the "Declaration") and the laws of the Commonwealth of
Massachusetts as a voluntary association with transferable shares of beneficial
interest commonly referred to as a "Massachusetts business trust", (ii) is in
good standing with the Secretary of the Commonwealth and (iii) has full power as
a business trust to (a) conduct all the activities conducted by it, (b) to own
or lease all assets owned (or to be owned) or leased (or to be leased) by it and
(c) to conduct its business, in each case as described in the Disclosure
Package, the Prospectus Supplement and the Registration Statement.
ii. The Fund is authorized under its Declaration to issue an unlimited
number of Common Shares. The description of the Common Shares contained in the
first, second and fourth sentences under the caption "DESCRIPTION OF
SHARES--Common Shares" in the Disclosure Package, the prospectus Supplement and
the Registration Statement conforms in all material respects to the terms
thereof contained in the Fund's Declaration. The Securities to be issued and
delivered to and paid for in accordance with the Underwriting Agreement against
payment therefore as provided by the Underwriting Agreement have been duly
authorized and when issued and delivered as so provided in the Underwriting
Agreement will have been validly issued and will be fully paid and (except as
set forth under the caption "CERTAIN PROVISIONS IN THE DECLARATION OF TRUST AND
BY-LAWS" in the Disclosure Package and the Prospectus Supplement ) non
assessable. No person has any preemptive right in respect of the Securities
pursuant to the Declaration, the By-Laws or Massachusetts law, or to our
knowledge, otherwise.
iii. The Fund has full power as a business trust to enter into the
Underwriting Agreement, the Advisory Agreement, the Custody Agreement and the
Transfer Agency Agreement (collectively, the "Fund Agreements") and to perform
all of the terms and provisions required by such Agreements to be performed by
it and each such Agreement has been duly and validly authorized, executed and
delivered by the Fund.
iv. None of (i) the execution and delivery by the Fund of the Fund
Agreements, (ii) the issuance and sale by the Fund of the Securities as
contemplated by the Underwriting Agreement or (iii) the performance by the Fund
of its obligation under the Fund Agreements or consummation by the Fund of the
transactions contemplated by the Fund Agreements will result in a violation of
the provisions of the Declaration or By-Laws of the Fund, or any material
Massachusetts law, ordinance, rule or regulation applicable to the Fund which in
our experience is normally applicable to transactions of the type contemplated
by the Underwriting Agreement (except for any Massachusetts securities law, rule
or regulation, about which we express no opinion), or order of any Massachusetts
court, governmental instrumentality, securities exchange or association or
arbitrator, specifically naming the Fund and known to us.
v. As far as we know, no consent, approval, authorization, or order of any
Massachusetts governmental agency or body, securities exchange or association or
Massachusetts court, is required by the Fund for the consummation by the Fund of
the transactions to be performed by the Fund, or the performance by the Fund of
all the terms and provisions to be performed by or on behalf of it in each case
as contemplated by the Fund Agreements, except such as may be required under any
Massachusetts securities laws, rule or regulation, about which we express no
opinion.
EXHIBIT 5(F)
FORM OF OPINION OF ADVISER COUNSEL
i. The Adviser has been duly formed and is validly existing as a limited
partnership under the laws of the State of Illinois with full power and
authority to own or lease all of the assets owned or leased by it and to conduct
its business as described in the Registration Statement, the Disclosure Package
and Prospectus and to enter into and perform its obligations under the
Agreement, the Advisory Agreement and the Sub-Advisory Agreement (collectively,
the "Adviser Agreements).
ii. The Adviser is duly registered as an investment adviser under the
Advisers Act and is not prohibited by the Advisers Act or the Investment Company
Act from acting as investment adviser for the Fund as contemplated by the
Advisory Agreement, the Registration Statement, the Disclosure Package and the
Prospectus. To such counsel's knowledge, there does not exist any pending or
threatened proceeding which could reasonably be expected to adversely affect the
registration of the Adviser with the Commission.
iii. The Adviser has full power and authority to enter into each of the
Adviser Agreements and to carry out all the terms and provisions thereof to be
carried out by it, and each of the Adviser Agreements has been duly and validly
authorized, executed and delivered by the Adviser; each Adviser Agreement
complies in all material respects with all provisions of the Securities Act,
Investment Company Act and the Advisers Act; and assuming due authorization,
execution and delivery by the other parties thereto, each of the Advisory
Agreement and the Sub-Advisory Agreement constitutes a legal, valid and binding
obligation of the Adviser, enforceable against the Adviser in accordance with
its terms, subject, as to enforcement, to applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally and to general equitable
principles (regardless of whether enforcement is sought in a proceeding in
equity or at law).
iv. Neither (A) the execution and delivery by the Adviser of any Adviser
Agreement nor (B) the consummation by the Adviser of the transactions
contemplated by, or the performance of its obligations under any Adviser
Agreement conflicts or will conflict with, or results or will result in a breach
of, the organizational documents of the Adviser or any agreement or instrument
known to us to which the Adviser is a party or by which the Adviser is bound, or
any federal or Illinois law, rule or regulation, or order of any court,
governmental instrumentality, securities exchange or association or arbitrator,
whether foreign or domestic, specifically naming the Adviser and known to us,
except in each case for such conflicts or breaches which would not reasonably be
expected, either alone or in the aggregate, to have a material adverse effect on
the Adviser's ability to perform its obligations under the Adviser Agreements,
provided, that we express no opinion with respect to any financial test or
cross-default provision in any such Adviser Agreement.
v. No consent, approval, authorization or order of any court (to our
knowledge), of any governmental agency or body or securities exchange or
association, whether foreign or domestic, is required for the consummation by
the Adviser of the transactions contemplated in, or the performance by the
Adviser of its obligations under, any Adviser Agreement, except (i) such as have
been obtained under the federal securities laws and (ii) may be required by the
NYSE Amex or under state securities or "blue sky" laws, in connection with the
issuance and sale of the Securities pursuant to the Agreement.
vi. To our knowledge, there is no legal or governmental proceeding pending
against the Adviser that is either (i) required to be described in the
Registration Statement, the Disclosure Package or Prospectus that is not already
described, (ii) which would, under Section 9 of the Investment Company Act, make
the Adviser ineligible to act as the Fund's investment adviser or (iii) asserts
the invalidity of any of the Advisor Agreements.
vii. There are no contracts or other documents which are required to be
described in the Registration Statement, the Disclosure Package and the
Prospectus or filed as exhibits to the Registration Statement by the Securities
Act or the Investment Company Act which relate to the Adviser and have not been
described in the Registration Statement, the Disclosure Package and the
Prospectus or filed as exhibits to the Registration Statement.
viii. The description in the Disclosure Package and the Prospectus of the
Adviser and its business complies in all material respects with all applicable
requirements of the Securities Act and the Investment Company Act.
In addition, we have participated in conferences with officers and other
representatives of the Adviser, representatives of the independent registered
public accountants for the Fund, and representatives of the Underwriters and
their counsel, at which the contents of the Registration Statement, the
Disclosure Package and the Prospectus and related matters were discussed. We
have not independently verified and are not passing upon, and do not assume any
responsibility for, the accuracy, completeness or fairness of the information
included in the Registration Statement, the Disclosure Package and the
Prospectus. Based solely on the participation and discussions described above,
however, nothing has come to our attention that would lead us to believe that
solely with respect to the description of the Adviser, the Registration
Statement (except for financial statements and schedules and other financial or
accounting data included therein, as to which we need make no statement) at the
time such Registration Statement 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; or that the
Preliminary Prospectus or the Prospectus (except for financial statements and
schedules and other financial or accounting data included therein, as to which
we need make no statement), at the time filed pursuant to Rule 497 and on the
date hereof, included or includes an untrue statement of a material fact or
omitted or omits to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
EXHIBIT 5(G)
FORM OF OPINION OF SUB-ADVISER COUNSEL
i. The Sub-Adviser has been duly formed and is validly existing as a
limited liability company under the laws of the State of Delaware with full
power and authority to conduct its business as described in the Registration
Statement, the Disclosure Package and Prospectus and to enter into and perform
its obligations under the Agreement and the Sub-Advisory Agreement
(collectively, "Sub-Adviser Agreements").
ii. The Sub-Adviser is duly registered as an investment adviser under the
Advisers Act and, to our knowledge, is not prohibited by the Advisers Act or the
Investment Company Act from acting as investment adviser for the Fund as
contemplated by the Sub-Advisory Agreement, the Registration Statement, the
Disclosure Package and the Prospectus. To such counsel's knowledge, there does
not exist any pending or threatened proceeding, which could reasonably be
expected to adversely affect the registration of the Sub-Adviser with the
Commission.
iii. The Sub-Adviser has full power and authority to enter into the
Sub-Adviser Agreements and to carry out the terms and provisions thereof to be
carried out by it, and each of the Sub-Adviser Agreements has been duly and
validly authorized, executed and delivered by the Sub-Adviser; each Sub-Adviser
Agreement complies in all material respects with the Securities Act, the
Investment Company Act and the Advisers Act; and assuming due authorization,
execution and delivery by the other parties thereto, each of the Sub-Adviser
Agreements constitutes a legal, valid and binding obligation of the Sub-Adviser,
enforceable against the Sub-Adviser in accordance with its terms, (1) subject,
as to enforcement, to applicable bankruptcy, insolvency and similar laws
affecting creditors' rights generally and to general equitable principles
(regardless of whether enforcement is sought in a proceeding in equity or at
law) and (2) except as rights to indemnity thereunder may be limited by federal
or state securities laws.
iv. Neither (A) the execution and delivery by the Sub-Adviser of any
Sub-Adviser Agreement nor (B) the consummation by the Sub-Adviser of the
transactions contemplated by, or the performance of its obligations under, any
Sub-Adviser Agreement conflicts or will conflict with, or results or will result
in a breach of, the organizational documents of the Sub-Adviser or any agreement
or instrument known to us to which the Sub-Adviser is a party or by which the
Sub-Adviser is bound, or any federal or Delaware law, rule or regulation, or
order of any court, governmental instrumentality, securities exchange or
association or arbitrator, whether foreign or domestic, specifically naming the
Sub-Adviser and known to us, except in each case for such conflicts or breaches
which would not reasonably be expected, either alone or in the aggregate, have a
material adverse effect on the Sub-Adviser's ability to perform its obligations
under the Sub-Adviser Agreements; provided that we express no opinion with
respect to any financial test or cross-default provision in any such agreement
or instrument.
v. No consent, approval, authorization or order of any court (to our
knowledge), governmental agency or body or securities exchange or association,
whether foreign or domestic, is required for the consummation by the Sub-Adviser
of the transactions contemplated in, or the performance by the Sub-Adviser of
its obligations under, any Sub-Adviser Agreement, except (i) such as have been
obtained under the federal securities laws and (ii) may be required by state
securities or "blue sky" laws, in connection with the issuance and sale of the
Securities pursuant to the Agreement.
vi. To our knowledge, there is no legal or governmental proceeding pending
or threatened against the Sub-Adviser that is either (i) required to be
described in the Registration Statement, the Disclosure Package or Prospectus
that is not already described, (ii) which would, under Section 9 of the
Investment Company Act, make the Sub-Adviser ineligible to act as the Fund's
investment adviser or (iii) asserts the invalidity of any of the Sub-Adviser
Agreements.
vii. There are no contracts or other documents that are required to be
described in the Registration Statement, the Disclosure Package and the
Prospectus or filed as exhibits to the Registration Statement by the Securities
Act or the Investment Company Act that relate to the Sub-Adviser and have not
been described in the Registration Statement, the Disclosure Package and the
Prospectus or filed as exhibits to the Registration Statement.
viii. The description in the Disclosure Package and the Prospectus of the
Sub-Adviser and its business complies in all material respects with all
applicable requirements of the Securities Act and the Investment Company Act.
In addition, we have participated in discussions with representatives of
the Sub-Adviser where the contents of the Registration Statement, the Disclosure
Package and the Prospectus, so far as they relate to the Sub-Adviser, were
discussed and we have reviewed certain records and documents of the Sub-Adviser.
We have not independently verified and are not passing upon, and do not assume
any responsibility for, the accuracy, completeness or fairness of the
information and statements included in the Registration Statement, the
Disclosure Package and the Prospectus. Based solely on the discussions described
above, however, nothing has come to our attention that would lead us to believe
that solely with respect to the description of the Sub-Adviser, the Registration
Statement (except for financial statements and schedules and other financial or
accounting data included therein, as to which we need make no statement) at the
time such Registration Statement 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; or that the
Preliminary Prospectus or the Prospectus (except for financial statements and
schedules and other financial or accounting data included therein, as to which
we need make no statement), at the time filed pursuant to Rule 497 and on the
date hereof, included or includes an untrue statement of a material fact or
omitted or omits to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
EXHIBIT 5(I)
FUND OFFICER CERTIFICATE
------------------------
The undersigned, the duly qualified and elected _______________________ of
Energy Income and Growth Fund (the "FUND"), does hereby certify in such capacity
and on behalf of the Fund, pursuant to Section 5 (i) of the Underwriting
Agreement dated November 19, 2010 (the "UNDERWRITING AGREEMENT") between the
Fund, First Trust Advisers L.P., Energy Income Partners LLC and the several
Underwriters named in Schedule A to the Underwriting Agreement, that to the best
of the knowledge of the undersigned:
(i) The representations and warranties of the Fund in Section 1(a) of the
Underwriting Agreement are true and correct on and as of the date hereof, with
the same force and effect as if expressly made on and as of the date hereof; and
(ii) The Fund has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied pursuant to the Underwriting
Agreement at or prior to the date hereof.
By:_________________________
Name:
Title:
Date:
EXHIBIT 5(I) CONT'D)
ADVISER OFFICER CERTIFICATE
---------------------------
The undersigned, the duly qualified and elected _______________________ of
First Trust Advisers L.P. (the "ADVISER"), an Illinois limited partnership, does
hereby certify in such capacity and on behalf of the Adviser, pursuant to
Section 5(i) of the Underwriting Agreement dated November 19, 2010 (the
"UNDERWRITING AGREEMENT") between the Adviser, Energy Income and Growth Fund,
Energy Income Partners LLP and the several Underwriters named in Schedule A to
the Underwriting Agreement, that to the best of the knowledge of the
undersigned:
(i) The representations and warranties of the Adviser in Section 1(b) of
the Underwriting Agreement are true and correct on and as of the date hereof,
with the same force and effect as if expressly made on and as of the date
hereof; and
(ii) The Adviser has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied pursuant to the Underwriting
Agreement at or prior to the date hereof.
By: _________________________
Name:
Title:
Date:
EXHIBIT 5(I) CONT'D)
SUB-ADVISER OFFICER CERTIFICATE
-------------------------------
The undersigned, the duly qualified and elected _______________________ of
Energy Income Partners LLC (the "SUB-ADVISER"), a Delaware limited liability
company, does hereby certify in such capacity and on behalf of the Sub-Adviser,
pursuant to Section 5(i of the Underwriting Agreement dated November 19, 2010
(the "UNDERWRITING AGREEMENT") between the Sub-Adviser, First Trust Advisors
L.P., Energy Income and Growth Fund and the several Underwriters named in
Schedule A to the Underwriting Agreement, that to the best of the knowledge of
the undersigned:
(i) The representations and warranties of the Sub-Adviser in Section 1(c)
of the Underwriting Agreement are true and correct on and as of the date hereof,
with the same force and effect as if expressly made on and as of the date
hereof; and
(ii) The Sub-Adviser has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied pursuant to the Underwriting
Agreement at or prior to the date hereof.
By: _________________________
Name:
Title:
Date:
